To err is human. Even a well qualified, experienced professional is prone to commit occasional mistakes or errors of judgment.
Do all cases of professional negligence amount to professional misconduct?
Such a harsh standard will have a freezing effect on abilities of professionals, making them insecure and fearful. At the same time, too lax a rule will lead to dip in standards and accountability, affecting the rights of clients.
Therefore, the Courts have adopted a balanced approach in this regard.
To determine whether a professional has been negligent or not, she has to be judged like an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which she practices (See : Jacob Mathew vs. State of Punjab & Anr. (2005) 6 SCC 1)
A professional may be held liable for negligence on one of the two findings :
Negligence should be coupled with moral turpitude or delinquency to be misconduct
The Constitution Bench of Supreme Court in the case In the matter of 'P' an Advocate AIR 1963 SC 1313, drew a distinction between 'negligence' and 'gross negligence'.
The key takeaways from that case, where the Court was dealing with the alleged misconduct on the part of an Advocate on Record, are :
Improper legal advice not always misconduct
In P D Khandekar v Bar Council of Maharashtra and Goa AIR 1984 SC 110, the Supreme Court was dealing with the challenge against punishment imposed on two advocates on findings of misconduct.
They were alleged to have given improper legal advice in two cases. In one case, they allegedly advised a man and woman that their remarriage was possible by merely affirming in an affidavit they they had divorced their respective spouses. In another case, a woman acted upon their alleged advise that a gift of immovable property can be done by way of an affidavit.
While deciding the matter, the apex court observed :
There is a world of difference between the giving of improper legal advice and the giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct.
The Court agreed with the factual findings of the Disciplinary Committee that the advocates had given improper legal advice. However, that by itself will not support the charge of misconduct, as there was no finding that they acted with moral turpitude, added the Court.
"It appears to us that there was abundant evidence upon which the Disciplinary Committee could find the appellant and Agavane guilty of giving wrong legal advice, but there is considerable doubt whether upon such evidence the charge of professional misconduct can be supported. In the instant case, it is not at all certain that it can be said with strict accuracy that the appellant was guilty of moral turpitude or that there was any moral delinquency an his part", observed the top court while setting aside the penalty
Mere negligence not professional misconduct
In a case, a client entrusted with his advocate a dishonoured cheque for filing a complaint under Section 138 of the NI Act. The advocate thought it was better to file a complaint for cheating under Section 420 IPC, and therefore filed a petition before Magistrate under Section 156(3) CrPC.
The client approached the Bar Council stating that the advocate failed to file complaint under NI Act and did not return the cheque to him. The advocate said that he had returned the cheque and he thought that Section 420 IPC complaint was a better legal course than NI Act.
The Disciplinary Committee of the Bar Council held the advocate to be guilty of misconduct. It observed that the advocate should have obtained acknowledgment receipt from the client if he had returned the cheque.
Setting aside the findings of the Disciplinary Committee, the Supreme Court said that the act of the advocate cannot be termed as "gross negligence".
"the act of the present appellant cannot be treated to be in the realm of gross negligence. It would be only one of negligence. The tenor of the impugned order, as we notice, puts the blame on the appellant on the foundation that he had not received the acknowledgment. He has offered an explanation that he had given the cheque to the police. There has been no delineation in that regard. That apart, there is no clear cut analysis on deliberation on gross negligence by the advocate.", the Court concluded (Kathira Kunju T A v Jacob Mathews AIR 2017 SC 1041).
Mere Negligence Of Advocate Not Misconduct: SC [Read Judgment]
No criminal liability for erroneous legal opinion
In a case, the CBI named a panel advocate of a bank as an accused in a corruption case registered against bank officials for defrauding the bank through irregular sanctioning of loans after accepting illegal gratification. It was alleged that the advocate, who had vetted the documents, failed to point out irregularities in ownership details of buildings and to detect the defects in building permissions claimed to have been obtained by the builders.
The proceedings against him were quashed by the High Court under Section 482 CrPC. Against this, the CBI approached the Supreme Court.
The apex court observed that the mistakes on the part of advocate will not by themselves mean that he had conspired with the other accused to defraud the bank.
"the liability against an opining advocate arises only when the lawyer was an active participant in a plan to defraud the Bank. In the given case, there is no evidence to prove that [the lawyer] was abetting or aiding the original conspirators".
The CBI's appeal was dismissed by observing :
"it is beyond doubt that a lawyer owes an 'unremitting loyalty' to the interests of the client and it is the lawyer's responsibility to act in a manner that would best advance the interest of the client. Merely because his opinion may not be acceptable, he cannot be mulcted with the criminal prosecution, particularly, in the absence of tangible evidence that he associated with other conspirators. At the most, he may be liable for gross negligence or professional misconduct if it is established by acceptable evidence and cannot be charged for the offence under S.420 and S.109 of IPC along with other conspirators with out proper and acceptable link between them. It is further made clear that if there is a link or evidence to connect him with the other conspirators for causing loss to the institution, undoubtedly, the prosecuting authorities are entitled to proceed under criminal prosecution. Such tangible materials are lacking in the case of the respondent herein." (CBI v K Narayana Rao (2012) 9 SCC 512)