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The procedure for filing a complaint against a lawyer


The procedure for filing a complaint against a lawyer
By Kishan Retired Judge A complaint against an advocate needs to be filed through the mode of a petition. It is to be duly signed and verified as needed under the Code of Civil Procedure. A complaint is often filed either in English or Hindi or, in any regional language where the language has been declared to be a state language. In those cases where the complaint is in Hindi or another regional language, the State Bar Council shall translate the complaint into English whenever a disciplinary matter is shipped to the Bar Council of India as per the Advocates Act. Every complaint shall be attachedwith the fees prescribed bythe Bar Council of India Rules.

Lawyers are the medium through which his client connects with the judiciary. However, as the demand for the legal industry has increased, it is also noticed that mishaps in this industry have increased. Some lawyers tend to use this situation to extract a hefty amount of money from their clients without providing proper services. To combat this situation, a person can file a legal complaint against the lawyer if he/she is not satisfied with the service provided by the legal person.


Following are the steps to file a complaint against a lawyer

Step 1: A complaint against an advocate needs to be filed through the mode of a petition. It is to be duly signed and verified as needed under the Code of Civil Procedure. A complaint is often filed either in English or Hindi or, in any regional language where the language has been declared to be a state language. In those cases where the complaint is in Hindi or another regional language, the State Bar Council shall translate the complaint into English whenever a disciplinary matter is shipped to the Bar Council of India as per the Advocates Act. Every complaint shall be attached with the fees prescribed by the Bar Council of India Rules.

Step 2: The Secretary of the Bar Council may require the complainant to pay the prescribed fees if the right fee has not been paid. He/she can also call the complainant to cater to any defects and attach the particulars or copies of the complaint or other documents which needs to be further submitted. On a complaint being found, it shall be registered and placed before the Bar Council for such order which may deem fit to be passed.

Step 3:The complaint can be dropped solely due to it having being withdrawn, settled, or because the complainant doesn't want to proceed with the inquiry. Before referring a complaint about the misconduct of an advocate to its disciplinary committee, the Bar Council may require the complainant to further furnish any required particulars within a time fixed by the Council.

Step 4: Once the Bar Council has referred the complaint to a Disciplinary Committee, the Registrar should expeditiously send a notice to the advocate. The notice will ask the concerned advocate to point out cause within a specified date on the complaint made against him and to submit the statement of defence, documents, and affidavits in support of the defence. It will also further inform him that just in case of his non-appearance on the fixed date of hearing, the matter shall be heard and determined in his absence. An appearance usually includes the presence of an advocate or through a duly authorized representative.

Step 5: The Chairman of the Disciplinary Committee will fix the date, hour, and place of the inquiry. This date won't ordinarily be later than thirty days from the receipt of the reference. The Registrar is responsible for giving notice of the date, hour, and place to the complainant or other person aggrieved, the advocate concerned,the Attorney General or the extra lawman of India or the Advocate General, in simple language, to whom so ever, the case is concerned.

Step 6: The notices shall, subject to necessary modification, be in Form Nos. E-1 and E-2. It shall be sent to the advocates appearing for the parties. Notice to a celebration not appearing by the advocate shall be sent to the address as furnished within the complaint or the grounds of appeal. The value of the notices shall be borne by the complainant unless the Disciplinary Committee otherwise directs. The notices could also be sent ordinarily through messenger or by registered mail and served on the advocate or the party concerned or his agent or another person as provided in the Civil Procedure Code.

Step 7: Parties can appear face to face or through an advocate who should file a vakalatnama giving the name of the Bar Council, his residential address, phone number if any, and his address for service of notices.The Bar Council or its Disciplinary Committee may at any stage of the proceeding appoint an advocate whose role will be amicus curie, i.e. a friend of the court. Such an advocate could also be paid such a fee depending upon the decision of the Council or the Committee.

Proviso: If in an inquiry on a complaint received, either the complainant or the respondent does not appear before the Disciplinary Committee despite service of notice, the Committee may proceed ex-parte or direct fresh notice to be served.

Any such order for proceeding ex-parte could also be put aside on sufficient cause being shown, when an application is formed supported by an affidavit, within 60 days of the passing of the ex-parte order. The provisions of Section 5 of the Limitation Act, 1963 shall apply to the present sub-rule.


Proceedings and Exhibits-

The Disciplinary Committee shall hear the Attorney General or the extra lawman of India or the Advocate General because the case could also be or their advocate and parties or their advocates.

The matters can be heard and determined based on documents and affidavits. Cross-examination is not permitted unless the committee believes that it is in the interest of justice to permit cross-examination of the parties or to take oral evidence, in which case the procedure for the trial of civil suits shall as far as possible be followed. On every document admitted, the subsequent endorsement shall be made which shall be signed by the Chairman or any member of the Committee:

The exhibits shall be marked as follows: –

  • Those of the complainant as C1, C2, and so on.
  • Those of Respondent as R1, R2, and so on.
  • Those of Disciplinary Committee as D1, D2, and so on.
  • The Disciplinary Committee may, at any direct the parties or their advocates to furnish such further and better particulars, because it considers necessary.


Recording of Evidence-

Any member of the Committee or any other person authorized by the committee shall record the evidence given before the Disciplinary Committee, preferably in English. The evidence so recorded shall be signed by the Chairman or by the other member of the committee if the Chairman isn't available.

In the case where the records of evidence are in any other language than English,then the same has to be sent to the Bar Council of India or its Disciplinary Committee, then an equivalent has to be translated into English. Such a translation thereof in English has to be made by an individual nominated by Committee or Registrar.


Dropping of Enquiries on Certain Grounds-

In the case of the death of the complainant during the inquiry proceedings (and if no representative is willing to conduct the case), the Disciplinary Committee may be having regard to the allegations made in the complaint and the evidence available, make a suitable order either to proceed with the inquiry or to drop it.

In the case of an inquiry against one advocate only, on his death, the Disciplinary Committee shall record the fact of such death and drop the proceedings.

Where the inquiry is against more than one advocate, on the death of 1 of them, the Disciplinary Committee may continue the inquiry against the other advocate unless it decides otherwise.

Step 8: All proceedings before a Disciplinary Committee of the Bar Council shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code. The Disciplinary Committee of the State Bar Council, after giving the advocate concerned and therefore the Advocate-General a chance of being heard, may make any of the subsequent orders, namely:

  • dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed;
  • reprimand the advocate;
  • suspend the advocate from practice for such period as it may deem fit;
  • remove the name of the advocate from the State roll of advocates


Appeal

Appeal to the Bar Council of India- a person aggrieved by order of the Disciplinary Committee of a State Bar Council made under section 35, or the Advocate-General of the State may, within sixty days of the date of the communication of the order, prefer an appeal to the Bar Council of India. The Disciplinary Committee shall hear every such appeal of the Bar Council of India which may pass such order including an order varying the punishment awarded by the Disciplinary Committee of the State Bar Council thereon as it deems fit. However, as long as no order of the Disciplinary Committee of the State Bar Council shall be varied by the Disciplinary Committee of the Bar Council of India to prejudicially affect the person aggrieved without giving him reasonable opportunity of being heard.

An appeal to the Council from the State Bar Council shall be in the form of a memorandum in writing. If the appeal is in other languages apart from English, it shall be translated into English. In every appeal, all persons who were parties to the first proceedings alone shall be impleaded as parties. In an appeal by the advocate against an order for misconduct, in case of death of the complainant, the legal representatives of the complainant shall be made parties. The appeal has to be presented on or before the last day of limitation. Any appeal could also be admitted after the amount of limitation if the appellant satisfies the Disciplinary Committee that he has sufficient cause for not preferring the appeal within such a period. An affidavit shall support any such application for condonation of delay.

The memorandum of appeal shall contain necessary particulars as in Form G. The memorandum of appeal shall state when the order was communicated to the appellant with the time mentioned.

Along with the memorandum of appeal, the appellant shall file:

  • The certified copy of the order appealed against, signed by the Registrar of the Disciplinary Committee, or
  • If there is only one respondent, five additional copies of the memorandum of appeal and the order appealed against.
  • If there is more than one Respondent, such number of additional copies as may be necessary.

All copies shall be certified as true copies by the appellant or by his counsel. Every memorandum of appeal shall be amid the prescribed fees in cash. If the papers filed in an appeal aren't sufficient, the Registrar shall require the appellant to get rid of such defects within a specified time.

Exhibits and Records in Appeal-

The appellant shall be required to file six typed sets of the papers properly paged and indexed if there's just one respondent. In the case of multiple respondents, as many sets as there may respondents, for the use of the Disciplinary Committee and by the other parties and for the record.

The papers to be filed are: –

  • The complaint and the statement in defence of the advocate.
  • The oral and documentary evidence and such other papers on which parties shall rely.
  • Any other part of the record as may be directed by the Committee.

Where any of the above papers are in a language other than English, English translations thereof will be filed. The respondent shall, if he so desires, or if so-called upon, file six sets of typed papers of any a part of the record on which he intends to rely. He shall also file English translations of papers that aren't in English.

Appeal to the Supreme Court-

Any person aggrieved by an order made by the Disciplinary Committee of the Bar Council of India under section 36 or section 37 or the Attorney-General of India or the Advocate-General of the State concerned, because the case could also be, may within sixty days of the date on which the order is communicated to him, prefer an appeal to the Supreme Court and thus the Supreme Court may pass such order including an order varying the punishment awarded by the Disciplinary Committee of the Bar Council of India thereon as it deems fit. Provided that no order of the Disciplinary Committee of the Bar Council of India shall be varied by the Supreme Court to prejudicially affect the person aggrieved without giving him a reasonable opportunity of being heard.


Conclusion

We live in a country where most of us are dependent upon the judicial power of the court as most of us trust the legal system of our country. The constitution of India under Article 21 grants every citizen of India the “Right to Speedy Justice”, and if this is delayed or hindered due to any reason, then it is a clear violation of the fundamental right of an individual. These scenario arises when lawyers instead of providing justice to the clients shift their focus in extracting money from their clients which in turn leads to a difficult situation in India, as people here rely upon the judicial system for any trouble faced due to legalities of the country. Therefore, it becomes of utmost importance that an individual chooses a lawyer very carefully as this whole process is financially as well as emotionally draining.



Posted On : November 25, 2020

Written By :
Kishan Dutt Kalaskar Retired Judge
Kishan Dutt Kalaskar Retired Judge
Bangalore | Kolkata | Mumbai | Hyderabad | Chennai |
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