WHAT ARE DUTIES OF AN ADVOCATE TOWARDS CLIENTS ?

Advocacy is noble profession. Advocates are officers of the court and play critical role in administration of justice. An advocate has several duties towards court, client, colleague and opponent. In this article we will survey important duties of an advocate towards  client including important rules providing for standards of professional conduct and etiquette for advocates under Chater II of Part VI of Bar Council of India Rules.

NOT TO ABUSE CONFIDENCE OF CLIENT

Advocate’s relationship with client is of fiduciary nature. Rule 24 provides that an advocate will not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client. Rule 15 provides that it shall be duty of an advocate to fearlessly uphold interests of his client by all fair and reasonable means without regard to any unpleasant consequences to himself or any other.

In V. C. Rangadurai Vs D Gopalan (1979) 1SCC308  the  advocate after getting  briefs has not filed suits. The Supreme Court observed that the monopoly conferred on the legal profession by Parliament is coupled with a responsibility to towards people, especially the poor. Every delinquent who deceives his client deserves to be frowned upon.

In P. D. Khandekar Vs. Bar Council of Maharastra (1984) 2 SCC 556  the  advocate has been found guilty of misconduct by Bar Council of India  on the ground that he has tendered improper legal advise to the client. The Supreme Court observed that an advocate has to protect the interest of clients in relation to whom he occupies position of trust. The Supreme Court in appeal did not find sufficient evidence against the advocate and reversed the finding of the Bar  Council of India.

In D S Dalal Vs State Bank of India (1993 ) Supp (3) SCC 557 the  advocate has been engaged by SBI to file suit. The suit was filed and was returned by the Registry due to various objections. The same was not informed to the client SBI. The delinquent advocate was found guilty by Bar Council of India which was approved by the Supreme Court.

In Jonn D’Souza Vs. Edward Ani (1994 ) 2 SCC the advocate has not returned the will of the client which has been deposited with him in trust. The Supreme Court concurred with the finding of the Bar Council of India and held that the delinquent advocate was under duty to return the will as the same has been handed over to him in trust.

ACTING WITH AUTHORITY

Rule 19 imposed duty on advocate not to take any instruction other than client or his authorized representative.

In Narain Pandey Vs Pannalal Pandey (2013) 11 SCC 435 the Supreme Court upheld the order of the Disciplinary Committee of  Bar Council of India on the ground the delinquent advocate has without consent of  persons aggrieved  submitted forged settlement documents in consolidation proceedings.

MAINTAINING PROPER ACCOUNTS

Several duties have been imposed on Advocates regarding fee. Rule 23 prohibits an advocate from adjusting fee payable to him by his client against his own personal liability to the client. Rule 25 imposes duty on an advocate to maintain account of client. Rule 26 imposes duty on the advocate to maintain fee and expenses separately and prohibit an advocate from diverting money from expenses to fee. Rule 27 imposes duty on the advocate to intimate receipt of any money to the client. Rule 28 imposes duty on an advocate to return unexpended money after appropriating settled fee. Rule  29 imposes duty on an advocate to return unexpended money after appropriating fee as per rules of Court in case of unsettled fee.

In L C Goyal Vs Suresh Joshi (1999) 3 SCC 376 the advocate has received certain amount towards payment of court fee but neither deposited the same with Registry nor refunded the same to the client. When the client demanded the refund , cheque was issued which was dishonored due to insufficient balance. The Supreme Court concurred with the finding of the Disciplinary Committee of the Bar Council of India wherein the delinquent advocate has been found to be guilty of misconduct.

The Supreme Court in R. D. Saxena Vs. Balram Prasad Sharma (2000) 7 SCC 264 determined whether an advocate has lien over litigation papers against his unpaid fee. In this case the Bank has terminated the retainership of the advocate. The advocate has refused to return litigation papers till payment of pending fees. The Supreme Court held that an advocate does not have lien over litigation papers. The court held that litigations papers are not marketable goods under Section 171 of the Contract Act, 1872 as such no lien is created. The Court also noted that  Rule 28 and Rule 29 do not mention about any creation of lien.  The Court also noted that retention of records against unpaid remuneration will cause hinderances in pending judicial proceeding if the client changes his counsel.

NON- INVOLVEMENT OF PERSONAL INTEREST

Several rules have been imposed on advocate in respect of pursuing cases where he has personal interest. Rule 9 imposes duty on an advocate not to act or plead in a matter wherein he is himself pecuniarily interested. Rule 21 prohibits an advocate to buy or traffic in or stipulate for or agree to receive or interest in any actionable claim. Rule 22 prohibits an advocate from bidding any property sold in the execution of a decree or order in any suit, appeal or other proceedings in which he was professionally engaged. Rule 22A prohibits an advocate from bidding in court auction or acquire by way of sale, gift, exchange or any mode of transfer any property which is subject matter of any suit, appeal or other proceedings wherein he is professionally engaged.

In Rajendra V. Pai Vs. Alex Fernandes (2002) 4 SCC 212  there was large scale land acquisition  going on in the village of the delinquent advocate. Land belonging to his family members were also being acquired. The advocate contested land acquisition proceedings and in the process solicited work from other villagers and also fixed contingent fee. The Supreme Court concurred with the finding of the disciplinary committee of the Bar Council of India which has found the delinquent advocate guilty of misconduct but commuted quantum of punishment.

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