JULY 14, 2015

By R K Hasija, Advocate

LITIGANTS engage Advocates to represent them before various Courts/ Legal Forums for the reason that most of the litigants do not have professional knowledge of law and the skill to argue the matter. The duty of the Advocate is to argue the case of the client before the Court and to assist the court in arriving in the correct decision of the matter. Sometimes, situation arises when client feels that his case is not being represented properly or he feels that by changing the Advocate, his chances of success in the matter will be better. The question is whether a litigant can change his counsel during the pendency of the proceedings. Often in the corridors of the Courts/ Judicial Forums/Bar Rooms, a view is floated that "No Objection Certificate'' has to be obtained from the existing Advocate. Here is the analysis of the provisions relating to this issue and the law laid down so far.

2. The Advocates Act, 1961 was enacted to amend the law relating to legal practitioners and to provide for the constitution of the Bar Councils and an All-India Bar. Bar Council of India has inter alia made Rules on an advocates' duty towards fellow Advocates wherein Rule 5 reads as under :

5. Consent of fellow advocate to appear

An advocate should not appear in any matter where another advocate has filed a vakalat or memo for the same party. However, the advocate can take the consent of the other advocate for appearing.

In case, an advocate is not able to present the consent of the advocate who has filed the matter for the same party, then he should apply to the court for appearance. He shall in such application mention the reason as to why he could not obtain such consent. He shall appear only after obtaining the permission of the Court.

3. Perusal of the above rule reveals that it is only after taking consent of the existing Advocate who is already on record, the new Advocate can appear on behalf of his client. However, with the permission of the Court, he can appear even without consent of the existing Advocate on suitable application to the Court specifying why he could not obtain consent from the existing Advocate. Thus, it is the duty of the Advocate to obtain consent of the existing Advocate. However, practically, it is the litigant who is asked to obtain the consent from the existing advocate and on the basis of the consent so obtained, the new Advocate appears after filing his vakalat. But the problem may arise in a situation where the existing Advocate refuses to give consent and refuses to return the brief to the client to enable him to engage new Advocate. Situations like this are not uncommon. What a poor litigant can do in such a situation is the moot question.

4. The leading judgment of the Supreme Court on the issue is R.D.Saxena vs. Balram Prasad Sharma – AIR 2000 SC 3049 = [2000] 7 SCC 264. This was followed in New India Assurance Co. Ltd vs. A.K. Saxena in CA Appeal (Civil) No. 8957 of 2003 which was decided on 7 November 2003. In the first mentioned case, the issue was whether the advocate has a lien for his fees on the litigation papers entrusted to him by his client. In this case, the Bar Council of India, without deciding this crucial issue, has chosen to impose punishment on a delinquent advocate debarring him from practicing for a period of 18 months and a fine of Rs.1000/-. The advocate concerned was further directed to return all the case bundles which he got from his client without any delay. The matter went up to Supreme Court.

5. The facts leading to the above case are as follows: Appellant advocate was appointed as legal advisor to the Madhya Pradesh State Co- operative Bank Ltd. on retainer-ship basis and was also engaged by the said Bank to conduct cases in which the Bank was a party. However, somehow the said retainer-ship was terminated and the Bank requested the Advocate to return all the case files. The Advocate informed the Bank that the files would be returned only after settling his dues for which he forwarded a consolidated bill to the Bank showing an amount of Rs.97,100/- as the balance towards the legal remuneration. Respondent Bank denied any liability outstanding from them. As the cases were pending, the Bank was anxious to have the files for continuing the proceedings before the courts/tribunals concerned. Managing Director of the Bank, filed a complaint before the State Bar Council (Madhya Pradesh) alleging the appellant Advocate guilty of professional misconduct. In the reply submitted before the Bar Council,the Advocate claimed that he has a right to retain such files by exercising his right of lien and offered to return the files as soon as payment is made to him. The matter reached Bar Council of India which came to the conclusion that appellant is guilty of professional misconduct and thereby liable for punishment. Against the decision of the Bar Council, the matter came to the Supreme Court.

6. Learned counsel for the appellant advocate endeavored to base his contention on Section 171 of the Indian Contract Act which reads:

Bankers, factors, wharfingers, attorneys of a High Court and policy-brokers may, in the absence of a contract to the contrary, retain, as a security for a general balance of account, any goods bailed to them; but no other persons have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that effect.

7. The Supreme Court negated the contention by holding that files containing copies of the records (perhaps some original documents also) cannot be equated with the goods referred to Section 171. After examining Bar Council Rules, the Supreme Court held that even after providing a right for an advocate to deduct the fees out of any money of the client remaining in his hand at the termination of the proceeding for which the advocate was engaged, no lien is provided on the litigation files kept with him. The Apex Court added that in the conditions prevailing in India with lots of illiterate people among the litigant public it may not be advisable also to permit the counsel to retain the case bundle for the fees claimed by him. Any such lien if permitted would become susceptible to great abuses and exploitation.

8. The Supreme Court found yet another reason against giving approval to any such lien. It was observed that the cause in a court/tribunal is far more important for all concerned than the right of the legal practitioner for his remuneration in respect of the services rendered for espousing the cause on behalf of the litigant. If a need arises for the litigant to change his counsel during the proceedings which is more important, that should have its even course flowed unimpeded. Retention of records for the unpaid remuneration of the advocate would impede such course as also the cause and the pending judicial disposal would be badly impaired. The Apex Court by any an illustration observed that if a medical practitioner is allowed a legal right to withhold the papers relating to the treatment of his patient which he thus far administered to him for securing the unpaid bill that would lead to dangerous consequences for the uncured patient who is wanting to change his doctor. No professional can be given the right to withhold the returnable records relating to the work done by him with his clients' matter on the strength of any claim for unpaid remuneration. The alternative is that the professional concerned can resort to other legal remedies for such unpaid remuneration.

9. The Supreme Court further held that a litigant must have the freedom to change his advocate when he feels that the advocate engaged by him is not capable of espousing his cause efficiently or that his conduct is prejudicial to the interest involved in the lis or for any other reason. For whatever reason, if a client does not want to continue the engagement of a particular advocate it would be a professional requirement consistent with the dignity of the profession that he should return the brief to the client. The Apex Court thus held that such obligation is not only a legal duty but also a moral imperative.

10. The Supreme court further held that the words "of his choice" in Article 22(1) of the Constitution indicates that the right of the accused to change an advocate whom he once engaged in the same case, cannot be whittled down by that advocate by withholding the case bundle on the premise that he has to get the fees for the services already rendered to the client. The Apex Court indicated that the remedy to recover the fees from the client is elsewhere but not by way of lien to litigation papers. The Apex Court held that the refusal to return the files to the client when he demanded the same amounted to misconduct under Section 35 of the Act and the appellant advocate was held liable to punishment for such misconduct. With regard to the quantum of punishment, the Apex Court reduced the punishment to a mere reprimand in the interest of justice on the special facts of this case. However, the Supreme Court made it clear that if any advocate commits this type of professional misconduct in future he would be liable to such quantum of punishment as the Bar Council will determine and the lesser punishment imposed now need not be counted as a precedent.

11. The following conclusion emerges from the analysis of the above judgment:

++ Litigant can change his counsel.

++ Refusal to return the case papers to the client for want of pending fees amounts to misconduct which is liable to punishment.

++ An advocate has no lien to the case papers relating to the client.

++ An advocate cannot refuse to return the case papers for want of pending fees.

++ Remedy lies elsewhere for recovery of pending fees from the client.

(The author is Partner in M/s Lakshmikumaran and Sridharan based at Chandigarh.)