DUTIES OF AN ADVOCATE TOWARDS HIS CLIENT

DUTIES OF AN ADVOCATE TOWARDS HIS CLIENT

INTRODUCTION:

Bar Council of India Rules, 1975, Part VI, Chapter II, Section II, (Rules 11-33) provides the professional code of conduct and ethics to be followed by an advocate towards his client. An advocate needs to be polite, friendly and dedicated towards protecting the interests of his client without resorting to legal malpractices. Some of the duties of an advocate towards his client are that he should not reveal the secrets of his clients, should not give improper or illegal advice, should not indulge in conspiracy with the opposite party, should not accept bribes or gifts, should not present forged pieces of evidence, etc.

DUTIES OF AN ADVOCATE TOWARDS HIS CLIENT:

The following are the duties given in the Bar Council of India (BCI) Rules, 1975, Part VI, Chapter II, Section II, to be performed by an advocate for his client-

  • DUTY TO ACCEPT ANY CASE ON AGREED FEES– As per Rule 11 of the BCI Rules, an advocate must accept a brief in courts, tribunals, and charge fees according to his position or standing at the Bar and the type of the case. He should not exploit his client by charging exorbitant fees  A lawyer can refuse a brief only in some special circumstances.
  • DUTY TO NOT TO WITHDRAW FROM A CASE AFTER ACCEPTING IT– According to Rule 12 of the BCI Rules, an advocate shall not withdraw from any case or engagement after accepting it. An advocate can withdraw from a case either by citing sufficient reason for his withdrawal or by giving sufficient notice to his client. When an advocate decides to withdraw from a case he has to refund to his client any part of the unearned fee.

CASE-LAW:

Patel Maganlal Dhanijbhai v/s Patel Laxmidas Narainbhai Kasagara– In this case, an advocate requested to retire from this case and thus filed ‘no instruction pursis’. The trial court accepted his request and permitted him to withdraw from the case. However, the advocate neither provided his client sufficient reason to retire or sufficient notice and neither refunded the unearned fees as required by Rule 12 of the Advocates Act, 1961. A revision application was filed. The High Court quashed the order of the trial court and allowed the revision application stating that the trial court was either not aware of the aforesaid Rule or has failed to comply with the said Rule and thereby trial court has not exercised jurisdiction vested in it.

  • DUTY TO NOT ACCEPT ANY CASE WHERE HE CAN BE CALLED AS A WITNESS–  Rule 13 of the Bar Council of India Rules, says that when an advocate gets a brief of a case where he knows that he can be a witness he should not accept that case or when after taking up a case he realizes that he is an important witness of that case then he shall not continue as an advocate in that case. In such a situation an advocate can retire from a case without endangering or risking the interests of his client.   

Section 151 of the Code of Civil Procedure, 1908, gives inherent power to the civil court to accept a bonafide application made by an advocate to withdraw from a case when he has become a material witness in that case.

CASE-LAW:

Chhatrapati Shivaji v/s State of Bihar, 1990– This was a partition suit. The advocate was representing the defendant and the defendant had submitted an affidavit in the court which contained identification by his advocate. Here, the Court stated that as the defendant’s advocate has become the witness to prove the genuineness of the important affidavit hence, he is debarred from appearing in the case as he can be called as a witness in the case.

  • DUTY TO DISCLOSE ANY CONNECTION WITH THE PARTIES OR HIS VESTED INTEREST IN THE CASE TO THE CLIENT- Rule 14 of the BCI Rules provides that an Advocate shall before accepting any case make full and frank disclosure to his client regarding any personal vested interest in the case or his connection with any of the parties to the case. This disclosure should be made so that the client can decide whether he should engage the advocate or continue the engagement of the advocate in the case.

CASE-LAW:

V.C. Rangaduri v/s Gopalan, 1979- In this case, an advocate was engaged by his client to file a suit on two promissory notes for recovery with interest due against the debtor. The engaged advocate already knew the debtor from the last 7-8 years and was also appearing for that debtor in her succession certificate proceedings. The advocate, however, did not inform his client who engaged him against the debtor about his prior connection with the debtor. The advocate was held guilty of gross professional misconduct by the disciplinary committee of the State Bar Council for violating Rule 14 of BCI Rules and was suspended from practicing for 6 years. In the appeal, the Bar Council Of India upheld the State Bar Council’s findings and held that the advocate has violated Rule 14 as he should have made full and frank disclosure to his client about his connection with the other party who was the debtor. The advocate could continue only when his client had allowed him to continue with the case.

  • DUTY TO UPHOLD THE INTEREST OF HIS CLIENT IRRESPECTIVE OF HIS OPINION–  Rule 15 of the BCI Rules, provides that an advocate must use all fair means to uphold the interests of his client without fearing any bad or unpleasant consequences to himself or any other person. While taking up a criminal case the advocate shall defend his client accused of a crime irrespective of his personal opinion about the guilt or innocence of his client. The advocate must always remember that his loyalty is towards the law and law states that no innocent person shall be convicted without any material evidence against him.
  • DUTY TO PROSECUTE IN A WAY TO NOT CONVICT AN INNOCENTRule 16 of the BCI Rules, provides that in a criminal case the prosecutor must prosecute in a way that does not convict an innocent person. If a prosecutor knows about some important fact that can prove the innocence of the accused he should not suppress that fact.
  • DUTY TO NOT DISCLOSE ANY CONFIDENTIAL INFORMATION OF HIS CLIENTRule 17 of the BCI Rules states that Section 126 of the Indian Evidence Act, 1872, imposes an obligation on the advocate from not disclosing any privileged or confidential information about his client. This obligation on the advocate continues even after his employment has ceased or ended.

The advocate must not disclose any information given to him by his client to engage him as his advocate. The advocate must not disclose the content of any document with which he has been acquainted during his engagement. He must also not disclose any advice given him to his client.

However, an advocate is not obligated not to disclose any information about any communication between him and his client during his engagement regarding committing any illegal act or achieving any illegal purpose. An advocate can disclose any information regarding the commission of any crime or fraud about which he came to know through or on behalf of his client during his employment. An advocate can disclose any information or communication if he gets consent from his client for disclosure.

  • DUTY TO NOT FORMENT ANY LITIGATION-  Rule 18 of theBCI Rules, provides that an advocate must always refrain from fermenting any litigation at any time. This means that an advocate in case of any fight or quarrel should not encourage a party to file a legal case against the other person in the fight.

Justice Raj Kishore Prasad at a Rotary Club Meeting in Patna stated that the first duty of an advocate in case of family disputes and differences is that he must try to settle such disputes amicably and thereby prove the notion wrong that lawyers foment litigation for their gains.

  • DUTY TO ACT ONLY ACCORDING TO HIS CLIENTRule 19 of the BCI Rules, states that an advocate must act only as per the instructions of his client and no one else.

CASE-LAW:

Gian Chand v/s Bar Council of India, 1997– In the instant case, an advocate had withdrawn a suit filed by the client for declaring that she was not the legal wife of the defendant. The advocate then without instruction from his client filed an application for maintenance by taking his client’s signature on a blank paper on a false premise. The court held that the advocate was guilty of professional misconduct as he acted without the instructions of his client.

  • DUTY TO NOT TO FIX FEES AS PER THE RESULT OF THE LITIGATIONRule 20 of the BCI Rules, states that an advocate while taking up a case or during the litigation can neither fix his fees contingent on the result of the case nor can he agree to take a share in the proceeds of the litigation.

CASE-LAW;

P.Venkatadari Shastri v/s Sardar Kesar Singh, 1975– In this case, an advocate made a fees agreement with his client who was terminated from his job. The fees for the case were contingent on one thing that if the advocate was able to recover his client’s past salary and allowance then he will get a fee of Rs. 5000. When the client refused to pay Rs. 5000 the advocate filed this suit to recover this sum as his legal fees agreed by them.  The court held that the fees were fixed by the advocate contingent upon the success of the suit filed by the client which is absolutely against the aforesaid Rule 20 and such a fee agreement is against the public policy and is therefore unenforceable.

  • DUTY TO NEITHER BID IN COURT AUCTION NOR PURCHASE SUBJECT MATTER OF THE SUIT- Rules 22 and 22-A of the BCI Rules, provides that an advocate cannot in his name or any other person’s name directly or indirectly bid for in court auction or purchase or acquire any property that is the subject matter of the suit in which he was engaged as an advocate unless the client authorizes the advocate in writing to do so. An advocate is allowed to bid for or purchase any property for his client when the client himself is legally authorized to do so.
  • DUTY TO NOT TO ADJUST FEES FOR ANY DEBT OWED BY THE ADVOCATE TO THE CLIENTRule 23 of the BCI Rules, provides that an advocate must not fix or adjust his fees for any personal liability or debt taken by the advocate earlier from the client and specially when such liability does not arise from his current engagement as an advocate by the client.
  • DUTY TO NOT TO TAKE UNDUE ADVANTAGE OF THE TRUST OF THE CLIENTRule 24  of the BCI Rules, provides that an advocate shall not abuse the trust or take undue advantage of the confidence reposed on him by his client.
  • DUTY TO KEEP ACCOUNT OF FINANCES RECEIVED FROM THE CLIENTRule 25 of the BCI Rules provides that the advocate should maintain accounts of the money given to him by his client. The accounts should show the amount of money received from the client or on the client’s behalf by someone else. It should contain the expenses incurred by the advocate for the client. Further, the accounts should also contain the debits in the way of fees of the advocate along with respective dates.

As per BCI Rule 26 when an amount of money is received from the client to the advocate then the entry of such a sum of money should also mention that the amount is for fees of the advocate or other expenses of the case. During the case, the advocate cannot without written permission from his client convert expenses of the case into his fees.

As per BCI Rule 27, the advocate should inform his client about any money received from the client or on behalf of the client as soon as possible of the receipt.

As per the BCI Rule 28, the advocate on the termination of the case can use any sum remaining not spent from the amount given for expenses or any amount he had received from the client towards the settled fee that is due to him.

As per BCI Rule 29 on the termination of the case when the fee is unsettled the advocate can deduct his fees payable to him from the client’s money remaining with the advocate. If any balance amount is left with the advocate then he shall refund the balance amount to his client.

As per BCI Rule 30 if the client asks the advocate to furnish him a copy of the client’s account then the advocate must provide the client with the demanded copy if the client agrees to pay the copying fees.

As per BCI Rule 31, the advocate is barred from entering into any arrangement through which the client’s funds kept with the advocate are converted into loans.

As per BCI Rule 32, an advocate is debarred from lending money to a client for taking any legal action in any case in which the same advocate is engaged by the client. However, an advocate can make payment to the court on account of the client for the progress of the suit if he feels compelled because of the rule of the court to make such payment.

As per the BCI Rule 33 an advocate who has advised for filing a suit, appeal, has drawn pleadings, or acted for a party is not allowed to appear or plead for the opposite party.

CASE-LAW:

Chandrashekhar Somi v/s Bar Council of Rajasthan- In this case, an advocate appeared for the complainant in a criminal matter. Later on, the same advocate accepted the brief from the accused in the same matter. The Disciplinary Committee of the State Bar Council of Rajasthan suspended the advocate. An appeal was filed in the Bar Council of India by the advocate which was rejected by upholding the order of the State Bar council of suspension of the advocate for 3 years.  Then the advocate appealed to the Supreme Court of India. The apex court also held the advocate guilty of professional misconduct and held that the advocate has violated the aforesaid Rule 33 by earlier appearing for the complainant and later on accepting the brief by the accused in the same matter. The advocate should have disclosed all the facts and taken the consent of all the involved parties. The Supreme Court however reduced the suspension from 3 years to 1 year as the concerned advocate was a junior member of the Bar and had resorted to such malpractice because of the struggle for existence.

CONCLUSION:

From the above discussion, we can say that the relationship of an advocate with his client is of trust, honesty, and faith. The advocate must not betray his client and should maintain the dignity of the Bar while seeking justice for his client through the court of law. The advocate must understand his responsibility to seek justice and must not lower down the integrity and dignity of his profession.

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