The High Court of Jammu and Kashmir and Ladakh pulled up a counsel for demanding a portion of compensation awarded to his client in a case as professional fees. This is against laid down rules
In a recent case, the High Court of Jammu and Kashmir and Ladakh pulled up a counsel of a litigant for demanding a portion of compensation awarded to her in a case as professional fees. The Court said that the counsel cannot claim any share out of the fruits of litigation from his client as fee and if at all such a thing has happened, it is a case of professional misconduct on the part of the counsel.
A single bench of Justice Sanjay Dhar disposed of a petition seeking a direction to the Motor Accidents Claims Tribunal, Kathua, to release an amount of Rs 13,50,000 in petitioner’s favour which had been deposited with it after the award passed by the Lok Adalat in September 2023. It was stated in the petition that the counsel was demanding a certain percentage of the compensation as professional fee and on account of this a dispute had arisen between the petitioner and her counsel. Due to this dispute, the Tribunal was not releasing the deposited amount in favour of the petitioner despite having been approached by her.
The Court said: “Such like conduct is not expected of a person belonging to legal profession. If on account of a dispute between the claimant and her counsel regarding professional fee, the Tribunal is not releasing the amount deposited pursuant to the award of the Lok Adalat in favour of the rightful claimants, the same is highly objectionable. A court or a Tribunal is not expected to become a party to the dispute about counsel fee between a litigant and his lawyer.” It directed the Motor Accidents Claims Tribunal, Kathua, to release the amount deposited with it pursuant to the Lok Adalat award in accordance with the law.
In 2017, a Supreme Court bench of Justices AK Goel and UU Lalit called on the government to bring about legislative changes to check violation of professional ethics by advocates and to ensure access to justice to all. The Court rejected a plea by an advocate who claimed that a signed cheque given by his client was dishonoured.
The Court noted that undoubtedly, the legal profession is the major component of the justice delivery system and has a significant role to play in upholding the rule of law. The significance of the profession is on account of its role in providing access to justice and assisting citizens in securing their fundamental and other rights.
The Court observed that recurring strikes by the Bar had contributed to the piling up of arrears jeopardising the consumers of justice and had led to weakening the system. While considering the mounting cost of litigation, it was observed by the Court that fees charged by some senior advocates were astronomical. The corporate sector was willing to retain talent at a high cost. It develops into a culture and permeates down below.
The role of the legal profession in strengthening the administration of justice must be in consonance with the mandate of Article 39A to ensure equal opportunity for access to justice. The legal profession must make its services available to the needy by developing its public sector. It was observed that like public hospitals for medical services, the public sector should have a role in providing legal services for those who cannot afford the fee. Maintenance of irreducible minimum standards of the profession is a must for ensuring accountability of the legal profession.
Referring to lawyers’ fees as a barrier to access to justice, the apex court observed that it was the duty of the Parliament to prescribe a fee for services rendered by members of the legal profession. The Court said that members of the legal profession could have a decisive say in law making, being the largest group in legislative bodies. They could contribute to reducing litigation instead of perpetuating disputes by counselling the parties and could help reduce the delay in proceedings. Alternative modes of resolution of disputes should be explored and one may be pre-trial conciliation proceedings. Reducing the number of witnesses to be examined by deleting irrelevant witnesses, reducing the length of cross-examination by avoiding unnecessary questions and avoiding adjournments could help the administration of justice.
The Court referred to the Law Commission’s 131st report, noting that no effective law appears to have been enacted to regularise fees or for providing public sector services to needy litigants without any fee or at a standardised fee. A mechanism to deal with violation of professional ethics also does not appear to have been strengthened. The success of the administration of justice to a great extent depends on successful regulation of the legal profession in the light of mandate under Article 39A for access to justice. “Deficiency in the working of the present regulatory mechanism has been acknowledged by the Court in several decisions. Mandate for the Bench and the bar is to provide speedy and inexpensive justice to the victim of justice and to protect their rights. The legal system must continue to serve the victims of injustice,” it said.
The Bombay High Court in KL Gauba held that fees are conditional on the success of a case and a lawyer’s interest in the subject matter tends to undermine the status of the profession. The same has always been condemned as unworthy of the legal profession. If an advocate has interest in the success of litigation, he may tend to depart from ethics.
In the matter of Mr. “G.” (a senior advocate of the Supreme Court), the Court held that the claim of an advocate based on a share in the subject matter is a professional misconduct. In VC Rangadurai vs D. Gopalan, the Court observed that the relation between a lawyer and his client was highly fiduciary in nature. The advocate is in the position of trust.
In 2022, the Allahabad High Court had ordered the Bar Council of Uttar Pradesh to hold an inquiry against an advocate, saying that his conduct in mentioning his name on advertising leaflets for sale, purchase and letting off properties and for resolution of disputes regarding properties appears to be a gross professional misconduct.
Rule 20 of Part VI, Chapter II, Section II of the Standard of Professional Conduct and Etiquette reads: “An advocate shall not stipulate for a fee contingent on the results of litigation or agree to share the proceeds thereof.” But how many are following this in letter and spirit?
—By Shivam Sharma and India Legal Bureau