Law Commission has recently asked for opinions from stakeholders on reforms required in the Advocates Act, 1961, the last date of which is 31st Aug 2016. So interested people can read the analysis and suggestions below, and send whatever suggestions they agree with to [email protected]
Hon’ble the Supreme Court of India , in criminal appeal No.63 of 2006, Mahipal Singh Rana v. State of U.P., has asked the Law Commission of India “to go into all relevant aspects relating to regulation of legal profession in consultation with all concerned” at an early date. In view of this, the Law Commission of India has undertaken the study of the Advocates Act, 1961. The Law Commission of India requests all the stakeholders to send their comments at [email protected], not later than 31 August 2016.
The Mahipal Singh judgment referred above can be seen here: http://www.livelaw.in/urgent-need-review-regulatory-mechanism-legal-profession-sc/
Here are some points about need for much higher standards of professionalism needed among advocates as a group, and also towards clients and litigants who are made to suffer for no fault of theirs due to lack of enforcement of professional standards on advocates.
Bar councils fail to enforce violation of standards by advocates
As pointed out by Supreme Court in Mahipal Singh Rana v. State of U.P judgment, the SC has observed that both bar council of UP and bar council of India failed to take any action against the said advocate. Excerpt below:
We may now come to the direction to be issued to the Bar Council of Uttar Pradesh or to the Bar Council of India. In the present case, inspite of direction of the High Court as long back as more than ten years, no action is shown to have been taken by the Bar Council. Notice was issued by this Court to the Bar Council of India on 27th January, 2006 and after all the facts having been brought to the notice of the Bar Council of India, the said Bar Council has also failed to take any action. In view of such failure of the statutory obligation of the Bar Council of the State of Uttar Pradesh as well as the Bar Council of India, this Court has to exercise appellate jurisdiction under the Advocates Act in view of proved misconduct calling for disciplinary action
While I do not have a specific suggestion on how this can be fixed, it seems regulation of advocates by bar councils is almost not working, so there needs to be overhaul of Advocates Act so that public can have some faith restored that bar councils or a new regulatory body can do the job of punishing violations of standards of conduct by advocates.
Common public unaware of standards of conduct, and duties of advocate towards client
The Advocates Act, 1961 defines the process and rules by which Bar council of India and State level bar councils can be constituted, and how they can frame their rules to regulate and give licenses to advocates to practise, and to inform about and enforce standards of professional conduct. But these kind of details about existence of Advocates Act and how bar councils make rules to govern advocates are almost not known to public. Common public is almost unaware of how and where to complain if they have any problem of unprofessional conduct by their advocate. A few suggestions can be made:
Suggestion 1: Give copy of bar council rules about duty of advocate towards client
A copy of state bar council rules which govern professional duties of advocates towards client to be given to client by advocate when a vakalatnama is signed. It should list all duties of advocate towards client. At the beginning of any case whether civil or criminal, the judge should ask the litigants(s) to make sure that they have received that copy and only then the case should proceed. This is a simple and practical suggestion which is not difficult or costly to implement.
Suggestion 2 (alternative to 1 above): Amend Advocates Act to include rules on duty of advocate towards client
An alternative suggestion is that to simplify the understanding for common public about what duties advocate has towards clients, the most important rules of professional conduct towards clients can be made part of the Advocates Act itself, rather than leaving it to the bar councils to define it as part of bar council rules. This makes lot of sense since the rules of professional conduct and duty towards clients are things which cannot change form state to state, so there is no great hindrance why they cannot be made part of the Advocates Act itself.
Violent/unbecoming/unlawful behaviour by advocates not punished
It is commonly seen that Indian advocates in all states and cities indulge from time to time in collective disruption, strike, violence be it in cities of Bangalore, Ghaziabad, Meerut or Chennai. Usually every 3-6 months or so there is one such news. Just a quick Google search returned sample of news items below all of them being from last few years:
At the same time, citizens are supposed to uphold judiciary (and lawyers) in high esteem because some manuals and codes have been written giving sermons on duties of advocates, expected ethics, high standards of behaviour and what not.
Apart from above, there has been recent news of disruption and violence by some advocates in Chennai.
Law applies to all except advocates!: The public is made to believe that they should not take law into their own hands. But it seems, a totally different standard is used when it’s lawyers who have any grouse or grievance. Not only they take law into their hands and indulge in group violence, there is hardly any news ever that such advocates have received any kind of punishment or debarring from legal practice for even a small period of time.
It is a matter of grave concern that advocates themselves act in ways which shows that they do not have much confidence in legal and judicial processes. When that is the case, it’s a matter of huge hypocrisy to tell common citizens that they should abide by the law. Indeed, the impression one gets is that if one knows the law well, one can indulge in violent and unlawful behaviour, and no one can touch them!
Suggestion 3: The Advocates Act needs to be amended to make it simpler to punish violations of law by advocates.
If the legal profession needs to keep its image of upholder of justice, then violation of laws by advocates should not be tolerated, because that gives the clear message to public that you can indulge in violence and break laws if you know more about law than others. Also, the failure of bar councils to act against erring advocates gives the message that the bar councils are acting in ways to protect advocates who are members of the club, than protecting and enforcing standards of membership of the club.
Suggestion 4: Need simple and effective mechanism of complaint and grievance redressal of clients against advocates
Following are commonly seen unprofessional behaviour of advocates towards clients:
- Taking advantage of client who has approached advocate through a known reference who is a relative, friend, common acquaintance, common neighbour; and taking advance fees ranging in tens of thousands in promise of doing some work; but then keeping quiet or not doing any or little work for the client. The client who has approached the advocate through a common acquaintance loses both money as well as trust in legal process at the very first step itself.
- Not appearing in the court on hearing date. Also, not caring to inform client about it either.
- Having client pay the cost to court for non-appearance of advocate or delays due to advocate. Many a time the advocates do not appear on the hearing date, and the court imposes a cost on the litigant whose advocate has failed to appear. This is a cruel joke on litigants that they end up paying cost which should have been paid by advocate instead. Again, the lack of awareness of rules of duty towards clients by advocates, combined with the fact that bar councils seem to protect their own; means that there is almost nil chance any client will complain about advocate to bar council or try to recover the paid cost from advocate’s fees.
- Taking large amount of advance fees from client which may be justifiably earned only over several years of legal representation. Many clients tend to plan for expenses in advance, and they think that by giving advance fees, they don’t have to plan for further legal expense for next 2 years or so at least. But they are in for a rude shock when the advocate later starts acting unprofessionally as mentioned in other points. Even if the client is able to change the advocate, he/she stands to lose that advance fees given since most clients don’t have requisite knowledge of law and rules to complain against an advocate. That combined with the fact that bar councils have failed to take action in many instances against erring advocates, makes the situation grim for litigants and common public.
- A common complaint heard from litigants is that their advocate has started ‘collaborating’ with the opposite party. This is a very commonly heard complaint in public, yet there is hardly any actual complaints being filed for this kind of behaviour, most probably because the litigants don’t have any hard evidence to prove it, and also because they lack knowledge of law to collect such evidence and then further complain to bar council. It would be unwise to dismiss such opinions of general public as imaginative thinking, since it strikes at the roots of confidence public should normally have in judicial processes and legal professionals.
- Misusing provision of consent of fellow advocate to appear for client. Bar council rules say that a new advocate should take consent from previous advocate of the client. While this is meant as consent between advocates, in practise this has become source of major harassment and grief for litigants who want to change their advocate, but are made to run around by existing advocate who makes it seem that the client needs a no objection certificate (NOC) from advocate to appoint a new advocate. Nothing can be more damning than this fact that a paying client is made to beg for NOC from his/her own advocate, when the normal process in other professions is that client is free to choose and change his professional without any kind of objection or hindrance from existing professional. Advocates Act should be amended to remove need of any consent from one advocate to another. Most advocates charge fees in advance from clients, so it is clients who need to be protected rather than advocates.
A simpler mechanism needs to be put in place preferably in Advocates Act itself which defines the duties of advocates towards clients and acceptable conduct, and how clients/litigants can file complaints to a regulatory body to get their matter resolved. Whether bar council itself can be that regulatory body or a new ombudsman kind of body needs to be defined can be discussed further.
Suggestion 5: Need to remove consent to change advocates
Bar council of India defines this rule: http://www.barcouncilofindia.org/about/professional-standards/rules-on-professional-standards/
5. Consent of fellow advocate to appear
An advocate should not appear in any matter where another advocate has filed a vakalt 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.
Elaborating further, the need to have consent to change advocates should be removed for following reasons:
- The said rule was made by bar council ostensibly to protect advocates from one another, rather than clients and public. A fundamental question needs to be asked: when it’s advocates who take fees from clients/litigants are supposed to provide professional service in return, why should the clients/litigants have to face any hurdle in changing the advocate if they are unable to get the required service or professional behaviour? There are no such rules in other professions like doctors and Chartered Accountants, which also have regulatory bodies with licensing and disciplinary mechanism.
- This rule is more in nature of union regulation. It serves to regulate the pool of advocates, but goes against interest of litigants and ultimately against delivery of justice.
- Further, if the justification of this rule is that it will discourage unhealthy competition among advocates to grab clients, that reasoning doesn’t stand detailed scrutiny. Every individual, including advocates, have right to practise their trade /profession; and this kind of rule flies in the face of that since it prevents a lawyer from giving service to litigant who is stuck with a bad or non-performing existing advocate. It tends to encourage behaviour by advocates where they can focus more on grabbing a client initially, and then slack off, rather than providing professional service over the course of full trial etc.
- By removing this rule, those advocates who work in a professional manner while giving conscientious and good service to litigants, will get rewarded over the long term. As of now, it is the other way round that those advocates who are smarter in ‘bagging’ the clients initially will have a more flourishing practice.