15 Jun 2023 6:06 AM GMT
A lawyer or an advocate is defined as a person who is licensed to practice law. While performing this licensed practice, legal practitioners play a vital role of advising and consulting their clients, preparing their cases, and are also responsible for presenting oral and written arguments, in addition to this, all the clerical work involved in the court process is also majorly done...
A lawyer or an advocate is defined as a person who is licensed to practice law. While performing this licensed practice, legal practitioners play a vital role of advising and consulting their clients, preparing their cases, and are also responsible for presenting oral and written arguments, in addition to this, all the clerical work involved in the court process is also majorly done by the lawyer’s office.
Moreover, it is also pertinent to note that while carrying out these duties lawyers have an obligation to uphold the ethical standards of the profession. This is particularly significant in an adversarial system where the judge assumes a passive role, this includes professing the principles of justice, which in India are being upheld by the Bar Council of India through its delegated statutory power.
Under the disciplinary powers granted to the Bar Council of India under Section 36 of The Advocates Act, 1961 [‘Act’], the disciplinary committee of the council has the authority to impose punishment on lawyers in instances of misconduct as mentioned under Section 35 of the Act. Moreover, in severe cases where a lawyer fails to meet the required professional standards, the council also holds the power to debar the lawyer from practising law. This action serves as a significant measure to ensure that lawyers uphold the ethical conduct and maintain the prescribed standards of the legal profession.
The question that arises here is, does the limitation of the conduct of a lawyer under the Advocates Act, also limit the lawyer from performing a role other than that of the lawyer?
To ensure legal coherence on the matter, it is essential to analyse the statutory provisions by the method of deduction and in light of the judicial context.
Firstly, Section 30 of the Act is a pertinent provision which mentions the rights of an advocate to practise as, “subject to provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends.”
The rule is designed to keep people’s trust in the legal system and protect the rights of clients who need a lawyer. It means that lawyers can only act as lawyers and not take other roles that might compromise their fairness and objectivity. While the rule doesn’t specifically say lawyers can’t do other jobs, but it’s explicit mention of their role as a lawyer, suggests that it is the only role intended to be included.
On the other hand, even if a court official is acting in a capacity other than that of a lawyer, he is held accountable under the Act for his actions. For instance, the respondent in the case of Noratanmal Chourariavs. M.R. Murli & Anr was a lawyer by profession but was acting as a litigant, and in the course of that he assaulted and kicked the complainant. Since, he wasn’t self-representing himself before the court of law and was therefore acting only in the capacity of a litigant, but despite this, he was still held accountable for professional misconduct.
As a result, a lawyer can’t assume any other role while representing a party, but on the contrary, he must act in the manner expected of a lawyer, even if he is acting for instance, as a litigant.
Secondly, to understand the duties and role of a lawyer, the overall purpose of the statue needs to be understood, in order to do that the mentioned section needs to be interpreted in reference with the context and the other provisions of the Act, so as to make a consistent enactment. Therefore, to get the intent behind the Act, Section 30 needs to be read in light of other provisions such as Rule 13, Chapter II, Part VI of Bar Council of India Rules under the Act, which specifically states that, an advocate should not accept a brief or appear in a case in which he has reason to believe that he will be a witness, and if he is a witness on a material question of fact, then he should retire. Thus, barring his presence as a witness, the reasoning behind this is the disruption of administration of justice caused due to conflict of interest.
The case of Rajendra V. Pai v.Alex Fernandes and Ors. clearly demonstrates this conflict of interest that results from a lawyer's dual role or interest in a lawsuit. In this instance, the appellant was representing approximately 150 villagers in a case against land acquisition, and because his family property was one of them, the lawyer worked to obtain the best possible quantum of compensation in light of his personal interest, as a result the Disciplinary Committee held the lawyer guilty of professional misconduct and this decision was thus upheld by the Hon’ble Supreme Court.
Thirdly, reading beyond the statute, the Code of Civil Procedure,1908 [‘CPC’] under order 3 allows lawyers to appear and file applications for the party, but rule 1 establishes an exception in case if there exists a law that prohibits the performance of such functions. As a result, in accordance with the law, lawyers regularly produce applications and documents in their name on the instruction of their clients, but in the specific case of affidavits, Rule 3, Order XIX of the CPC, states that, “Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove” and Rule 2, Order XIX of CPC allows for the cross-examination of the deponent, herein since the lawyer representing the parties is signing the affidavit, he as the deponent is playing the role of a witness as observed by the Hon’ble High Court of Madras in Tamizhaga Panchalai Thozhilalar Sangam v.Labour Court and thus he isn’t allowed to sign an affidavit. Therefore, we can say that, even the performance of an advocate’s role as a lawyer is bounded and any duty beyond that, however necessary for the trial of the case is waived off. This limitation is based on the idea that a counsel should operate as a lawyer for their client rather than assuming several responsibilities which can affect the objectivity of the counsel.
But can showing concern for a client’s interest be regarded as conduct unbefitting an advocate and the administration of justice?
Apparently, the answer is in the affirmative, signing an affidavit even though working at the instructions of the client has been termed as professional misconduct by the Hon’ble High Court of Allahabad in Balijeet Singh v.Pratap Singh and Ors., this has been done by relying on the Supreme Court decision of Vinoy Kumar v. State of UP and others, which distinguishes between a personal affidavit of an advocate and one made in the capacity of a witness. Moreover, the Delhi High Court in the matters of Anil Kumar and Anr. v.Amit and others also interprets the said provisions of the Advocate Act and thus limits the advocate also from filing these applications by stepping into the shoes of a power of attorney, “Any advocate who is engaged by a client would have to play one role, i.e., that of the advocate in the proceedings and cannot act as a power of an attorney holder and verify pleadings and file applications or any other documents or give evidence on behalf of his client.”
However, it is crucial to remember that the goal of these provisions is to ensure a fair and just resolution of disputes, hence in scenarios like that of N.G. Dastane v.Shrikant S. Shind wherein while acting in the interest of the party, the lawyers intentionally delayed the case by repetitive adjournments to avoid cross examining the witness, it is apt to hold the lawyer accountable for misconduct.
But in a country where the pendency of cases is a pertinent issue, in such a demographic, documents like affidavits which are to be notarised and thus can’t be digitally signed, brings in the issue of geographical constraint into the picture. Therefore, similar to a good judge enlarging his jurisdiction, a good lawyer shall be the one allowed to expand his role, and thus instead of giving a narrow construction to moral turpitude, exceptional circumstances wherein the counsel are acting in contrast to callous disregard for interest of the client and instead are looking after the interest of litigants and the legal system, should be upheld as conduct befitting an advocate as observed in the case of T.A. Kathiru Kunju v. Jacob Mathai.
Although, in such circumstances care must be taken to ensure that the lawyer signing the paperwork is acting on the brief of his client, because even if in the interest of litigants, an advocate has the right to advice and not to act without the free volition of their client. Acting against the brief of the client as in the case of Harish Chandra Tiwari v. Baiju, where the appellant acting as a lawyer made financial decisions in the interests of a financially illiterate client, will still lead to professional misconduct because a lawyer can’t undertake any action without instructions from the client.
In conclusion, once a formal agreement in the name of Vakalatnama is signed between the client and counsel, the advocate under the established professional relationship has to perform his duties in order to attain a favourable outcome. While the CPC empowers the advocate to plead in a case on behalf of the client, the Advocates Act in order to ensure a fair trial, constrains the lawyer from serving in any other role from within the courtroom.
However, it is argued that to ensure good justice there shall be a widening of the role of the counsel, and in exceptional circumstances which have a nexus with serving the interest of litigants, counsel shall be allowed to move beyond their role as just the lawyer of the party, while expanding the horizon certain checks in the form of court administration need to be brought in place to make sure, that while playing such roles the lawyer is still adhering to the conduct expected out of him.
Views are personal.