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What Is The Law On 'Proxy' Counsel?

Akshita Saxena
8 Nov 2019 2:13 AM GMT
What Is The Law On Proxy Counsel?
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Proxy counsels, appearing on behalf of the filing counsel, often find themselves in an identity crisis, as the words "proxy counsel" find no mention in the Advocates Act, 1961. The Advocates Act or any of the Court Rules do not expressly authorize an advocate to represent a party without a duly executed vakaltnama.

In 2014, a three-judge bench of the Supreme Court had in clear terms observed that neither a party nor any advocate was entitled to appoint a proxy counsel and waste the time of the court. In a simple cheque bounce case titled Sanjay Kumar v. State of Bihar & Anr., SLP (Crl.) No. 9967/2011, where the Advocate-on-record who had filed the Vakalatnama failed to formally nominate a counsel to appear on his behalf and sent a proxy counsel instead, the court said,

"...any "Arzi", "Farzi", half- baked lawyer under the label of "proxy counsel", a phrase not traceable under the Advocates Act, 1961 or under the Supreme Court Rules, 1966 etc., cannot be allowed to abuse and misuse the process of the court."

Reaffirming this view in Surendra Mohan Arora v. HDFC Bank Ltd. & Ors., CA No. 4891/2014, the Apex Court reiterated that proxy counsels did not have the authority to appear before the courts and hence the National Commission was right in specifically mentioning in its Cause List that no proxy counsel would be allowed to make submissions before it.

Evaluating this issue from a different angle however, the Delhi High Court recognized the importance of encouraging junior counsels to appear before the court in a recent Judgment as follows;

"In the practice of law, courts have a duty to encourage junior counsels who may not have filed vakalatnamas and ought to hear them if they are ready to assist the court. They cannot be simply treated as proxy counsels, as such a treatment, is not only discouraging to such junior advocates but also creates delays in the dispensation of justice. When junior counsels appearing before the court are prepared and are ready to assist, they ought to be heard and effective orders can be passed. Filing counsel or the counsel in whose favour the client has given the vakalatnama ought to encourage junior advocates and counsels to make submissions and argue matters."

Citing a word of caution however she said that filing counsels should personally appear for certain important orders such as withdrawal of suit, etc.

"There are some orders such as withdrawal of a suit, recordal of settlement in a suit, etc., which essentially require the filing counsel to be present. Except in such situations, court proceedings can continue with the appearance of junior counsels so long as they have the necessary express/implied permission to make submissions from their seniors."

Further stating that the term "Proxy Counsel" ought to be used only when the counsels, who appear, are not able to assist the Court in the matter or are merely seeking an adjournment, the court said,

"When junior counsels working in the chambers of filing counsels appear and assist the court, instead of describing them as "proxy counsels" alternative terminology such as "_____, Advocate appearing for Ld. Counsel for the Plaintiff/Defendant" can be adopted. Only in case a junior or other counsel who is completely unrelated and/or unprepared in the case, the terminology of "proxy counsel" can to be used. This would also enable junior counsels to ensure that they are not merely taking passovers and adjournments but also get prepared in the matters and are ready to make submissions."

Whilst the above ruling has no effect on the law pronounced by the Apex Court, it does indicate that the courts may, in the best interest of junior counsels, allow them to appear and argue.

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