From Instructing (An Advocate) To Return All The Briefs To Conflict Of Interest: Where Are We Headed?
Apoorva Chandra and Sweta Bhattarcharya
22 Sep 2023 5:37 AM GMT
Legal profession is largely considered to be one of the oldest professions in the world. An advocate, in addition to being a professional, is also an officer of the court and plays a vital role in the administration of justice and in order to do so, an advocate has to take up cases, without any compulsion, restriction and / or favour and represent his or her clients to the best of his or her ability.
A while back, a regulator in India asked one of its empanelled law firms (“Firm”) to return all of the briefs it had received from the regulator, with the exception of those that were in advance stages, and the reason being that the Firm had defended a client in a dispute against the regulator.
One of the guiding principles for the regulator in question (as stated in the annexure to the response dated 10 April 2017) for appointing advocates and law firms is that “there should be a bar to all those Advocates/ Solicitors Firms who are empanelled that they shall not take any brief against the regulator before any judicial forum, Senior Counsels may be exempted from the same.” This particular raises the age old question of “Conflict of Interest”.
The above case re-ignites the issue of conflict of interest and professional standards of an advocate, which has been examined below.
Conflict of Interest and Professional Standards:
According to the Bar Council of India Rules (“BCI Rules”), the professional conduct arises out of the duty that the advocates owe to the court, their clients, their opponents, and other advocates. The professional conduct aims to protect a client’s interests by ensuring that they receive justice without any discrimination, and it is thus the advocate’s duty to follow and promote the principles of professional conduct with utmost dignity.
The issue of conflict of interest for any advocate can arise in situations like when an advocate represents both the parties in the same matter and / or in connected or related matters or where the advocate has already been briefed by one of the parties (and does not take up the matter for that party) and thereafter agrees to represent the opposing party in the same matter and / or connected / related matters.
Further, the Bar Council of India (“BCI”) deals with the concept of ‘conflict of interest’, under Chapter II (“Standards of Professional Conduct and Etiquette”), Part VI (“Standards of Professional Conduct and Etiquette”) of the BCI Rules, as follows:
- An advocate who has previously advised a party in connection with a particular suit, appeal, or other case, or who has drawn pleadings, or who has appeared for a party, should not act, attend, or plead for the opposing party in the same matter.
- It is the advocate’s duty to make full and open disclosure to the client about his or her connections with the parties involved and any interests that may influence his or her client's decision to hire him or her for that particular matter.
- It is the advocate’s responsibility not to accept a brief or represent a client in a case where he himself is a witness, or where he has cause to suspect that due to the sequence of events, he will be called upon to act as a witness.
- An advocate shall not act on the instructions of any person other than his client or his authorised agent.
- It shall be the duty of an advocate to fearlessly uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other person/ entity.
- An advocate shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client.
From the above it is absolutely clear, that BCI intended to bar an advocate from appearing for two opposing / disputing parties as the concerned advocate in such a situation would not be able to justify his duties that he may owe to his clients.
The issue of conflict of interest can also be explored vide the following cases:
- In Mary Lilian Hira Devi v. Digbijai Singh, Privy Council held that “on the impropriety of a legal practitioner who has acted for one party in a dispute … acting for the other party in subsequent litigation between them relating to or arising out of that dispute. Such conduct is, to say the least of it, open to misconception and is likely to raise suspicion in the mind of the original client and to embitter the subsequent litigation. … This is a matter which concerns the honour of the profession.”
- In Advocate Cuddalore; Collector of South Arcot v. An Advocate, the Hon’ble High Court of Madras held that “it is improper for an advocate …. to accept an engagement for the defence in a case in which at an earlier stage he advised or gave an opinion to the prosecution or appeared on behalf of the prosecution …”.
- In Public Prosecutor, Andhra Pradesh v. Kothakapu Etreddy Venkata Reddi and Ors., the Hon’ble High Court of Andhra Pradesh held that in order “to maintain the highest traditions of the Bar and the profession, preclude advocates from appearing for the opposite party if that is likely to embarrass the advocate or raise a suspicion in the mind of the client with respect to the conduct of his erstwhile advocate or that it is not gentlemanly conduct or that it is improper to do so, or the circumstances are such from which an Inference of imparting confidential nature of information can be raised.”
- In Chandra Shekhar Soni v. Bar Council of Rajasthan and Others, the Hon’ble Supreme Court of India clearly held that “It is not in accordance with professional etiquette for an advocate while retained by one party to accept the brief of the other. It is unprofessional to represent conflicting interests except by express consent given by all concerned after a full disclosure of the facts.... Counsel's paramount duty is to the client and where he finds that there is conflict of interests, he should refrain from doing anything which would harm any interest of his client. A lawyer when entrusted with a brief is expected to follow the norms of professional ethics and try to protect the interests of his client in relation to whom he occupies a position of trust.”
From the aforesaid cases and the relevant provisions of the BCI Rules, it is clear that the principle of conflict of interest (though being unethical and unprofessional) arises when an advocate appears on behalf of two opposing parties in a same and / or related matter and hence it is absolutely clear that the case of conflict of interest does not arise when an advocate appears on behalf of one party in one matter and against the same party in an unrelated matter.
Such conflict of interest may infringe the concerned party’s rights. It is crucial for an advocate to avoid such situations because it interferes with his or her independence / judgement and also calls into doubt such advocate’s integrity and professional conduct.
The concept of conflict of interest and professional conduct are intertwined because if the BCI standards are scrupulously followed by the advocate, he or she can prevent circumstances where conflict of interest may emerge and / or their integrity may be questioned. Also, these standards were laid down considering that an advocate, “being an officer of the court”, has a duty towards the court and his or her client in the administration of justice.
In the event if the advocates fail in conducting themselves in the manner as laid down by BCI, it would tantamount to failure in delivering justice and the very fabric on which our society is built will crumble and the law will actually mean nothing except being a legislation on a piece of paper.
The “guiding principle” of the regulator in question may raise the issue of conflict of interest depending on whether the empanelled advocate / law firm has accepted the briefs against the regulator in the same or a connected matter, however if the said empanelled advocate / law firm accepts a brief in an unrelated matter against the regulator, it should not tantamount to conflict of interest as the judicial precedents, as discussed above, are case specific and cannot be applied universally. Nonetheless, we are of the opinion that a client is well within his rights to choose an advocate and the manner in which he chooses too.
Authors: Mr. Apoorva Chandra (Partner) And Ms. Sweta Bhattarcharya (Associate) at Sarthak Advocates & Solicitors. Views are Personal.