'Lawyers Function In An Environment Beyond Their Control' : SCAORA Urges Supreme Court To Not Apply Consumer Protection Act To Advocates

Today (on February 28), before the Supreme Court, in an important matter regarding the inclusion of lawyer's services under the Consumer Protection Act of 1986, submissions were advanced to convince the Bench as to why Services would not fall under the mentioned Act. The Supreme Court Advocates-on-Record Association (SCAORA), which has intervened in this matter, brought out four important aspects to argue that these services would not come under the ambit of the Consumer Protection Act. One of the aspects was that lawyers do not have control over the environment in which services are rendered. Senior Advocate Jaideep Gupta, representing the advocates' body, explained this by saying how the same can be controlled in other professions. For instance, a doctor, when treating his patient, can choose relevant factors like operating theatre. However, this is not the case with lawyers, where Judges control the environment. Gupta also clarified that this is in the interest of justice. He also said, in a lighter vein, “If I continue endlessly and your lordships stop me, that is in the interest of Justice. Can I then turn around and tell my client that I wanted to cite some other judgment but my lords did not allow me?.” Therefore, he said that the product that is coming into existence is the judgment. Lawyers render services in a particular environment that is not entirely under their control. Based on this, the Senior Counsel pleaded that it is not correct to assess the lawyers on the kind of service that they render under these circumstances. The issue, crucial for members of the Bar, emerged from a judgment delivered by the National Consumer Disputes Redressal Commission in 2007. The Commission had ruled that the services rendered by lawyers are covered under Section 2 (o) of the Consumer Protection Act. The said provision defines Service. It was held that a lawyer may not be responsible for the favorable outcome of a case as the result/outcome does not depend on only the lawyer's work. However, if there was a deficiency in rendering services promised, for which he receives consideration as a fee, then the lawyers can proceed under the Consumer Protection Act. The appeal against the NCDRC verdict is being heard by a Division bench of Justices Bela Trivedi and Pankaj Mithal. During Gupta's submissions, Justice Trivedi put a proposition that if, in a Specific Performance of Contract matter, an advocate fails to mention in the pleadings that the client is ready to perform his part and also fails to pray for the refund, whose negligence would it be? “You are hired for your legal acumen or your legal expertise. If you fail to do so as a result of which your Client suffers, could it be said that you are not in the right environment?,” she asked the Counsel. Gupta answered this by saying that to protect the litigant against one or two unlikely situations, it would not be proper to extend this 'danger' to all the remaining situations. “There may be a 100 situations. Suppose, two out of these situations appear, on first blush, to be a negligence, 98 of these are incapable of being assessed on any standard then it is not proper to expose all lawyers to that danger.”To counter this, Justice Trivedi promptly asked about cases where the lawyers were not present and if the matters were being called out. "Would it not amount to the deficiency of Service?" she asked. To answer this, the Senior Counsel submitted that the way cause lists move can be very difficult to keep track of. Non-appearance might be due to several cases in different courts being called simultaneously. These are situations beyond a lawyer's control. Further, civil action might be taken if a lawyer does it negligently. The question is whether all lawyers, in all situations, should be exposed to a summary jurisdiction under the Consumer Protection Act, he added. Regarding the standard of care, the Counsel also submitted that, unlike the medical profession, no standard has been or can be laid down for lawyers. To support this, he referred to the judgment in Indian Medical Association v VP Shantha's (1995) 6 SCC 651, which held that healthcare services are covered under the Act. In Shanta's case the standard cited was Bolam v. Friern Hospital Management Committee. “The standard of care which is required from medical practitioners as laid down by McNair J. in his direction to the jury in Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582, has been accepted by the House of Lords in a number of cases.” Pertinently, in Bolam, McNair J. had stated: “But where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have...

'Lawyers Function In An Environment Beyond Their Control' : SCAORA Urges Supreme Court To Not Apply Consumer Protection Act To Advocates

Gyanvi Khanna

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