Like all professions, the legal profession is also sprinkled with a few unethical and unprofessional lawyers. To top it off, they think that the mere fact that they are lawyers, gives them immunity from the law. This article deals with how to go about suing your lawyer and how to tackle legal malpractice.
Can a client sue their lawyer in India?
Yes. A client can sue their lawyer in India, if they believe that the lawyer is guilty of professional misconduct or is in contravention of professional ethics.
On what grounds can the client sue the lawyer?
I suspect that my lawyer has colluded with the opposite party in my legal matter, what action can I take against him?
An advocate is duty bound to the client, not to disclose the communications between himself and his client to any third party, without the express consent of the client. The advocate also has a duty to make a full and frank prior disclosure to the client, regarding the advocates interest or stake in any matter for which the client wants to engage him. An advocate should not misuse or take advantage of the confidence reposed in him by his client.
Breach of any of the above standards makes a lawyer liable for disciplinary action. A formal complaint can be made to the State Bar Council or Bar Council of India.
What laws cover legal malpractice and breach of professional ethics of lawyers in India?
Currently, The Advocates Act 1961 specifically deals with professional misconduct by legal practitioners in India and deals with the procedure and punishment.
What amounts to breach of Professional Ethics or Professional Misconduct?
Rules on the professional standards that an advocate needs to maintain are mentioned in Chapter II, Part VI of the Bar Council of India Rules. These rules have been placed there under section 49(1)(c) of the Advocates Act, 1961.
The whole list of professional standards for advocates in India can be seen at this link: http://www.barcouncilofindia.org/about/professional-standards/rules-on-professional-standards/
RULES ON AN ADVOCATE’S DUTY TOWARDS THE COURT
- Act in a dignified manner
- Respect the court
- Not communicate in private
- Refuse to act in an illegal manner towards the opposition
- Refuse to represent clients who insist on unfair means
- Appear in proper dress code
- Refuse to appear in front of relations
- Not to wear bands or gowns in public places
- Not represent establishments of which he is a member
- Not appear in matters of pecuniary interest
- Not stand as surety for client
RULES ON AN ADVOCATE’S DUTY TOWARDS THE CLIENT
- Bound to accept briefs
- Not withdraw from service
- Not appear in matters where he himself is a witness
- Full and frank disclosure to client
- Uphold interest of the client
- Not suppress material or evidence
- Not disclose the communications between client and himself
- An advocate should not be a party to stir up or instigate litigation.
- An advocate should not act on the instructions of any person other than his client or the client’s authorised agent.
- Not charge depending on success of matters
- Not receive interest in actionable claim
- Not bid or purchase property arising of legal proceeding
- Not bid or transfer property arising of legal proceeding
- Not adjust fees against personal liability
- An advocate should not misuse or takes advantage of the confidence reposed in him by his client.
- Keep proper accounts
- Divert money from accounts
- Intimate the client on amounts
- Adjust fees after termination of proceedings
- Provide copy of accounts
- An advocate shall not enter into arrangements whereby funds in his hands are converted into loans.
- Not lend money to his client
- Not appear for opposite parties
RULES ON ADVOCATE’S DUTY TO OPPONENTS
- Not to negotiate directly with opposing party
- Carry out legitimate promises made
RULES ON AN ADVOCATE’S DUTY TOWARDS FELLOW ADVOCATES
- Not advertise or solicit work
- Sign-board and Name-plate
- Not promote unauthorized practice of law
- An advocate shall not accept a fee less than the fee, which can be taxed under rules when the client is able to pay more.
- Consent of fellow advocate to appear
To whom can you complain about a breach of professional ethics or professional misconduct by a lawyer?
As per section 6 of the Advocates Act, 1961, the State Bar Council may entertain and determine cases of misconduct against
advocates on its roll.
If the advocate is NOT enrolled on the rolls of any State Bar Council then section 36 will apply i.e.:
36. Disciplinary powers of Bar Council of India
(1) Where on receipt of a complaint or otherwise the Bar Council of India has reason to believe that any advocate whose name is not entered on any State roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.
This means that you can directly complain to the State Bar Council where the advocate is practicing. Or if the advocate is not enrolled with any State Bar, you can complain directly to the BCI.
To find out if a lawyer is enrolled with a State Bar Council, you can file an application under the RTI Act for the same.
Can the State Bar Council or Bar Council of India take action against a lawyer on its own?
Yes. As per section 35 of the Advocates Act, 1961:
35. Punishment of advocates for misconduct
(1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.
This means that the State Bar can initiate suo motu action on its own, even without a formal complaint from any person, against an advocate on its rolls only.
Similarly under section 36, an advocate who is not enrolled on any State Bar can be prosecuted by the Bar Council of India (as above).
What is the procedure to complain against a lawyer?
What is the punishment for legal malpractice or professional misconduct by a lawyer in India?
(3) The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate-General an opportunity of being heard, may make any of the following orders, namely:
(a) dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed;
(b) reprimand the advocate;
(c) suspend the advocate from practice for such period as it may deem fit;
(d) remove the name of the advocate from the State roll of advocates.
This means that there can be three punishments for the advocate:
- A warning issued by the disciplinary committee
- Suspension from practice
- Permanent removal from the rolls of the State Bar Council. This does not mean
–More coming soon–