Establishing Parametres of Fault: Part I

Posted in consumerism, legal profession, sex. and drugs by Gautam on May 31, 2009

The Common law system of adjudication evolved as the adversarial system of justice with the intention of negating the vast superiority of the State in prosecutory proceedings and placing the individual accused on an equal footing with the State; arming him with certain rights to match the enormous resources and power to prosecute him.  The nature of these rights notwithstanding, the burden of proving guilt was on the State; the burden furthermore was to do so beyond all reasonable doubt.  I am going to expose how this evolution has very determinately shaped the nature of Justice dispensation and Judicial Services today.

Lets start with addressing an issue that was posed by the Bar Council of India Rule 36  relating to advertisements that I tried to address in an earlier post (accessible here), a case relating to which was pending before the Supreme Court of India where this Rule was challenged as insufficient as a wide ranged veriety of services offered by lawyers today demanded that they be permitted to advertise their services and specialisation with fewer restrictions.  Contact details on websites, it was argued, were not enough to make the consumer well aware of the quality of services being offered to him; newer entrants into the field furtheremore, needed to have means to compete with existing lawyers who dominated the profession. Justice B.N.Agarwal ruled here saying “it would be better if the BCI allowed lawyers to furnish information about their experience and areas of specialisation“.

The intention of this earlier post was to bring to the fore certain conflicts that were arising from the changing/broadening nature of the legal services being offered, and the peculiar nature of the justice ‘business’.  Today I will argue more fervently on the issue, talking not about a lawyer’s prerogative to advertise but on another dimension of legal services vis-a-vis consumerism that is hereforth less talked about.  In doing so I will take my stand on how the ‘justice business’ is indeed remarkably unique and vastly superior to any other known instrument of preserving law and order in the society.

The adversarial system, of other things, has  very artistically measured the role that is played by lawyers and judges today; as also of the accused and the State in criminal proceedings and the parties to a civil litigation.  The judge, brifely put is not wholely and solely responsible for justice to be done; unlike the inquisitorial system, his role summarily described is to decided upon a matter as presented to him.  The lawyers are officers of the Court, responsible as they are not only to uphold and preserve the interests of their clients in the best possible way, fearlessly against the government, but also to act as responsible officers of the Court and be accountable in its foremost duty of justice delivery.  Their role is far more challenging in so far as they are to represent their clients in the best way possible, propagating standards of professionalism and expertise that would be required to make sure that the interests of his client are best met; at the same the ethical side that would ensure that he does this without forsaking his duty as an officer of the Court.  To substantiate the nature of the role played by a lawyer, Lord Ried said from the House of Lords in Rondel v. Worsley in 1969 “as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests.”

The quality of his services to his client are undoubtedly important; the consumer must not suffer due to the unprofessionalism of the barrister and the same must not lead to the negation of justice.  I’m reminded of a statement by Tom Hanks in the Philadelphia; on being asked what he likes most about the law, he say “everything… but what I like most is every now and then, you get to be a part of justice being done…” this inevitable angle on the consumer not being made to suffer due to the inefficiency of the lawyer is the crux of the arguments put forward by proponents of bringing the legal profession within the ambit of Consumer Protection Laws.  If the quality of services and choice be a major aspect of consumerism- which was the subject of my previous post- , then the next post will put forward my views on the aspect of redressal to the client for wrongful services rendered by lawyers.  For now, I would like the basic idea of the peculiarities of this profession to sink in with a small insight into the subject.

In 1980, Lord Diplock founded the immunity granted to lawyers from on a twofold reasoning based on 1) general immunity for actions in court, and 2) an accusation of supposed inefficiency and malpractice on the part of the lawyer involving the issue of retrial on the previous suit by him.  However, subsequent to this decision, the idea that ‘technical services demanded a general duty of care from professionals and a violation of this duty should give rise to action against him’ formed the basis of tort action against solicitors in the UK.  (This reasoning has been followed by the Indian Supreme Court in 1995 in the Case of IMA v. V.P.Shantha). In the United States, the American Bar Association has in place model rules to address lawyer-client relationships, duties of the advocate in adversarial proceedings. etc… the concept of Legal Malpractice Tort Litigation to impute liability to a lawyer who makes errors that no reasonably competent lawyer would.

In India we proceed far more cautiously; I argue that we are acting with prudence. Even though in 2000, J.Reddy in Vishnu v. NCRDC said that a lawyer’s duty to the court “does not obliterate his basic role of services to clients for monitory remuneration“, the Supreme Court has in August 2007 made it clear by keeping lawyers outside the ambit of Consumer Protection Laws. Such matter is still under consideration by the Court.  An additional perspective is that it is this very peculiarity of the profession that should guide stringent procedures ensuring accountability from lawyers for both, the services offered to their clients and their duties to the Court.  The procedural safeguards in place for this are in the form of those under the Chapter V of the Advocates Act and the disciplinary proceedings under Chapter VII.  I shall keep the nuances for the subsequent post; for now, this excerpt will suffice

There is a complaints procedure under the Advocates Act and the Bar Council of India Rules, a system which according to Trideep, “is oppressive and calculated to tire out the complainant.” He has a point. The Secretary of the State Bar Council needs to find a complaint to be ‘in order’ before it is registered and placed before the Bar Council. The complaint can therefore be thrown out without as much as a notice to the lawyer against whom it has been raised and “such a procedure certainly does not inspire confidence.” Chakrapani Misra, a partner at Khaitan & Co. and Surbhi Rungta, an associate at the same firm, are more optimistic. They feel that the disciplinary rules “ are a fair mix of checks and balances to maintain a healthy system whereby a lawyer provides the client with the best possible service” while ensuring that the client is not empowered to unnecessarily harass the lawyer. There are instances where a lawyer has been permanently debarred from practicing law and costs have been imposed on him for fraudulently selling off the client’s property and misappropriating the sale proceeds for personal gains or where action has been taken against lawyers for harassing a witness and indulging in subterfuge.” An Indian Express report recently quoted the chairman of the Bar Council of India who said that there around 500 appeals pending from all over India ”.


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