IMPLICITY

The Parameters of Fault – part II

Posted in consumerism, legal profession, public policy by Gautam on June 6, 2009

The idea of State control over the regulatory functions of a lawyer has been repulsive to the profession for the reason that lawyers representing best the interests of the client, they should be free to do so without being influenced by power or the fear of reprisal for their actions in this pursuit.

The talk here thus is as to how a lawyer is to held responsible for actions that reflect poorly on these functions; while representing his client, a minimum standard of effecieny and profeciency is expected of such lawyer. What is to be done when such standards are not met?

I talked about the case of Vishnu v. NCDRC where the legal profession was –  in the lines of the reasoning followed by the Supreme Court in IMA v. VP Shantha – brought into the ambit of the Consumer Protection Act.  This ruling, as previously discussed was set aside by the Supreme Court in August 2007 in Gandhi v. Mathias (Check the spelling and the first names, I’m in a hurry). The reasoning was on the lines of my previous post.

Therefore, if State control over legal services is undesireble, it is left to the body of lawyers to ‘self regulate’ their profession.  Two theories have been proposed to justify keeping this regulatory function away from the State. Two other theories are also prevalent, and these have been used across professions to justify self-regulation. Firstly, only lawyers were knowledgeable enough about the law to set standards for their own practice. For the same reason, by the time a layperson client realises the mistakes of her lawyer, it is quite likely to have already caused irreparable harm. However, this is also true of the medical profession – one that has been brought under the consumer law scanner. Consumer courts do not hesitate to receive evidence regarding established standards of practice in order to establish any negligence. Secondly, it was in the nature of professions to be trusted to self-regulate because they were motivated by goals that went beyond self-interest in a competitive market place. Bearing the reality of legal practice in mind, this reason lacks any weight.

What next.

In holding lawyers responsible, dissatisfaction on the lines of two areas need to be addressed – incompetence and malpractice.  In India, S.35 of the Advocates Act is aimed at ‘professional or other misconduct’, which fairly read includes within itself most areas of malpractice.  however, a reading relevant provisions show that ‘deficient services’ fall outside this definition.  Moreover, disciplinary proceedings against a lawyer do not seem to benefit the client (reasons fairly justified in the interests of the larger good), the only relief being in the nature of an order of ‘costs of proceedings’.  If a major aim of a law, apart from penalising for fault, is also deterrance, then my argument here is that this critical function is not being performed here by the code of regulations upon lawyers by the Bar Council of India.

Briefly, I’ll be summing up by drawing fair deal of attention to the solution to this problem; according to me since the justice profession is still regarded with a degree of respect higher than any other, and since I would like it remain that way, the profession should be Self Regulated.  Now the Bar Council of India being responsible for such regulation, it is necessary that its regulatory functions be separated form its representative one.  In doing this, it is expected that both the bodies thus formed with the BCI will function independantly.  The results are to a great deal self- explanatory.   In addition to this, the profession being guided by competitiveness of its lawyers, competition must not be discouraged (see a previous post titled ‘Consumerism and the Changing Scope of our Justice System’).  This will have a trickle down effect of discouraging incompetence by lawyers.  For instance, Khaitan & Co. have an internal Opinion Committee, consisting of Senior Partners of the Firm, who vet every opinion rendered to any client. Every matter is also supervised by an associate, designated as the Team Leader and responsible for checking every document/advice that goes out to a client or any other third party.

This, however abrupt (train leaves in 10 mins), briefly sums up my opinion on the issue.

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