In this article Suyash Sahai of Faculty of Law, University of Allahabad discusses whether a lawyer can hold on to my court documents or papers demanding to be paid more.
“Lawyers throughout the world are specialized professionals who place the interests of their clients above their own, and strive to obtain respect for the Rule of Law. They have to combine a continuous update on legal developments with service to their clients, respect for the courts, and the legitimate aspiration to maintain a reasonable standard of living.”
-International Bar Association’s International Principles on Conduct for the Legal Profession
Lawyer’s profession has been regarded as an honourable or noble profession by the world for several centuries. An advocate is be regarded as the most privilege, trustworthy and erudite person of the society and by complying himself with the professional ethics and conduct, an advocate/lawyer is supposed to heal the problems of his clients with best of his knowledge and experience.
Legal Profession has a huge responsibility within society as upholders of the rule of law, and protectors of individual rights against abuses of power thus a lawyers is supposed to take care of the principles of justice, fairness, equity. lawyer-client relationship is considered to be a fiduciary relationship and thus the ethical obligation owed by a lawyer to his clients also includes client care, conflict of interest, confidentiality, dealing with client money, and fees.
Who is a lawyer?
A lawyer is a person who practices law, as a paralegal, advocate, barrister, attorney, counselor, solicitor, or chartered legal executive.] Working as a lawyer involves the practical application of abstract legal theories and knowledge to solve specific individualized problems, or to advance the interests of those who hire lawyers to perform legal services. The role of the lawyer varies greatly across legal jurisdictions, and so it can be treated here in only the most general terms.
Can a lawyer keep to himself the papers of his client in case the client does not pay his fees?
A lawyer can take the lien of client court’s documents only if the client has not paid or refuse to pay the fixed fees but contrary to this above statement judgements has shown that even on failing to give the fees to the lawyer a lawyer does not has right to hold client’s court documents as held in R.D. Saxena vs. Balram Prasad Sharma (AIR 2000 SC 3039) that while it was a moral obligation and professional duty of the lawyer to return the brief when the client is required to change his counsel but also declared that not returning the file would be considered as professional misconduct on the part of erring lawyer hence it can be clearly said that lawyer cannot hold on the client court’s documents and papers for serving his ulterior motive by demanding extra or more money from the client apart from the fixed fees already paid.
What is retainment of Client’s Document?
Lawyers and Advocates, in addition to being professionals, are also officers of the courts and play a vital role in the administration of justice. Retainment of Client’s documents is holding on to the client’s document which means having it or taking it into grasp. The general practice says that if a client fails to pay the fees then the lawyer can take client’s court document into lien and hold it with himself but Rules of professional responsibility allow valid liens to prevail against a lawyer’s obligation to return papers and property to a client when a representation ends.
Section 171 of Indian Contract Act, 1872 states that retaining the property for security in absence of the contract to the contrary which means that Bankers, factors, wharfingers, attorneys of a High Court and policy-brokers may, in the absence of a contract to the contrary, retain as a security for a general balance of account, any goods bailed to them; but no other persons have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that effect but goods referred to in Section 171 of the Contract Act are saleable goods. There is no scope for converting the case files into money, nor can they be sold to any third party. Hence, the reliance placed on Section 171 of the Contract Act has no merit.
The law of the retaining lien displays a certain amount of ambivalence. On the one hand, the lien is well established. On the other, various anomalies and exceptions suggest some underlying disquiet, for which it will later appear there are good reasons. India’s Supreme Court recently forbad retaining liens on litigation files but on the other hand some other nations allow retention of funds or of documents when reasonable in the circumstances. Halsbury laws of England suggests two types of remedies to the lawyer if the client has not paid him the fees he may retain his court documents or he may appeal to the court for such retention order. Hence, their lies the conflict on status of holding on or retention of Client’s Court documents.
Demand for an additional amount from the client is unethical and amounts to legal malpractice
Demand of extra amount apart from the fixed amount in my view should be considered as bribery and is to be put under the category of corruption. It must be the sole decision of the client whether to provide a lawyer with extra sum or not and must be given to him out of grace, respect towards him as perquisite and bonus but in now way a client is to be suppressed by a lawyer or come under pressure in anyway or to be compelled to pay to lawyer more than the amount already fixed by them in a contract.
An agreement between a client and lawyer is considered to be a fiduciary relationship which is based on trust, thus any compulsion to pay an additional amount to the lawyer must not be in between such relationship. Such demand for more fees than the fixed is thus considered to be unethical and is regarded as misconduct and legal malpractice.
A lawyer is obligated to comply with a code of ethics that is adopted by the state in which the lawyer practices. These rules, typically known as the Model Rules of Ethics, or Ethical Rules, address a lawyer’s conduct in various situations. A lawyer has a duty, in all dealings and relations with a client, to act with honesty, good faith fairness, integrity, and fidelity. He or she must possess the legal skill and knowledge that is ordinarily possessed by members of the profession. A lawyer should not take any action that is improper under these rules or that which even suggests the appearance of impropriety and any undue influence on part of a lawyer towards his client is to be treated as legal malpractice.
Undue Influence by a Lawyer on his client
When a lawyer demands more to be paid by retaining client’s court documents and files, the undue influence comes into role where a client is not left with any option apart from paying additional fees to his lawyer. Here undue influence means where it is established that a plaintiff was induced to enter into a contract or transaction by the undue influence of the defendant, the contract may be rendered voidable. If undue influence is proved in a contract, the innocent party is entitled to set aside the contract against the defendant, and the remedy is rescission as the law of undue influence was applied and developed by the Court of Chancery, it developed into two distinct classes: ‘actual’ undue influence and ‘presumed’ undue influence while in jurisprudence undue influence is an equitable doctrine that involves one person taking advantage of a position of power over another person. This inequity in power between the parties can vitiate one party’s consent as they are unable to freely exercise their independent will.
Thus, a lawyer always stands in a position to dominate the will of his client and always make use of them for serving their ulterior motives. And if such undue influence lies this makes the contracts of lien or retaining of client’s property voidable at the ption of client which is an affected party. Hence, Section 16 of Indian Contract Act which is read as:
- A contract is said to be induced by ‘undue influence’ where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other.
- In particular and without prejudice to the generality of the foregoing principle, a person is deemed to be in a position to dominate the will of another
- Where he holds a real or apparent authority over the other, or
- Where he stands in a fiduciary relation to the other.
makes such contracts which are resulted from an undue influence voidable at the option of affected party i.e client.
What actions can be taken against the lawyer for holding on to the documents?
Section 35 of Advocates Act, 1961 talks about punishment of advocates for misconduct 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. In the case Noratanmal Chaurasia vs. M.R. Murli the Supreme court has held that misconduct has not been defined in the Advocates Act, 1966 but misconduct envisages breach of discipline, although it would not be possible to lay down exhaustively as to what would constitute misconduct and indiscipline which, however, is wide enough to include wrongful omission or commission, whether done or omitted to be done intentionally or unintentionally.
Here professional misconduct includes ill treatment to his client by demanding more and holding on of client’s documents and papers unless the client pay an additional fee to the lawyer. Disciplinary committee has power to reprimand the advocate, suspend the advocate from practice for such period as it may deem fit or remove the name of the advocate from the State roll of advocates.
What is Lawyer’s Responsibility towards his client?
Section 49 (1) (c) of Advocate Act, 1961 even grants general power to The Bar Council of India to make rules relating to the standards of professional conduct and etiquette to be observed by advocates. The rules formed by Bar Council of India is given in Chapter – II of Part IV of the Bar Council of India Rules tells the duty of an Advocate to the Court, to the client, to opponent, to colleagues etc.
An Advocate shall not do anything whereby he abuses or takes advantages of the confidence reposed in him by his client. It is the responsibility of a lawyer not to demand more than fixed by the contract. and must inform about the fee structure sooner as possible and no alteration or addition can be made unless to the contract to contrary by client and lawyer.
Where to complain when your lawyer holds your document?
Each state has a bar association or similar organization that is empowered to discipline attorneys. The purpose of such discipline is to prevent the misconduct from happening again so client can complain to the bar association against such lawyer. And the client can also complain to Bar Council of India and As per Section. 36 of Advocates Act, 1961 the Disciplinary Committee of Bar Council of India may may either of its own motion or on a report by any State Bar Council or an application made to it by any person interested withdraw for inquiry before itself any proceedings for disciplinary action against any advocate pending before the disciplinary committee of any State Bar Council and dispose of the same. Thus, you may complain to State Bar Counsel or if the name of the lawyer is not enrolled then you may directly complain to BCI.
Client-Lawyer relationship is considered to be a fiduciary relationship and consists of obligation of lawyer towards his clients and vice versa. Undue Influence may lie in fiduciary relationship where a lawyer stands on a position to dominate the will of his client and thus compelling his client to pay more otherwise lawyer will hold on client’s court documents is concluded to be and considered as legal misconduct and violation of principles of professional ethics and conduct and such unethical practices by lawyer is to be considered as corruption.