This article is written by Darshit Vora of SVKM Narsee Monjee Institute of Management Studies, it deals with the issue of solicitor negligence and describes the various legal remedies available to the client.
Table of Contents
Introduction
A solicitor is a legal practitioner with adequate qualifications which offers his/her professional service to the clients. According to the Oxford dictionary, an advocate refers to a person who puts a case on someone else’s behalf. A solicitor owes a duty of care towards his/her clients and must perform the role assigned with a reasonable standard. There are many unreported cases of lawyer’s negligence in India. According to the Black’s Law Dictionary misconduct refers to a transgression of some established and definite rule of action, a forbidden act, unlawful or improper behaviour, willful in character, a dereliction of duty. The Supreme Court while interpreting the term misconduct mentioned that there is no precise meaning the ambit should be considered based on the subject matter. Misconduct of an advocate refers to conduct that is unfit for the exercise of his profession or would likely hamper and embarrass the administration of justice may be considered as misconduct.
Illustration:
If Aman is the solicitor of Bulbul but on the date of arguments Aman is not present in the court without giving a legitimate reason which results in Bulbul losing the case. In this scenario, Bulbul can file a suit of professional negligence against Aman.
Essentials to prove professional negligence
- Duty of care.
- The duty was breached.
- The loss was caused due to the negligence of the solicitor.
Duty of care
The existence of care is essential in cases of negligence. Especially in cases of solicitor and client, there exists a fiduciary relationship between the two. It means that there is no explicit contract there is an assumed responsibility taken by the solicitor from his client. In Fletcher & Sons vs Jubb Booth and Helliwell, the lawyer was instructed by the client to initiate action against the local authority for personal injury. He failed to sue the local authority and it excited the limitation period. Here, there was a duty of care owed by the lawyer which was breached therefore the court held that the lawyer was bound to pay compensation to the client.
Duty was breached
The plaintiff needs to prove that there was a breach of duty from the solicitor. The standard test to prove a person guilty of negligence in the conduct of the prudent person in a given situation but in cases of professionals like solicitor have a higher duty of care and must exercise the duty with more care as compared to an ordinarily prudent man. In Stronghold investments ltd vs Renekema, the lawyers of the purchaser of the property failed to advise on necessary formalities related to fire insurance and the property got damaged due to fire. And the loss was suffered. The lawyer was held liable for negligence as he failed to give the required advice.
The loss was caused due to negligence
Another ground that is supposed to be proved by the plaintiff is due to solicitor’s failure of exercise of duty caused damage to the client. When such damages are proved they are supposed to be compensated by the solicitor. It must be proved that the solicitor’s failure to perform duty have proximately caused damage to the plaintiff. In Lake vs Bushby, the purchaser of the property appointed a solicitor who failed to inform the purchaser that there was no permission on building a bungalow which stood on the property. The purchase was complete. The court held that loss is suffered to the client due to the solicitor’s negligent act.
Procedures to sue a solicitor in India
A complaint who is aggrieved by misconduct or negligence of the advocate can file a complaint against the advocate under the Civil procedure code. The complaint can be filed in English or Hindi or in any other regional language. A prescribed fee should be paid according to the Indian Bar Council rules.
- Step 1: The Secretary of the Bar council can either call the complainant to remove the errors from the particulars and the document. It can also tell the client to pay a prescribed fee if he has not paid the proper fees.
- Step 2: The charges against the advocate can be dropped if the client is willing to settle and compromise and doesn’t want to carry further inquiry. If the client is not willing to settle the matter would be sent to a disciplinary committee to the state bar proceedings.
- Step 3: The show-cause notice would be served to the advocate by the bar council informing him about the charges claimed by the petitioner and being present on a specified date and submitting his defence. The appearance can be done by an advocate or by any other representative.
- Step 4: The date fixed for the inquiry should not be more than 30 days from the date of receipt which is fixed by the chairman of the disciplinary committee. The notice should be given to both parties mentioning the date, time, and hour.
- Step 5: Notice to the client not appearing by the advocate shall be sent the cost of the notice shall be borne by the complainant unless mentioned otherwise by the disciplinary committee.
- Step 6: The appearance can be made by the parties in person or through an advocate. The court at any time in the proceedings appoints a lawyer as amicus curiae and the fees shall be decided by the court or the council.
- Step 7: If the complainant or the respondent doesn’t appear in the date provided before the disciplinary committee then the committee may proceed with ex-parte proceedings and issue a fresh notice. The party who has failed to appear would have 60 days to challenge the ex-parte judgment passed by the court.
- Step 8: The evidence should be recorded in English if recorded in any other language then it should be translated in English. Day to day proceeding to the disciplinary committee should be recorded.
- Step 9: The opinion of the majority of the members of the committee shall be the opinion of the committee; the members are allowed to give a dissenting opinion by stating the reasons.
- Step 10: The Copy of the Judgement shall be given to both the parties free of cost.
The Judgement pronounced by the committee can be in three forms
- The case shall be dismissed by the committee if there is no ground or proper evidence against the advocate.
- If the advocate is found guilty a legal action can be taken against by the committee.
- If the gravity of misconduct is low then the lawyer would be suspended from his/her office for a specific period of time.
Various grounds of breach
Failure to give proper legal advice
It is a formal duty of the lawyer to give his/her clients proper legal advice. Incomplete or improper legal advice would account for misconduct on the part of the lawyer. Due to the result of wrong advice, it causes damage to the client. In Stronghold investments ltd vs Renekema, failure to give advice led to the loss of the client and the lawyer was therefore held liable for the negligent act.
Failure to inform the client about unusual circumstances
If there are unusual circumstances it becomes a duty for the lawyer to inform the circumstances to the client. Silence can also attract liability. In Neushall vs Mellish, the plaintiff a widow lent a sum of money to F a trickster which lent the money she consulted a lawyer which knew about the weak financial circumstances of F. F fails to return the money. The court held that the lawyer was supposed to advise about such circumstances to the client.
Failure to inform the client about the progress of the case
The advocate has the duty to inform the client about the progress of the case. In Riaz Shaifkhan vs Babu Mustafa, the court held that the advocate is duty-bound to intimate the client about the result of the proceedings. The client should be left with adequate time to avail the remedy.
Misconduct of legislation
The solicitor has to conduct the process of legislation with due diligence. However, there are various instances of negligence on the part of the advocate some of them are as follows:
- Filing suit in a wrong court: It is necessary that the lawyer should file a suit in the appropriate jurisdiction if not filed it can result in loss of time, the money of the client. Eg. Filling case of murder in National Company Law Tribunal.
- Fail to take reasonable care of evidence: No proper care of evidence leads to negligence on the part of the advocate. The efficient care of the evidence should be taken by the lawyer.
- Failing to initiate action against within the period of the limitation period: It is the duty of the lawyer after the consultation with his client to initiate proceeding within the period of limitation. If not it would account for his negligence.
- Failure to pursue proceedings: The lawyer must represent his client without any lapse. Due to lapse, there are probabilities and the court can pass ex parte judgments. This can arise due to negligence on the part of the owner.
- Failure in setting claims: Due to misconduct on the part of the lawyer there is a lapse in settling the claims which lead to the huge loss of the client in this scenario and the advocate would be liable for negligence.
Defences which can be claimed by the advocate
The liability imposed on the advocate is not absolute; it can be avoided on various grounds.
- Contributory negligence: It allows the solicitor to escape liability. For Example A settlement deed is sent to the client who is educated the deed contains various errors but the client doesn’t read the document therefore, the lawyer cannot be held liable for negligence. Contributory Negligence needs to be proved by the advocate. .
- An error of judgement: It is another ground which can be claimed by the advocate to avoid the liability. The lawyer can be held liable in those cases where loss is suffered by the client due to failure to act with due diligence.
- Acting on client instruction: If a lawyer is acting in the instruction of the client and which causes a huge loss to the client then the lawyer can claim the defence of acting on the client’s instructions.
- Ignorance of remote provisions: No lawyer can inherit all existing legal statutes and provisions. Therefore, ignorance of remote statues is one ground that can be claimed by the lawyer.
Remedies
Remedies available for clients are administrative and legal remedies. In administrative remedies, the decision is being passed by the Consumer court. Legal remedies are given by the state bar council. In both instances, a disciplinary committee is being set up.
Remedies under the Consumer Protection Act,1986
The lawyer fails to render service to the client, a liability can be imposed on the lawyer by his/her client. If the fees of the lawyer are being paid to the client then he would be directed to return the fees to the client.
In C.S. Sarma vs P Venkataswamy, In this case, the complainant paid fees for filing of suit the act was not performed therefore the court ordered the lawyer to repay fees with interest to the complainant. The consumer forum can give any adequate relief which it feels appropriate.
In D.K Gandhi vs M Mathais, the plaintiff filed a complaint against the legal professional in the district consumer forum. The district consumer forum directed the professional to pay 3,000 rupees as mental agony to the plaintiff. The state commission overruled the decision. The decision was again reversed by the national commission the ambit of service under Section 2(1) of the Consumer Protection Act, 1986 also includes service provided by the legal professional to the clients.
Remedies are given by the Bar council
The professionals are bound to punish lawyers for their misconduct. The remedies are given to the complainant on the gravity of the misconduct on the part of the lawyer in cases of gross negligence which can lead to the suspension of the license of the lawyer. The court can also give the client to change his /her advocate in cases of negligence from the advocate
In the M Veerappa case, the Supreme Court held a legal practitioner cannot claim exemption from any liability or any loss of any injury by the client due to the negligence of his/her counsel cannot exempt merely on the ground of legal practitioner.
Advocate Immunity
The Counsel enjoys immunity from any kind of misconduct or negligence. This is a principle of the common law. The system was started in order to void re-litigations. If the litigant loses and files a suit of negligence against his counsel and the charges are proved then the original case can reopen. This would have an adverse consequence on the administration of justice. This principle came into existence through various High Courts cases, one of such case was
Giannarelli v. Wrath
Facts: In this case, all the brothers were convicted of perjury two of the brothers filed a suit of the negligence of solicitor and barrister.
Judgment: The Court held that an advocate cannot be sued on the ground of negligence, or out-of-court work, or with the in-court work.
This case was followed by various other cases that provided explicit immunity to the lawyer from any claim of negligence.
In D’Orta vs Victoria Legal Aid, the court held that the advocates enjoy immunity from being sued by their clients. However, this principle has now changed in the UK however the principle has now changed they can be held liable for their negligence.
Legal Provisions in India
Relevant legal provisions regarding advocate negligence in India are as follows:
Section 5 of the legal practitioner (fees) Act, 1926
The legal practitioners shall not be exempted from liability that he has incurred due to professional negligence. No legal practitioner based on the basis of the status is exempted from his/her liability from the duties. The Supreme Court while interpreting this section gave reliance to the judgment passed in Hedley Bryne and Co v. Heller Lord Morris, held that someone having special skills with or without, to apply those skills for the assistance of any other person who relies on such skills a duty of care would arise.
Advocates Act, 1961
Under this Act, the center appoints legal professionals to decide cases of misconduct against legal professionals and also lays down professional standards and various procedures for the disciplinary committee to follow.
Relevant case laws
Suo Moto Enquiry v. Nand Lal Balwani (1999)
Facts: In this case, the advocate of the respondent threw shoes and shouted various slogans in the Supreme Court. Proceedings were instituted against him on two grounds one professional misconduct and another on contempt of court.
Judgment: The accused was held guilty on the ground of contempt of court and was given imprisonment of 4 months and a fine of 2000 rupees. Further, the disciplinary committee found the accused guilty of professional negligence and was removed from the bar council.
Shaburan Yadav v. Hanumandas (2001)
Facts: In this case, the advocate advised his client to bribe the judge. The client acting on the advocate’s advice commits the unlawful act. The action was lodged against the advocate.
Judgment: The Supreme Court held the lawyer guilty on the ground of professional misconduct as it provided wrong advice to his client.
Sterling v. Poulgrain (1980)
Facts: In this case, the plaintiff instructed the legal professional to transfer two farms to a trust. The legal professional failed to perform his duty within a stipulated time.
Judgment: The Court held that there was a breach of contract on the part of legal professionals.
Harish Chandra v. Baiju (2002)
Facts: In this case, the advocate enrolled as an advocate in the bar council of Uttar Pradesh. The claimant instituted the action on the ground of misconduct of the advocate. The compensation of Rs. 8,118 was deposited by the state in the court. The lawyer withdrew the amount and didn’t give it to the client. After the client got to know, a complaint was lodged against the lawyer.
Judgment: The court held that among different kinds of misconduct, misappropriation of a client’s money is one of the gravest. The lawyer should be treated under the Prevention of Corruption Act and be awarded not less than 1 year. The accused lawyer was held liable and his name was removed from the bar council.
Kaushal Kishore v. Balwant Singh (2017)
Facts: In this case, the accused was alleged to have committed misconduct by declaring the unplugged sale deed as null and void without the consent of the client.
Judgment: The Court held the advocate liable on the ground of professional misconduct and suspended the license of the advocate.
Damages
The damages can be measured by placing the client in a position in which he would have been, had the lawyer had discharged his duties properly. In cases where the lawyer fails to file a suit within the period of limitation, the court would allow the client to recover actual loss because it is not certain that the client was going to win the case. In cases of loss of opportunity to defend the client would be awarded with nominal damages. In unusual cases, the lawyer can be held liable for loss of earnings. The client is allowed to recover ratification costs from the advocate if the negligence of the advocate can be rectified.
If a transaction becomes abrogative due to the negligence of the advocate the client is entitled to recover the whole expenditure except any anticipatory gains. The client can also recover damages on any physical inconvenience, distress caused by the act of the lawyer. No recovery of loss is possible if the damage could have been avoided by the client.
Heywood vs Wellers
Facts: In this case, the client instructed the lawyer to institute an action against a person who was trying to molest her. Various errors were committed by the accused during the performance. It resulted in making the proceeding ineffective. The woman has filed a complaint against the lawyer.
Judgment: The Court on the grounds of anxiety, vexation, and mental distress awarded damages to the women.
Conclusion
Lawyers are one of the most integral parts of society. It is their duty to work with the dignity and decorum of the court. Lawyers like various other professionals should be held liable for their misconduct. Through the claim of re-litigation, the lawyer cannot escape the liability. There are two options provided to the client to report negligence cases against the lawyer first in the Consumer Forum and second in the Bar Council.
However, it is necessary to assume that the opinion provided by the advocate to his client would be flawless. It is necessary that while dealing with cases he should exercise reasonable skills. Even after exercising those skills the client losses that won’t amount to professional negligence or misconduct. It is necessary that during the practice the lawyer keeps professional ethics in mind and takes decisions in the best interest of the client.
References
[1]https://www.vakilno1.com/legal-news/disciplinary-proceedings-advocates.html.
[2]https://blog.ipleaders.in/professional-misconduct/.
[4]https://blog.ipleaders.in/how-to-complaint-against-a-lawyer/.
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