Capping fees of advocates

For the motion-:

The Supreme Court favours a law to check growing commercialisation of the legal
profession and to “prescribe floor and ceiling in fees” to ensure the poor were not nudged
out of the justice delivery system.

Expressing concern over lawyers demanding “astronomical” fees from litigants, the top
court on Tuesday asked the government to ensure that the poor too could get legal
assistance from the best lawyers so that their right to equal justice was not violated.

The legal profession should make its services available to the needy on the lines of state-
run hospitals, a bench of justice AK Goel and justice UU Lalit said.

“It was observed that like public hospitals for medical services, the public sector should
have a role in providing legal services for those who cannot afford fee,” the bench said,
citing the 131st law commission report.

What a lawyer charges a client remains largely unregulated in India.

The advocates’ fee rules are only for guidance and there is no bar to money claimed
beyond what is fixed under the rules.

The Supreme Court rules 2013 permit a lawyer to charge a maximum of Rs 8,000 per
hearing, barely a fraction of what is actually billed.

The country’s top lawyers charge anywhere between Rs 10 lakh and Rs 20 lakh for an
appearance in the apex court.

The court also said though a law commission report on ethics in the legal profession was
submitted in the year 1988, no effective law was enacted to regularise the fee or for
providing the “public-sector services” to needy litigants without any fee or at
standardised fee.
However, the legal community is a divided house on the issue. While some believe there
should be no regulation of fees, others think otherwise.

Senior advocate and former Supreme Court Bar Association president, Dhushyant Dave
says, “The suggestion by the court is completely unconstitutional and illegal. Were the
judges who were previously advocates not charging astronomical fees ? It is sad that they
now feel that fees should be capped. We are not a communist nation, where everything
can be regulated. Lawyers have a fundamental right to practice. It’s not a right order. “

Not everyone agrees with him.

Another Supreme Court lawyer, Gopal Sankaranarayanan, says, “ There should be a cap
on advocate fees. Without a cap, we lose the idea of being a profession and become
commodities that go to the highest bidder. In this case, I feel self regulation will fail and
government may have to step in.”
The court said commercialisation to the extent of exploiting the litigant and misbehaviour
to the extent of browbeating the court needed to be checked.

Breach of professional duties to the court and the litigant affecting the right of a person
to speedy and inexpensive justice should also be looked into, it added.
Lawyers generally charge clients according to their paying capacity. So, the fee varies
from client to client, with corporate clients paying the most usually.

Recently, in a judgment pronounced by the Hon'ble Supreme Court in the case of B

Sunitha v. State of Telangana, the Court advised the Government to check on the
unethical practices followed by lawyers. The case brought into light the financial abuse
that the victims of injustice have to go through by some members of the legal
community.

 In July, 1998, B. Sunitha's (hereinafter referred to as the 'Appellant') husband died in a motor accident.
A claim before the Motor Accident Claims Tribunal (hereinafter referred to as the 'MACT') was filed
wherein one of the Respondents in the present case was the advocate for the Appellant.
Compensation was also given in the said case.
 The Respondent charged a fee of INR 10 Lakhs (USD 15590 approx.). Later on, the Appellant was
forced to sign another cheque worth INR 3 Lakhs (USD 4677 approx.) on October 25, 2014, despite
her informing that she has no funds in the account.
 On November 2, 2014, the Appellant received an e-mail from the Respondent wherein it was claimed
that the fees of the Respondent was 16% of the amount received by the Appellant.
  In the matter of Mr. G.: A Senior Advocate of the Supreme Court 2 (1955) 1 SCR 490, it was held that the
claim of an advocate based on a share in the subject matter is a professional misconduct.
 In VC Rangadurai versus D. Gopalan3 (1979) 1 SCC 308, it was observed that relation between a lawyer and
his client is highly fiduciary in nature. The advocate is in the position of trust.
 Thus, the Court was of the view that the application of the Respondent deserves to be quashed as it
was against the public policy and a grave professional misconduct.
 Talking about the importance of the legal profession the Court stated that 'Undoubtedly, the legal
profession is the major component of the justice delivery system and has a significant role to play in
upholding the rule of law. Significance of the profession is on account of its role in providing access to
justice and assisting the citizens in securing their fundamental and other rights.' The Court was of the
view that it is the fundamental right of the poor to get justice and the exorbitant amount charged as
fees by the Advocates is serious violation of this right.
 Further, the observations made in the 131st Report of the Law Commission, 1988, were brought to
light. These were:
o Role of the legal profession in strengthening the administration of justice must be in
consonance with the mandate of Article 39A to ensure equal opportunity for access to justice.
o It was observed that like public hospitals for medical services, the public sector should have a
role in providing legal services for those who cannot afford fee.
o Referring to the lawyers' fee as barrier to access to justice, it was observed that it was the
duty of the Parliament to prescribe fee for services rendered by members
 Focusing on the sleeping nature of the system, the Court pointed out that though the 131st Law
Commission Report was submitted in the year 1988, still no step is taken in the last 29 years.

Thus, in the judgement the Court expected and directed the authorities to look into the matter by introducing
requisite legislative changes and put a cap on lawyers' fees so that access to legal services to get justice is
warranted.