DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

ACADEMIC YEAR – 2020-21

SUBJECT – Professional Ethics

TOPIC – ADVOCATES ACCOUNTABILITY TO THE CLIENT

SUBMITTED TO: SUBMITTED BY:

Dr. Aparna Singh, Utkarsh Khandelwal
Assistant Professor 160101162
Dr. RMLNLU Section-B
Acknowledgement

I would like to express my gratitude to all those who helped me in this topic. I extend my
sincere acknowledgements to Dr. Aparna who gave me the opportunity to make a project
analyzing the accountability of advocates to their clients.
I would also like to thank my friends for their constant help and valuable suggestions.
I further extend my thanks to library staff of DR. RAM MANOHAR LOHIYA NATIONAL
LAW UNIVERSITY who helped me in getting all the materials necessary for the present
project.
 Table of Contents

I. INTRODUCTION.............................................................................................................4
A. Who is an advocate?......................................................................................................4
II. NATURE OF ADVOCATE-CLIENT RELATIONSHIP.................................................5
A. Contractual relationship.................................................................................................5
B. Fiduciary relationship....................................................................................................5
C. Agency relationship.......................................................................................................5
III. ESTABLISHING A RELATIONSHIP.........................................................................5
A. Fees................................................................................................................................6
B. Confidentiality...............................................................................................................6
C. Conflicts of interest........................................................................................................7
D. Taking and following instructions.................................................................................7
E. Clients’ money...............................................................................................................7
F. Communication..............................................................................................................7
IV. ‘LAWYER-CLIENT RELATIONSHIP’ TO SUCCEED AS AN ADVOCATE.........7
A. Understanding Client’s Situation or Business...............................................................8
B. Understanding Client’s Financial Status........................................................................9
C. How to Deal with a Case Which is False or Dishonest...............................................10
D. Understanding Client’s Requirement on the Grounds of Courts or Tribunal to Appear
10
E. Knowledge, Understanding How Laws Will Apply in Client’s Case..........................11
V. DUTY OF AN ADVOCATE TOWARDS  THE CLIENT.............................................12
VI. CONDUCT WITH CLIENT........................................................................................13
 I. INTRODUCTION

A. Who is an advocate?
Merriam-Webster: An advocate is a one who pleads the cause of another or one who
defends or maintains a cause or proposal or one who supports or promotes the interests of
a cause or group.1
According to dictionary.com: An advocate is a person who publicly supports or
recommends a particular cause or policy or a person who puts a case on someone else's
behalf.
An advocate is a professional or non-professional in the field of law. Different countries'
legal systems use the term with somewhat differing meanings. The broad equivalent in
many English law–based jurisdictions could be a barrister or a solicitor. However,
in Scottish, South African, Italian, French, Spanish, Portuguese, Scandinavian, Polish, South
Asian and South American jurisdictions, "advocate" indicates a lawyer of superior
classification.

In India, the law relating to the Advocates is the Advocates Act, 1961 introduced and thought
up by Ashok Kumar Sen, the then law minister of India, which is a law passed by the
Parliament and is administered and enforced by the Bar Council of India. Under the Act, the
Bar Council of India is the supreme regulatory body to regulate the legal profession in India
and also to ensure the compliance of the laws and maintenance of professional standards by
the legal profession in the country.

Each State has a Bar Council of its own whose function is to enroll the Advocates willing to
practice predominately within the territorial confines of that State and to perform the
functions of the Bar Council of India within the territory assigned to them. Therefore, each
law degree holder must be enrolled with a (single) State Bar Council to practice in India.
However, enrollment with any State Bar Council does not restrict the Advocate from
appearing before any court in India, even though it is beyond the territorial jurisdiction of the
State Bar Council which he is enrolled in.2

Section 2(1)(a): Advocate means an advocate entered in any roll under the provisions of
this act.3

1
https://www.merriam-webster.com/dictionary/advocate
2
https://en.wikipedia.org/wiki/Advocate
3
The Advocates Act, 1961
 “It has been argued that the defining feature of a profession is a commitment to
promote and preserve the public good … that the interests of society are advanced by
the existence of a genuine legal profession rather than a legal industry in which
lawyers operate businesses in the Law … The challenge faced by the profession is to
instil, in difficult times, the sense of a corporate responsibility based on a genuine
belief that the practise of the Law is a noble calling and not just a job.”4

II. NATURE OF ADVOCATE-CLIENT RELATIONSHIP

A. Contractual relationship
In essence, the legal services offered by an attorney to his client are based on a contract.
Depending on the circumstances this kind of contract may be express or implied, but
eventually, the attorney will have to explicitly state his terms of employment and the client
must sign in a show of consent. In this regard, the contractual relationship will be guided by
the ordinary rules of contract law. Your attorney must be ready to read out he terms of the
contract before you append your signature.

B. Fiduciary relationship
As aforementioned, attorney-client relationship is safeguarded by the rules of professional
ethics. Therefore the attorney must demonstrate trust, confidence, faithfulness, and loyalty to
his client. This kind of relationship ensures that the attorney advances the interests of the
client at all times. The advocate is required to avoid conflict of interest or behaviors that may
lead to a miscarriage of justice. The interest of the client must always override those of the
advocate on record.

C. Agency relationship
It is a rule of thumb that the attorney is an agent and the client is the principal. This means
that the lawyer has the authority to act on behalf of his client in specific matters while
exercising a specified amount of powers. On his part, the advocate is required to share vital
information with the client in the decision-making process.

4
Simon Longstaff, The lawyer’s duty to the community, St. James Ethics Centre, 1995.
 III. ESTABLISHING A RELATIONSHIP

When a lawyer is employed in a matter, he is under a duty to diligently assess the client’s
cause and make an honest determination of its merits, whether there is indeed a legal claim,
the best way to pursue the claim, and the probable result of any action taken. A lawyer should
not encourage a claim with no merits just for an opportunity to bill the client. The lawyer
must also refrain from making promises on outcomes that are beyond their control. Where the
matter can be resolved through a fair settlement, the lawyer is expected to advise the client to
avoid or end litigation if it has begun.

A. Fees
Lawyers owe their clients a duty of disclosure with regard to their fees. Clients should know
upfront what they will be charged for legal services and what expenses can be expected for
each service. The lawyer is expected to send regular bills, clearly setting out charges for each
service performed. Lawyers are not allowed to take on the expenses of litigation – the client
is responsible for such expenses/costs – the lawyer may, in good faith, advance the cost of
those expenses as a matter of convenience but the client is expected to reimburse the lawyer.

Clients are under a duty to pay for the services of their lawyer. Although professional rules
discourage lawyers from suing for their fees, a lawyer can take legal action for their fees to
prevent injustice or fraud. Subject to these conditions, a lawyer can commence legal action
one month after the delivery of their bill to the client (personally or to their last known
address).

Payment for fees can be problematic in the lawyer-client relationship. Unlike tangible goods
that can be repossessed upon failure to pay, usually the client reaps the benefit of the lawyer’s
intellect and services, which cannot be repossessed by the lawyer. I find often that clients
believe, for instance, that payment for drafting of an agreement is contingent on whether or
not the transaction with the third party goes through. This is a classic example of the A-B-C
relationship. As children, we would say to intruders/third parties in a discussion, “This is
between A and B, so C your way out of this.” The agreement between lawyer and client for
fees to draft an agreement is between A and B. Unless otherwise agreed, the success of the
transaction between the client and the third party (the party entering into contract with the
client) is the C that should be kept out of the A and B agreement.
So, lawyers owe clients disclosure on their fees, clear bills, and in turn clients should settle
their bills promptly. Your lawyer also has bills to pay!

D. Confidentiality
The lawyer is under a duty to preserve the client’s confidences. All information about the
client obtained in the course of the lawyer-client relationship cannot be revealed to third
parties without the permission and/or consent of the client or under an order from a court.
This duty extends to the employees of the lawyer and survives the termination of the lawyer-
client relationship.

E. Conflicts of interest
The lawyer’s interests, or the interests of their associates, must not conflict with those of the
client. A lawyer should discontinue the relationship if he discovers that a conflict of interest
arises because of a relationship with another client (former or current). At the very least, the
lawyer must inform the client of the potential conflict as soon as they become aware of it.

F. Taking and following instructions

Lawyers work under the instructions of the client. The lawyer must promptly and efficiently
carry out the instructions of the client provided they are in accordance with the law. The
client cannot expect the lawyer to break the law on their behalf.

Note here that lawyers are not permitted to make “housecalls.” Except in special
circumstances, like the age or state of health of the client, or for some urgent reason
preventing the client from being at the lawyer’s office, the lawyer is not allowed to go to the
client’s house or place of business to give advice to or take instructions from the client.

G. Clients’ money
Apart from monies for fees and reimbursement of expenses, monies received from or on
behalf of the client are held by the lawyer on trust for the client. Those monies should not be
co-mingled with the lawyer’s other funds. Such monies should be held separately in a special
account and accounted for to the client. Also, such monies must not be expended without the
permission of the client.
 H. Communication
The lawyer owes the client regular and clear, written updates on the progress of their matter.
The client in turn must promptly communicate to the lawyer any changes or information
concerning their cause. There is a mutual duty of respect and courtesy although as the
professional, the lawyer bears a heavier burden in this mutual duty. Clients may get frustrated
once in a while and may not be on their best behaviour. The lawyer must be patient in
assisting the client to understand the law and the legal processes, and in managing their
expectations.

IV. ‘LAWYER-CLIENT RELATIONSHIP’ TO SUCCEED AS AN ADVOCATE

After entering the legal profession, the very first mantra to be heard by the clients is — “My
case is urgent and everything must be done immediately”. That’s what a client will tell its
advocate. It takes years to recognize the true emergencies and to learn to read successfully
those clients whose cases could wait.

A. Understanding Client’s Situation or Business

What a client expects out of a lawyer? What the client expects is his lawyer should
understand client’s situation by keeping his leg in client’s socks.

 If a client walks to a lawyer charged under the sections of Indian penal code, it is
assumed by the client that the lawyer is well acquainted with all the intricacies
involving penal laws.

 In a similar way, if a big business industry appoints a certain lawyer or a law firm,
it is assumed by the business house that, appointed lawyer is not only well
acquainted with laws regarding the business only but, with business too. If a
lawyer is serving specific business houses, demonstrating one’s understanding of
those industries will impose confidence in a lawyer’s abilities.

 Clients want to engage with those lawyers who not only know the ins and outs of
particular laws regarding that business but, also want their lawyers to function as a
strategic planner of their business too.
If one asks a big business house’s owner, what their lawyers do for them? The
answer mostly will be a shrunk smile. As most of the time, it is these lawyers who
are the real head behind the deals. That sort of knowledge allows lawyers to
 understand how a transaction, a court proceeding or even a simple contract
provision affects the business.

 A lawyer should make his client believe that value of their lawyer-client
relationship goes further than simply the forms involved in a legal proceeding. It’s
in the strategy, the analysis, the service, whole understanding of client dangles.

 A lawyer really should not be a technician. Lawyers should try to understand

what clients are trying to accomplish and, if lawyers ignore those needs, at some
point of time, the clients will essentially just push a button and get a document and
fill in the blanks themselves.

 Clients do not trust lawyers who do not understand their problem or business. It is

often said, a lawyer should have the essential knowledge of dissection and
autopsy if he intends to fight a case for a medical practitioner. Therefore,
understanding client’s business or the problem is the first key step towards
establishing a lawyer-client relationship and understanding one’s client.

 Before discussing client’s problems in detail, one must know the ins and outs of
client’s business. This will not only help in understanding one’s client well but,
will also boost the confidence which your client will have in you.
Nowadays, it is looked up as a trend to practice in a particular field of legal
jurisprudence, say labor law or gambling law. Therefore, attending business
conferences and seminars on these topics may help to increase one’s knowledge
about these laws as well as to make necessary contacts to boost one’s practice.

It is important to respect the fact that a client wants his lawyer’s time, attention and most of
all his services. It is a symbiotic lawyer-client relationship. Staying up to date with latest
judgments, reading briefs thoroughly are few duties which the lawyer needs to fulfill.

I. Understanding Client’s Financial Status

It is a critical part to understand client’s financial condition. The question firstly arises,
whether it is proper for a practitioner to refuse to appear in a case? Because the client
cannot pay or would not pay the fee demanded by the lawyer (vakil). And, what is the proper
fee to be asked in each particular case? It is a great question.
If one thinks that the question of “what fee is to be demanded or paid” is the same thing as
the question “whether the price that is asked for by the shopkeeper is to be paid by the
purchaser” then, he is very much mistaken. If we belonged to an ordinary trade there would
not be any difficulty in answering the question but, as we all belong to a legal profession the
difficult question arises – what is the proper fee we are to demand in a particular case? It
is difficult to lay down the rules.

The only rule that can be laid down is the “reasonable” fee. We all have often heard, for
instance, that the standard of care that a particular person should adopt is the standard of a
man of “ordinary prudence” and so on. So, the only thing that can be laid down with
certainty is that the fee ought to be reasonable and ought not to be unreasonable—
reasonable with reference to various circumstances, the standing of the lawyer, his status, the
particular work, the time that would be taken in the discharge of the work, the place where
the work is discharged, the Court where the case is going to be heard, the difficulties, the
person that appears on the opposite side, etc.

These are some of the circumstances that may determine what in each case is a reasonable
fee.

J. How to Deal with a Case Which is False or Dishonest

A question frequently asked in relation to a lawyer-client understanding is, whether a lawyer
should or should not take case in situations where he believes his client is on the wrong
side of the law or what to do when your client is hiding facts from you or you consider
the case not only bad but, also false or dishonest. What to do in such cases?

An answer to this is also not difficult to give and has been given more than once in
indubitable terms by eminent lawyers.

Further, it is also necessary that what is the truth or the right is established by the legal
evidence. It may be that a man has really committed murder but, is it proper that he should
be convicted on perjured testimony? Is it not our duty to see that he is convicted only on
legal, true and honest evidence given in a Court of law?
Therefore, at least to that extent, it will be our duty to defend the accused in those cases. If
the facts are very complicated, for instance, if you see a man with your own eyes attacking
another man, shooting him and killing him actually, how are we sure that it is a case of
murder? How are we sure that the man who was actually shooting was not actually blind,
owing to temporary or permanent causes? How are we sure that he saw the man in front of
him and shot him with the intention of killing him?

There are many complicated questions which will arise. Therefore, the safest rule for a
practitioner to follow would be not to prejudge the case for himself but, to take up the
engagement and do what he reasonably and legally can for the client.

K. Understanding Client’s Requirement on the Grounds of Courts or Tribunal to Appear

Whether it is proper to refuse or to accept an engagement because it is in a particular Court?
It may be for various reasons. For instance, very often it is said that people would not appear
in a Subordinate Court. All Courts are representative of the sovereign power. It may be
that a lawyer has not got the time, it may be that more important engagements prevented him
from appearing. At times, there are valid reasons too.

If, as a matter of fact, he can’t find the time and the convenience to appear in a Subordinate
Court, it would be absolutely improper and unprofessional on his part to refuse to appear
simply because the tribunal is a subordinate tribunal. If the client’s needs are to be fulfilled
by approaching the subordinate court and the lawyer because of some engagement is unable
to represent him in such case, it is the duty of the lawyer to say No.

L. Knowledge, Understanding How Laws Will Apply in Client’s Case

There are situations when the client, which one represents, also knows little intricacies of
the law. Nowadays, no information is hidden from anyone, thanks to the age of the internet.
But, by reading ordinary blog posts or by referring to websites which provide for
the explanation of sections of laws, a client may outcast a lawyer’s skill.

Therefore, it is equally important for a lawyer to understand how a particular code will
affect his client’s case. Say, a situation in which a person “A”, situated in Bihar, consults a
famous lawyer in Mumbai and asks for legal assistance for registering a Society in Bihar
under Societies Act 1860. Lawyer addressed the draft by referring to “Registrar of Joint-stock
Companies” as per requirement of section 1 of Societies Registration act.

But, amendment done by the state of Bihar requires the society to be registered with
“Inspector-General of Registration”. The registration failed as a result of which the reputation
of lawyer and money of client went in vein.5

One of the main objects of the legal profession is to maintain a high standard of
professional conduct. In my opinion, that conduct consists of following three cardinal
principles, i.e.

1. Be true to your client

2. Be true to yourself
3. Be true to the Court

The first principle is based on the honesty of purpose of the profession. If after collecting
materials for the case from the client, you find that the client is not likely to succeed, it is
your duty to convey that opinion to your client – irrespective of the question whether the
client will employ you or not.

Clients are mostly interested in the output. How well their lawyer managed to affect the
entire case? Was the litigation’s result as per client satisfaction or not? A client does not
value the quality of legal input. What they want is the result. To win client’s trust and
retain more client’s business, it is imperative to take the perspective of your client and then
evaluate the quality of the interactions you have.

Be robust in this and measure your success primarily on how well you helped your client to
address the business or personal issue that compelled them to engage you in the first place.

As Will Roger said – “Make Crime pay, become a Lawyer”.

I know it’s not easy to discover the truth, to make crime pay. But, once you’re able to build a
successful lawyer-client relationship, you know you’re on the track. Now, you’ll be able to

5
(1925) 22 LW (JS) 63 THE VAKIL AND THE CLIENT
analyze, what’s exactly going wrong? This will take you just on the threshold of success. I
hope this post gave you a deep insight of how a strong Lawyer-client relationship is
developed.

V. DUTY OF AN ADVOCATE TOWARDS  THE CLIENT

1) An advocate shall fearlessly uphold the interests of his client by All fair and honorable
means without regard any unpleasant consequences to himself or any other.
2) An advocate shall fairly and reasonably submit the case on behalf of his client.
3)  An advocate shall pay attention which he is capable of giving to the case he is dealing.
4) An advocate shall not act on the instructions of any person either than his Client or
authorised agent.
5) An advocate shall not ordinarily withdraw from engagements ones accepted, without
sufficient cause and unless reasonable and sufficient notice is given to the client.
6) An advocate shall not do anything whereby be abuses or takes advantage. of the
confidence reposed in him by his client.
7) An advocate shall not accept a fee less than the fee taxable under the rules when the client
is able to pay the same.
8) An advocate shall not adjust fee payable to him by his client against his own personal
liability to the client which liability does not arise in the course of his employment as an
advocate.
9) An advocate should keep accounts of the clients money entrusted to him.
10) An advocate shall not lend money to his client for the purpose of any action or legal
proceedings in which he is engaged by such client.
11) An advocate shall not disclose Communications made to them in course of their
professional engagement even after the case is over.6

VI. CONDUCT WITH CLIENT

The advocate’s attitude towards dealing with his clients has to be scrupulously honest and
fair and the punishment for professional misconduct has twin objectives- deterrence and
correction.

6
srdlawnotes.com/2016/03/duties-of-advocate.html
An Advocate attesting a sale deed which was false to his knowledge and attempting to
create a title in himself in respect of property is held guilty and suspended from practice
for 3 months. The fact that complainant and the advocate settled the matter does not
mitigate or wipe out professional misconduct. 7
Misappropriation of clients property and money by misrepresentation in the prospective
off his conviction by death penalty constitutes the gravest professional misconduct of an
advocate and breach of trust. It must be construed and dealt with seriously. Removal of the
advocate from the rolls of the Bar and penalty of Rs. 25,000/- is not unjust or unfair. 8

Retention of litigation papers against his unpaid dues by an advocate runs counter to the
interest of his client and his legal professional ethics, amounting to professional
misconduct u/s 35 of Advocates Act, 1961, and makes him liable to punishment.

Advocate on termination of attorney had no lien over the litigation files for his unpaid fee.
Refusal to return the file to the client amounts to misconduct u/s 35 of Advocates Act,
1961. If advocate has any genuine claim or grievance against his client the appropriate
course is to return his brief with endorsement of no objection and fight for his rights as per
law. 9
Conduct of the complainant, an advocate of the court is prosecuting his own client by
instituting a frivolous case and that too for not paying the contingent fees is completely
unbecoming of his profession and unacceptable as norm of conduct of an advocate. 10

An advocate withdrawing from suit without prior information to party is serious

misconduct and the advocate can be prosecuted u/s 35 of Advocates Act, 1961. 11

Money procured from client for obtaining a favourable report amounts to professional
misconduct. 12

7
Ajitsinh Arjunsinh Gohil v. Bar Council of Gujarat, AIR 2017 SC 1927 : 2017 (5) SCC 465.
8
Dhanraj Singh Chaudhary v. Nathulal Vishwakarma. AIR 2012 SC 628 : 2012 AIR (SCW) 317 : 2012 (1)
SCC 741.
9
R.D Saxena v. Balaram Prasad Sharma, AIR 2000 SC 291 : 2000 (7) SCC 264.
10
Munni Kuwar v. State of Bihar, 2016 (3) PLJR 173 : 2016 (2) BBCJ 101.
11
Raghu Raj Shukla v. IInd Additional District Judge, Faizabad , (Allahabad), 2005 (3) R.C.R (Civil) 194 :
2004 (22) LCD.
12
Chandra Shekhar Soni v. Bar Council of Rajasthan, 1983 (4) SCC 255 : AIR 1983 SC 1012.
Furthermore, advocate withdrawing suit filed by complainant’s daughter for declaration
that she was not the lawfully wedded wife of the defendant and thereafter filing
application for maintenance without her consent by obtaining signature on blank paper was
held guilty of misconduct. 13

13
Gian Chand Goel v. Bar Council of India, 1997 (11) SCC 108 : 1999 AIR SCW 4806.