Introduction
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. The misconduct of an advocate, especially that of a professional one, is a behaviour seriously looked down upon, by the courts as well as other advocates. The misconduct not only taints the reputation of himself but also weakens the faith that the public has on the Indian Legal System. 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.
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.
A.Essentials to prove professional negligence
A.1 Duty of care
The existence of duty to care is essential in cases of negligence. There exists a fiduciary relationship between the advocate and the client, and means that though there exists no explicit contract between the two, there is an assumed responsibility to be taken by the advocate. 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.
A.2 Breach of duty
The plaintiff needs to prove that there was a breach of duty from the advocate. The standard test to prove a person guilty of negligence is the conduct of the prudent person in a given situation but in cases of professionals, they must possess a higher duty of care. 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.
A.3 The loss caused due to negligenceThe plaintiff must prove that the loss suffered originates due to the negligent actions of the advocate. It must be proved that the advocate’s failure to perform duty is the proximate cause of damage to the plaintiff. In Lake vs Bushby, the purchaser of the property appointed an advocate 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 advocate’s negligent act.
B.Various grounds of negligence that the advocate can be charged against are:
1. Failure to give proper legal advice
2. Failure to inform the client about unusual circumstances
3. Failure to inform the client about the progress of the case
4. Misconduct of legislation
5. Filing suit in a wrong court
6. Fail to take reasonable care of evidence
7. Failure to pursue proceedings
8. Failure in setting claims.
C. Defences which can be claimed by the advocate
The liability imposed on the advocate is not absolute one and can be avoided on various different grounds.
1.Contributory negligence: This refers to the situation where the negligence of the advocate is further escalated due to the negligent actions of the client himself. It allows the advocate to escape liability. Contributory Negligence, however, needs to be proved by the advocate.
2. An error of judgement: This is another ground which can be claimed by the advocate to avoid the liability.
3.Acting on client instruction: If an advocate is acting on the instructions of the client and which in turn is the reason for the loss suffered by the client, then the advocate can claim the defence of acting on the client’s instructions.
4.Ignorance of remote provisions: No advocate can inherit all existing legal statutes and provisions. Therefore, ignorance of remote statues is one ground that can be claimed by the advocate.
C. Remedies
Remedies available to the clients can either be an administrative or a legal remedy. An administrative remedy is the one in which the decision is being passed by the Consumer court. Legal remedies are the ones which are given by the respective state bar council that the advocate is registered with..
C.1 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.
C.2 Remedies 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 licence 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 that 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 and cannot be exempt merely on the ground of legal practitioner.
Conclusion
Advocates like various other professionals should be held liable for their misconduct. Advocates are one of the most integral parts in the proper functioning of the legal system in India. It is their duty to work with the dignity and decorum of the court. It is necessary that during the practice the advocates keep the various principles of professional ethics in mind and make decisions that will be in the best interest of the client.
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