Advocacy is a profession, it is not a business and the purpose of this profession is to serve the people. Explaining the importance of a profession, Roscoe Pound had said: “Historically, a profession has included 3 ideas: organization, a sense of learning and social service. These are essential. In addition, there is a need to earn a living. The idea is accompanying it (but not more important).”
In our country, people practicing law have a big role to play in maintaining the legal system in the society. While protecting private rights against unfair use of governance, a lawyer is required to keep in mind the principles of justice, fairness and equity. As we know, an advocate-client relationship is considered to be a relationship of trust and thus an advocate has an ethical duty towards his client. Issues related to confidentiality, conflict of interest, fees/charges, handling of important documents and cases etc. may arise between an advocate and a client (in the form of disputes).
After all, what happens when there is a dispute over fees between an advocate and his client, in such cases the client and the advocate do not trust each other. The result is that the lawyer closes the case until he receives his fees, while the client chooses to hire another lawyer or does not want to pay him the fees. In this article we will tell about such a problem.
The question is whether the advocate can refuse to return his court documents to the client if he does not receive the fees/fees, thereby obliging the client to pay for the return of his court documents. can do? In other words, does an advocate have the right to lien, that is, he can retain the court documents of his client until his fees/charges are paid by the client?
Who is an advocate?
An advocate is a person who practices law. Such a person may either be a paralegal, an advocate, barrister, attorney, counsellor, solicitor or a chartered legal executive. While working as a lawyer, a person involves the practical application of abstract legal rules and knowledge to solve many legal problems. Additionally, an advocate works to further the legal interests of those individuals who engage such advocate for their legal services. The role of a lawyer varies across case law jurisdictions, and hence a lawyer can only be defined in general terms.
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the Advocates Act , 1961
Chapter – II – Standards of Professional Conduct and Etiquette (Rules under Section 49 (1) (c) of the Act read with the Proviso thereto) Under Rules 28 and 29 of the BAR COUNCIL OF INDIA RULES , an advocate shall, as his fee, At the end of the case for which he was appointed as an advocate, the advocate can keep with him the money given by the client and the money taken during the case. This right is given under the rules of the Bar Council, but under the Act, he is not given any lien on the documents related to the case. We are aware that in India many illiterate persons also become parties to the case and they take the services of an advocate, at such a time, it may not be appropriate to charge the advocate for the fees quoted by him in relation to the case. Be allowed to keep the document with you. Any such lien, if granted, would open the way for exploitation of the client.
Here it is the duty of the advocate to return the documents to his client (at the end of the case or in case of change of advocate), then the client also has the right to take back the documents from his advocate, this then This becomes more necessary when the case is still pending in the court. This right of the client needs to be read as the corresponding equivalent of the professional duty of the advocate.
यह भी पढ़ें: पुलिस अधिनियम 1861
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Presumptive ‘misconduct’ has not been defined in Section 35 of the Advocates Act, 1961. This section uses the expression ‘misconduct, professional or otherwise’. The term misconduct is a broad term. It is necessary to understand it in the context of the subject matter. Its literal meaning is ‘wrong conduct’ or ‘improper conduct’.
In the case of In re A Solicitor ex parte the Law Society [(1912) 1 KB 302] Justice Charles Darling observed that: If it is shown that an advocate has done something in the course of his profession, What might appropriately be seen as disrespectful or dishonest is good professional behavior.
This definition was also accepted in the case of George Friar Graham v. Attorney General , Fiji (1936 PC 224) . In our case, if a client refuses to return his documents, the lawyer is considered guilty of misconduct under Section 35 of the Act. The same thing was decided in the case of RD Saxena.
the Indian Contract Act 1872?
Under Section 171 of the Indian Contract Act, High Court Advocates are permitted to retain any ‘Goods’ as security for the General Balance of Account. . For this usage, the meaning of ‘goods’ and ‘bailment’ should be understood. Under Section 2 (7) of the Sale of Goods Act 1930
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‘Goods’ means every kind of movable property other than enforceable rights and money and includes stock and shares, growing crops, grass and things attached to or forming part of the land which, before sale or under a contract of sale, are separated from the land; Have been scheduled to go, includes.
the Indian Contract Act , 1872,
“Consignment” is the delivery of goods by one person to another for any purpose on the contract that they shall be returned when that purpose is accomplished, or otherwise disposed of according to the directions of the person delivering. “
In the case of RD Saxena, the Supreme Court elaborated on these definitions and held that the ‘goods’ must be marketable in the market and the person to whom the ‘goods’ is given as security must be liable for the money. In return it is necessary to make the settlement in time. Records and case papers and files containing copies of original files cannot be treated as ‘goods’.
Finally in the case of P. Krishnamachari vs. Official Assignee Madras (AIR 1932 Madras 256) the Division Bench had held that an advocate cannot have such a lien unless he has an agreement with his opposite client . It may seem logical that if the client has refused to pay the advocate his stipulated fees, then the advocate should be allowed to take a lien on the client’s court files, but quite the contrary, the courts have held in many of their decisions. It is stated that even if the advocate fails to pay the fees/charges, the advocate has no right to retain the files of the client.
In this article, we have given you detailed information about whether a lawyer can refuse to return his documents if the client does not receive the fees. If you have any questions related to this article, So you can ask through comments, we will respect your response.