The way forward on regulation: Dealing with poor legal service
Aju John
What can a consumer of legal services in India do if she is disappointed with the level of service provided? There seems to be general agreement: very little, I’m afraid. Not much can be done if a lawyer does not handle a brief with reasonable proficiency. Trideep Pais, a New Delhi-based lawyer who has practiced in the capital for over ten years underlined the client’s powerlessness. He says, “I know of no instances where the bar council has helped redress the grievances of consumers of legal services.”
Professional misconduct versus inadequate professional services
There is a complaints procedure under the Advocates Act and the Bar Council of India Rules, a system which according to Trideep, “is oppressive and calculated to tire out the complainant.” He has a point. The Secretary of the State Bar Council needs to find a complaint to be ‘in order’ before it is registered and placed before the Bar Council. The complaint can therefore be thrown out without as much as a notice to the lawyer against whom it has been raised and “such a procedure certainly does not inspire confidence.” Chakrapani Misra, a partner at Khaitan & Co. and Suruchi Rungta, an associate at the same firm, are more optimistic. They feel that the disciplinary rules “ are a fair mix of checks and balances to maintain a healthy system whereby a lawyer provides the client with the best possible service” while ensuring that the client is not empowered to unnecessarily harass the lawyer. There are instances where a lawyer has been permanently debarred from practicing law and costs have been imposed on him for fraudulently selling off the client’s property and misappropriating the sale proceeds for personal gains or where action has been taken against lawyers for harassing a witness and indulging in subterfuge.” An Indian Express report recently quoted the chairman of the Bar Council of India who said that there around 500 appeals pending from all over India ”.
However, the recent events at the Madras High Court which saw the Bar Council of India and the state bar council of Tamil Nadu pass the ball amongst them while courts were suspended amidst violence, cast doubt on the efficacy of any disciplinary proceedings.
Unfortunately, even if the complaints procedure is rigorously applied, and conducted with the best of intentions and the interests of the aggrieved client in mind, it might not be useful against an incompetent lawyer. W hat if a lawyer does not turn up for an important hearing as a result of which the client’s matter receives a major setback? What if a lawyer has not acquainted herself with clearly applicable Supreme Court judgments on the issue? What if an Advocate-on-Record did not interview his client properly and therefore did not communicate all relevant facts to the Senior Advocate he was briefing? What if a trial lawyer does not communicate relevant dates to her client?
Chapter V of the Advocates Act describes the punishment of advocates for misconduct (s. 35). However, the entire disciplinary architecture (fleshed out further in Chapter VII of the Bar Council of India Rules) seems to be aimed only at ‘professional or other misconduct’. The term ‘disciplinary’ that frequently crops up in a reading of the relevant provisions of the Act and the rules seems to indicate that deficient legal services fall outside the ambit of these provisions. Explains Gopal Shankaranarayanan, a New Delhi-based counsel, “instances like strikes, taking money from the opposite side, violence, extortion, etc., will be covered by this. But can a client agitate his grievance regarding the way his matter was handled? No.” What is more, while there is provision for award of costs of the proceeding, compensation for the complainant has not been contemplated.
This is not strange. Traditional self-regulation of the legal profession focused on discovering and sanctioning failures of character, such as dishonesty, breach of trust account rules (including lawyer misappropriation of client funds) and other fiduciary duties (particularly conflicts of interests). Just like the powers of state bar councils and the Bar Council of India, the only questions handled by the discipline and grievance committees of the New York State Bar Association are those of ‘ethical conduct’. Even at the State Bar of California, a complaint needs to involve some ‘ethical violation’ in order to be entertained. The main sanctions that can be imposed by all three entities are, expulsion of the lawyer from the profession, or suspension from practice, and monetary fines.
Even assuming that we have the test of the reasonable professional applied to lawyers, in a system where adjournments are routine and lackadaisical preparation of cases is often excused, the test of the reasonable professional will be dilute. Lawyers need to be made accountable (1) for services provided to consumers (clients) and (2) for their duty towards assisting courts as officers of the court. The latter ensures that the judicial system improves so the standards required in the former are high. Enforcing them is not contrary to the idea that they are officers of the court. It even supports it.
