It is common knowledge that litigants often wish to change their advocate for various reasons but sometimes the outgoing advocate does not hand over the litigation files to the client on the pretext of outstanding professional dues on the belief that advocate has a lien on the litigation files for his fees.
In this context, it is pertinent that the Apex Court had long back in R.D. Saxena vs Balram Prasad AIR 2000 SC 2912 dealt with the issue whether an advocate had a lien for his fees on the litigation papers entrusted to him by his client. In this case the Bar Council of India had imposed punishment on a delinquent advocate debarring him from practicing for a period of 18 months and had fined him besides directing the said advocate to return all the case bundles which he got from his client without any delay.
The brief facts that the appellant was a practicing advocate at Bhopal and was appointed as legal advisor to the Madhya Pradesh State Co- operative Bank Ltd. in 1990 for a long period and he used to conduct cases in which the Bank was a party. In July 1993 the Bank terminated the retainership of the appellant and requested him to return all the case files relating to the Bank. Instead of returning the files the appellant forwarded a consolidated bill to the Bank amounting to Rs.97,100/- as the balance payable by the Bank towards the legal remuneration and also informed the Bank that the files would be returned only after payment of his dues. The Bank disclaimed any liability outstanding against them towards the appellant. The bank ardently needed files for contesting the pending proceedings before the courts/tribunals and was constrained to file complaint before the M P State Bar Council alleging the Advocate guilty of professional misconduct by not returning the files to his client. However, the Advocate claimed that he has a right to retain such files by exercising his right of lien and offered to return the files as soon as payment is made to him. The State Bar Council kept the matter pending so the matter was forwarded to the Disciplinary Committee of the Bar Council of India which held the Advocate guilty of professional misconduct against which the advocate filed appeal before the Apex under Section 38 of the Advocates Act, 1961.
The Apex Court rejected the argument of the appellant that Section 171 of the Indian Contract Act is applicable in case of Advocates where goods could be retained as security holding that Files containing original documents/copies of the records cannot be equated with the goods referred to in the said section 171. The advocate keeping the files cannot amount to goods bailed. The Court held that litigation records/files in the hands of the advocate there is neither delivery of goods nor any contract that they shall be returned or otherwise disposed of and section 171 of the Contract Act has no applicability in such cases
The Court referred to the Advocates Act 1961 and the Bar Council of India Rules as empowered by the Advocates Act. Such Rules contain provision specifically prohibiting an advocate from adjusting the fees payable to him by a client against his own personal liability to the client. As a rule an Advocate shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client. Rules 28 and 29 which are extracted below:
28. After the termination of the proceeding, the Advocate shall be at liberty to appropriate towards the settled fee due to him, any sum remaining unexpended out of the amount paid or sent to him for expenses, or any amount that has come into his hands in that proceeding.
29. Where the fee has been left unsettled, the Advocate shall be entitled to deduct, out of any moneys of the client remaining in his hands, at the termination of the proceeding for which he had been engaged, the fee payable under the rules of the Court, in force for the time being, or by then settled and the balance, if any, shall be refunded to the client.
The Court rejected the theory of lien on the litigation files kept with the Advocate & held thus:
“In the conditions prevailing in India with lots of illiterate people among the litigant public it may not be advisable also to permit the counsel to retain the case bundle for the fees claimed by him. Any such lien if permitted would become susceptible to great abuses and exploitation.
There is yet another reason which dissuades us from giving approval to any such lien. We are sure that nobody would dispute the proposition that the cause in a court/tribunal is far more important for all concerned than the right of the legal practitioner for his remuneration in respect of the services rendered for espousing the cause on behalf of the litigant. If a need arises for the litigant to change his counsel pendente lite, that which is more important should have its even course flowed unimpeded. Retention of records for the unpaid remuneration of the advocate would impede such course and the cause pending judicial disposal would be badly impaired. If a medical practitioner is allowed a legal right to withhold the papers relating to the treatment of his patient which he thus far administered to him for securing the unpaid bill, that would lead to dangerous consequences for the uncured patient who is wanting to change his doctor. Perhaps the said illustration may be an over-statement as a necessary corollary for approving the lien claimed by the legal practitioner. Yet the illustration is not too far-fetched. No professional can be given the right to withhold the returnable records relating to the work done by him with his clients matter on the strength of any claim for unpaid remuneration. The alternative is that the professional concerned can resort to other legal remedies for such unpaid remuneration.”
The Court in clear terms held that litigant can change his advocate if he feels his advocate is not capable of pleading his case efficiently and observed thus:
“A litigant must have the freedom to change his advocate when he feels that the advocate engaged by him is not capable of espousing his cause efficiently or that his conduct is prejudicial to the interest involved in the lis, or for any other reason. For whatever reason, if a client does not want to continue the engagement of a particular advocate it would be a professional requirement consistent with the dignity of the profession that he should return the brief to the client. It is time to hold that such obligation is not only a legal duty but a moral imperative.
In civil cases, the appointment of an advocate by a party would be deemed to be in force until it is determined with the leave of the court, (vide order 3, Rule 4(1) of the Code of Civil Procedure). In criminal cases, every person accused of an offence has the right to consult and be defended by a legal practitioner of his choice which is now made a fundamental right under Article 22(1) of the Constitution. The said right is absolute in itself and it does not depend on other laws. In this context reference can be made to the decision of this Court in State of Madhya Pradesh vs. Shobharam and ors. (AIR 1966 SC 1910). The words of his choice in Article 22(1) indicate that the right of the accused to change an advocate whom he once engaged in the same case, cannot be whittled down by that advocate by withholding the case bundle on the premise that he has to get the fees for the services already rendered to the client.
If a party terminates the engagement of an advocate before the culmination of the proceedings that party must have the entire file with him to engage another advocate. But if the advocate who is changed midway adopts the stand that he would not return the file until the fees claimed by him is paid, the situation perhaps may turn to dangerous proportion. There may be cases when a party has no resource to pay the huge amount claimed by the advocate as his remuneration. A party in a litigation may have a version that he has already paid the legitimate fee to the advocate. At any rate if the litigation is pending the party has the right to get the papers from the advocate whom he has changed so that the new counsel can be briefed by him effectively. In either case it is impermissible for the erstwhile counsel to retain the case bundle on the premise that fees is yet to be paid.
Even if there is no lien on the litigation papers of his client an advocate is not without remedies to realise the fee which he is legitimately entitled to. But if he has a duty to return the files to his client on being discharged the litigant too has a right to have the files returned to him, more so when the remaining part of the lis has to be fought in the court. This right of the litigant is to be read as the corresponding counterpart of the professional duty of the advocate.”
The Court categorically held that the refusal to return the files to the client when he demanded the same amounted to misconduct under Section 35 of the Act and held the advocate liable to punishment for such misconduct.
However, the Court in the circumstances of the case reprimanded the Advocate and did not inflict a harsh punishment as there was no authoritative pronouncement of the Apex Court quantum of punishment on the question whether advocate has a lien on the files for his fees and also because the appellant bona fide believed, in the light of decisions of certain High Courts, that he did have a lien.
The Court gave a warning to the erring advocates thus:
” However, we make it clear that if any advocate commits this type of professional misconduct in future he would be liable to such quantum of punishment as the Bar Council will determine and the lesser punishment imposed now need not be counted as a precedent.”