Do lawyers weigh litigants' purse more than the case brief? This is the unfortunate but real face of the legal profession today. Is it alright for a lawyer to demand a percentage from the outcome of a case? Would it not amount to misconduct and breach of professional ethics?
The judgement of the Supreme Court delivered on December 5, 2017, in the case of B Sunitha vs The State of Telangana & Anr, answered these fundamental questions and categorically declared that such a practice amounts to professional misconduct. This case has reignited the debate on the professional ethics practised by the Indian Bar and its repercussions on the overall administration of justice in the country. A reality check is essential to see the role of lawyers as equal partners in justice delivery and how their misconduct can be extremely damaging to society.
Contingent Fee Agreements
A strong legal foundation for the prohibition of 'contingent fee agreement' entered into by a lawyer is provided in Rule 20, Bar Council of India's 'Standards of Professional Conduct and Etiquette' (Bar Council of India Rules, 1975). This rule states that "An advocate shall not stipulate for a fee contingent on the results of litigation or agree to share the proceeds thereof." Such contingent free agreements are also unlawful by virtue of the operation of Section 23 of the Indian Contract Act, 1872, for being against professional ethics as well violating public policy. The core essence of this prohibition has been to guard the interest of those seeking justice against the abuse by a lawyer of his professional position.
Therefore, if a lawyer enters into an agreement to charge fees on percentage basis, a lawyer then doesn't remain 'professional' anymore. Instead, such an act would mean that the lawyer has become both personally and pecuniarily interested in the result of the litigation, thereby surrendering his position as an advocate and becoming a litigant in the garb of an advocate. The Supreme Court made this observation in 1954 in Registrar, High Court, Appellate Side, Bombay vs K L Gauba. Around the same time, in another case, the Supreme Court again declared that an act of an advocate to enter into a contingent fee agreement with a client cannot be lawful and would amount to professional misconduct and violation of public policy.
Claims for fees based on a percentage of the decretal amount is not only unethical but a clear example of a lawyer's greed for money. The increasing practice of charging exorbitant fees by the lawyers is a sophisticated act of extortion or terrorising a litigant by creating a fear psychosis that he or she would lose a case if a particular sum of legal fee is not paid. The money extracting tactics of the lawyers is doing grave disservice to clients, rather than any form of noble service to the community.
The Legal Practitioners' Act 1846, enacted during British India, provided legal practitioners a freedom to charge any fees for the professional services rendered by them, leaving barely any place for the poor to access the counsel for effective representation of his case. Even in today's context, the situation is more or less the same. That is, the Advocates Act 1961, presently in force, is silent on the issue of lawyers' fees but retains its focus on professional quality and discipline. A regulatory framework to check the astronomical fees charged by lawyers is absent. Also, there is no sign of legislative intent to evolve a law-based solution to this corrupt practice.
The recent judgement by the division bench of the Supreme Court in the case of B Sunitha vs The State of Telangana & Anr, must therefore not be ignored as a continuation of several observations made by the Supreme Court in so many cases since independence. The mere declaration of contingent fee agreements as unlawful will not close the chapter on this practice. It is not a regular case where decision on a conduct being lawful or unlawful would end the debate. It is about the sanctity of the legal professional, the abundant respect and confidence that lawyers enjoy in society.
When lawyers are regarded as equal partners in justice delivery, compromising professional conduct and ethics will have far reaching implications. In the case of Ministry of Information & Braodcasting, In re, (1995) 3 SCC 619, the Supreme Court had cautioned the legal practitioners about such consequences by observing that if people were to lose confidence in the profession on account of the deviant ways of some of its members, it is not only the profession which will suffer but also the administration of justice as a whole. This sad reality and a perception that lawyers never lose a case because they control the litigant's brief as well as the purse must change.
Whenever there has been a travesty of justice, the apex court of the country has stepped in to protect the fundamental rights and civil liberties of the common man. Even today, when legal practitioners are going astray and there is no law to set it right, we look up to the Supreme Court to regulate the behaviour and conduct of the Bar, and to remain the everlasting sentinel of justice, as it is most deservingly called.
(The writer is Assistant Professor, National Law University Odisha and Assistant Registrar, Research, Supreme Court of India)