Change of counsel during legal proceeding in a civil suit

By Ankit Kumar 13 Minutes Read

INTRODUCTION

The relationship between a client and counsel is fiduciary one. While, the advocates should adhere to protect the interests, privileges and rights of their client, in return client has obligations to pay their fee on time and thus it constitutes a complementary relationship between them. However, this complementary relation becomes controversial when a counsel is changed by a client without his consent.

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 under Order 3 Rule 4(1) of the Code of the Civil Procedure. In criminal cases, every person 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.[1]

Thus, in both cases client has an upper hand. Client on his impulse change the advocates at any time but when the same behavior is opted by a counsel, it is considered as professional misconduct. On top of that the alarming question is whether in such cases they are entitled to fees and what are protection available to them.

APPOINTMENT OF A PLEADER IN A CIVIL SUIT

• Section 2(15) of the Civil Procedure Code (hereafter ‘Code’) defines “pleader” as any person who entitled to appear and plead for another in Court, and includes an advocate, a vakil and an attorney of a High Court. Order III, Rule 4 of the Code provides the procedure for the appointment of a pleader in a Civil Suit. To appoint a pleader under this rule that person has to sign a document in writing, which is also known as Vakalatnama.
• According to Section 2(u) of the Advocates’ Welfare Fund Act, 2001, Vakalatnama empowers an advocate to appear or plead before any court, tribunal or other authority and it includes memorandum of appearance or any other document having same effect. It can be either signed by such person appointing the pleader or by his recognized agent or by some other person duly authorised by or under power of attorney to make such appointment under Rule 4(1).  
• However, with respect to government counsel appearing on behalf of the government, the apex Court in the case of Deputy Collector Northern Sub-division v. Comunidade of Bambolim,[2]held that there is need for the Counsel of State to file Vakalatnama under Order 3, rule 1 CPC. The Court made its observation that state acts through counsel for state and he is entitled to represent the state in all proceedings initiated in court and memo of appearance by counsel for state would be sufficient.
• The memorandum of appearance as per the provisions of Order 3, rule 4(5) includes the name of the parties to the suit; the name of the party for whom the pleader is going to appear, and the name of the person by whom he is authorizedrule to appear.

EFFECT OF APPOINTMENT

• In civil cases, the appointment of an advocate under Order III, Rule 4(1) would be deemed to be in effect until it is determined by the leave of the Court. Under the Code, the effect of such appointment is subject to Order III, Rule 4(2) of the Code. Every appointment under Rule 4(1) shall be filed in Court and deemed to be in force until:
• Determined with the leave of the Court by a writing signed by the Client or the pleader, as the case may be, and filed in Court; or,
• The client or pleader dies; or,
• Until all proceedings in the suits ended so far as regards the client.

• Further, Rule 4(5) mandates the filing of memorandum of appearance by a pleader in the Court for the purpose of pleading. The memorandum of appearance stating-
• The names of the parties to the suit,
• The name of the party foe whom he appears, and
• The name of the person by whom is authorized to appear.
• Thus, a pleader derives his authority from the client and acts as the agent of the client and that is why he is required to file a Vakalatnama duly signed by the client. The power to “plead” would include within its scope and ambit, the right to examine witness seek adjournments, address arguments, etc.[3]

PROVISION TO CHANGE AN ADVOCATE

• 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.[4] Although it completely depends on the facts that what is prejudicial to the interest of client, but non-compliance with the advocates’ duty towards his client sets by BCI can be considered as detrimental to the interest of the client.
• Bar Council of India sets certain Standards of Professional Conduct and Etiquette under Section 49(1)(c) of the Advocates Act, 1961 and non-compliance of which amount to professional misconduct under Section 35 of the said act. Under this Standards of Professional Conduct and Etiquette the advocates have certain duty towards the court, his client, opponent and to the colleagues.
• The Advocates’ duty towards the client are:
• Bound to serve the client-

An advocate shall not ordinarily withdraw from his engagement, once accepted. He can withdraw only if he has a sufficient cause and a reasonable and sufficient notice is given to the client. Upon his withdrawal, he shall refund such part of the fee as has not been earned.

1. To uphold the interests of client-

It should be the duty of an advocate to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences. He should defend a person accused of a crime regardless of his opinion as to the guilt of the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence. This is also in consonance with the concept, “innocent until proven guilty”.

1. Non-disclosure of Communications-

An advocate should not by any means, directly or indirectly disclose the communications made between him and his client. Further, he shall not act on the instructions of any person other than his client or his authorized agent. However he is liable to disclose the it if there is an illegal purpose or showing a illegal purpose or showing a crime or fraud after commencement of his employment under Section 126 of the Indian evidence Act, 1872.

1. Settlement of the fees-

Stipulation of for a fee contingent on the results of litigation or agree to share the proceeds thereof is against their professional etiquette. He should keep the accounts of the client’s money entrusted to him, and the accounts should show the amounts received from the client or on his behalf, the expenses incurred for him and the debits made on account of fees. He can not use these amounts for his personal liabilities.

• Anything contrary to this will be considered as professional misconduct and detrimental to the interest of the clients. As mentioned above Order III of the Code of Civil Procedure gives the client the right to chose one’s pleader. If the pleader determined the interest of client he can be discharge by the leave of the court under Rule 4(2) of Order III. As held in Dr. Hari Nandan Singh v. U.P. Higher Education Services Commission, No counsel will withdraw from a case except by leave or permission of the court.[5]

SETTLEMENT OF THE FEES

• What is the most conflicting point here is that how much the amount need to be paid to the counsel if he was removed from the case and amount has not been stipulated. This is settled by the Allahabad High Court in the case of Dr. Hari Nandan Singh v. U.P. Higher Education Services Commission with the application of well-known legal principle, the principle of quantum meruit.
• The principle of quantum meruit emphasises that a reasonable sum of money to be paid for service rendered or work done when the amount done is not stipulated in a legally enforceable contract. The Court held that if the counsel’s instruction are unilaterally terminated at the initiative of the client, the counsel will be entitled to full fees and if the fees would not be settled earlier the Court will determine it on the principle of quantum meruit. However, if the counsel wants to abandon a client, he may seek a discharge from the court but he would not entitle to fees.

CONCLUSION

It is obvious that client possess a prerogative to change an advocate on his will. and opt for another advocate. However, the professional standards of an advocate bars them to enter into appearance in any case in which already a Vakalatnama or memo of appearance is filed by another except when the former was discharge by the leave of the Court. Further he is also entitled to fee for his services rendered if unilaterally changed by the client. Thus, Right to Choice of the litigant prevails over the Rights of the Counsel. He has no say on the will of the client has to step back on the instructions of the client.

[1] R.D Saxena v. Balram Prasad, AIR 2000 SC 2912.

[2] Deputy Collector Northern Sub-division v. Comunidade of Bambolim, AIR 1996 SC 148

[3] Berjesh Goyal & Anr. v. Daily Foods (India), AIR 2009 Delhi 118.

[4] R.D. Saxena v. Balram Prasad Sharma, AIR 2000 SC 2912.

[5] Dr. Hari Nandan Singh v. U.P. Higher Education Services Commission, 1992 ESC 311 (ALL)(DB).

Ankit Kumar