Citation

2000 ( 8 ) SRJ 113

Bench

K.K. Thomas

Facts of the case

The appellant joined the Madhya Pradesh State Co-operative Bank Ltd. (referred as ‘Bank’) as a legal advisor in 1990. He used to represent the bank in court issues. Following that, on 17.7.1993, the bank terminated the appellant’s retainers and requested that he return all the bank’s data. Instead of returning the files, he informed the bank that he would do so only after the bank’s dues of Rs. 97,100/- were paid.

As a result, on 3.2.1994 the Bank filed a complaint with the Madhya Pradesh State Bar Council, in which the appellant claimed that he had a right of lien on the papers, while the respondent claimed that the appellant had committed professional misconduct by not releasing the data to his client.

The matter was then referred to the Bar Council of India’s disciplinary committee, where the appellant was found guilty of professional misconduct and fined Rs 1000/-, as well as being barred from practising for 18 months and ordered to return all the client’s case bundles without delay.

Issues

Is it possible for the advocate to have a lien on the litigation papers that his clients have entrusted to him for pending fees?

Rule of Law

The bailment is defined by Section 148 of the Contract Act, which states that if goods are transferred from one person to another for a specific purpose, and the goods must be returned to; or otherwise disposed of according to the directions of the person who delivered them, then the transfer is a bailment. However, the items were not bailed to the appellant/advocate in this case because the products were not delivered, and the advocate owned paper on his account. Since the case files in this case cannot be sold or converted into cash, section 171 does not apply, hence the objects protected by it must be marketable, or saleable.

In the case of P. Krishnamachariar Vs. The Official Assignee of Madras, a divisional bench of the Madras High Court held that an advocate could not have such a lien unless there was an express agreement to the contrary; and the Patna High Court held the same view in the case of RD SAXENA Vs BALRAM PRASAD.

Application of the law

As India has a large illiterate population, requiring them to have a lien on the litigation files will result in their exploitation. When the files are returned, the litigant should exercise their right to switch attorneys.. According to Article 22(1) of the Indian Constitution, the criminal accused has a fundamental right of choice, and in the case of State of Madhya Pradesh v. Shobharam & Ors, the court stated that the choice thus referred to is the choice to change the attorney representing him in the same case. The client must receive the file back from the advocate.

The refusal of an advocate to return the client’s file falls under the purview of Section 35 of the Advocates Act, and thus constitutes professional misconduct. As a result, he faces the same sentence. However, in this case, the appellant had a reasonable assumption that he did have a lien, and this presumption is relevant to limiting the severity of the appellant’s penalty.

Conclusion

In this case, the court ruled that the Punishment will be altered to reprimanding the appellant. However, the Bar Council will decide on the appropriate punishment if someone engages in this kind of professional misconduct again, and the reduced penalty in this instance shouldn't be interpreted as precedent. The Supreme Court’s ruling is cautious in nature, and it overturns all relevant laws and precedents. The client-counsel connection is built on trust, which implies a fiduciary relationship; as a result, the relationship should be respected throughout its duration. Ordinarily, a prior agreement between the council and the client is assumed, in which it is specified that the client will pay a set amount as legitimate fees, which will assist counsel in addressing future problems. An example for the same can be that suppose a person is hospitalized; and the same person has to be shifted to any other hospital due to lack of facility in the former hospital. As a result, it would not be appropriate for the hospital to place a lien on such medical report until the dues are paid; until then, the later hospital should review the prior reports for future medicine; the same process will apply to the attorney’s lien. One cannot manipulate the court system by possessing such a lien. Considering the difficulties that attorneys face in obtaining payment, the Advocates Act of 1961 establishes a right for advocates to keep any property entrusted to them, as defined by Rules 28 and 29. The attorney’s rights were given teeth by this rule. There is a requirement of possession for the start of a lien, which must occur in the case of bailment. A transfer of goods is required for a bailment; however, a lien on a case file is not considered a good because it lacks marketability in the legal sense. One cannot sell a client's case files to another client for marketability reasons.

As a result, it will be seen as illegal in the eyes of the law, resulting in professional misconduct.