Right to justice is one of the fundamental rights and one of the primary rights of any individual. The Preamble to the Constitution of India guarantees to all citizens, social, economic and political justice. One of the prime objectives of the Indian Judicial system is to ensure that justice is given to all. The most important players of this system among others are the Judges and advocates; one who decides and one who helps the people to get justice. Advocates, in addition to being independent professionals, are also officers of the Courts and play a vital role in the administration of justice. Accordingly, the set of rules that govern their professional conduct arises out of the duty that they owe to the Court, their clients, their opponents and fellow advocates.[i]
The professional standards that an advocate needs to maintain are mentioned in Chapter II, Part VI of the Bar Council of India Rules. These rules have been placed under Section 49(1)(c) of the Advocates Act, 1961. Under Rules on ‘An Advocate’s duty Towards the Client’ following practices are mentioned:
- An advocate is bound to accept briefs
- An advocate should not to withdraw from service
- An advocate should not appear in matters where he himself is a witness
- An advocate must make full and frank disclosure to client
- A advocate must uphold interest of the client
- An advocate should not suppress material or evidence
- An advocate should not disclose the communications between client and himself
- An advocate should not be a party to stir up or instigate litigation.
- An advocate should not act on the instructions of any person other than his client or the client’s authorised agent.
- An advocate should not charge depending on the success of the litigation
- An advocate should not receive interest in actionable claim
- An advocate should not bid or purchase or transfer property arising out of legal proceeding
- An advocate should not adjust fees against personal liability
- An advocate should not misuse or take advantage of the confidence reposed in him by his client.
- An advocate should keep proper accounts and not divert money from accounts
- An advocate should intimate the client on amounts
- An advocate should adjust fees after termination of proceedings
- An advocate should provide copy of accounts
- An advocate should not enter into arrangements whereby funds in his hands are converted into loans.
- An advocate should not lend money to his client
- An advocate should not appear for the opposite parties
If an advocate fails to fulfil any of the duties towards his/her client or the performance of the advocate is not satisfactory to the client, the client can at any point of time prior to the ending of the case, change his pleader for any reason. The client can take such a decision for whatever reason; because even though the client hired the services of a professional, he/she is still ultimately responsible for his/her own legal affairs. If there is reason to believe that, there is a problem one needs to speak up and take responsibility for fixing it.[ii]
This absolute right remains even if the advocate has rendered valuable services or the client owes the advocate his fees. Although a client does not need to have a reason, common circumstances for changing an advocate include[iii]:
- An advocate’s conflict of interest
- Differing case strategies or personality conflicts
- A change in the pleadings or parties of the case
- A change of the Court hearing the case
- Expanded legal needs which the advocate fails to fulfil
When an advocate is appointed by a client for a certain case under Order 4 of Civil Procedure Code, 1908 the pleader has to file to the Court a duly signed written document by the client, which is termed as a Vakalatnama. In case a client is not satisfied with the lawyer, then first, the client should discuss it with the lawyer, and resolve the issue amicably. If it is not resolved then he might ask for a No Objection Certificate (NOC) on the Vakalatnama or on other documents related to the case. This is an easier way. But in case the advocate does not agree to give a NOC, then the person can issue a notice of termination to the advocate and apply to the court for withdrawal of Vakalatnama. Order 3 of Civil Procedure Code gives aggrieved persons the right to choose one’s pleader. Therefore changing of pleader with the leave of the Court is possible. The new pleader should submit a duly signed Vakalatnama to the court. Hence it is possible to change one’s pleader. In a few cases problem arises with the case history. If the pleader fails to give it to the client, the client can apply for the order sheet by an application to the Court.
Though right to justice is guaranteed by the Indian Constitution; way to justice is to be made by the person seeking justice. Hence, although the pleader is going to appear before the court the full responsibility rests on the instituting or defending the suit or criminal proceeding. Therefore, if the appointed attorney is not fulfilling the purpose then the client can at any
By Shruti Das