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Ethical Dilemma Of Lawyers During The Formation Of A Lawyer Client Relationship

One of the most important and significant part of a lawyer's professional life is the lawyer client relationship. Once engaged professional, the lawyers get bounded by ethical duties and observing these duties is an integral part of the rules governing the conduct of lawyers. Even though these duties have been addressed considerably but still certain difficulties are faced by lawyers when observing such duties due to the different interpretations of the literature and very little guidance is available in this matter.

We shall look over such issues arising at the very inception of the lawyer client relation. Thereafter a purview on how lawyers have difficulties in defining the extent to which they can take authority on behalf of a client who might be mentally impaired or in other cases a minor. And finally, we shall see the issues emerging during the discharge of this lawyer and client relation. To conclude we shall understand that lawyers must be sensitized for these issues to be well equipped to deal with the same situations.

Firstly, we shall understand what it means when we say, lawyer client relationship. It is when a client approaches a lawyer to seek his/her advice on legal matters or any case, and the lawyer agrees to do so for the client. Once established in this ration, a lawyer is bound by certain obligations and ethical duties that he/she must adhere to. These emerge out of the status and the nature of the relation between the client and the lawyer.

This means that some of the duties would be dictated by the nature of the contract with the client and others are based on the fiduciary nature i.e., trust between both. Observation of these is mandatory under the professional conduct rules laid down on lawyers. We shall now trace and understand the challenges that do arise from these rules. We shall mainly concentrate on issues arising from the nature of the contract between the client and the lawyer and not on issues pertaining to fiduciary nature i.e., "conflict of interest" or "confidentiality".

We shall initially see the issues that sprout from the formation of such relation, then the issues relating to conduct of authority in case of mentally impaired or minor clients and finally the issues suspending out of the termination of a lawyer client relation.

Ethical dilemma while forming of a lawyer-client relation
These start off in a very simple manner wherein a client requiring certain legal advice or guidance approaches a lawyer and explains his requirements, then they both reach an equal agreement, and a formal contract may be formed to deal with the issue. There are no set rules that govern how the employment of a lawyer is to be done. The Bar Council of India (BCI hereafter) does not state any preexisting rules for the formation of a lawyer client relation. BCI states in Rule 11:

"It is by rule which bounds the advocate to work and accept a brief in a court where he has proposed to practice at a consistent fees which is according to the brief he is undertaking. However, he may elect to refuse to do so only under special circumstances."

So, accordingly this means that a lawyer should accept an agreement based on a certain fee that he/she charges for that specific type of legal service. This is how usually a lawyer client relation is formed. Therefore, even an oral agreement wherein a fee has been decided for a type of legal service can also establish a lawyer client relation.

So, does it mean that a lawyer is bound to accept each client that approaches him/her or is there any sort of limit to which they can accept or refuse a case? As per Rule 11 of the BCI[1], a lawyer can refuse a client under special circumstance but there is no reference which states what can be considered a "special circumstance". So, this is an issue which remains regarding the formation of a lawyer client relationship.

Now to seek a solution, the American Bar Association Model rules of professional conduct (2004)[2] can be used as a guide. It states that a lawyer can decline a client for providing legal services under a "good cause". So here, the term "good cause" is equitable to "special circumstance" of the BCI.

So, in case of "special circumstance" of the BCI, a lawyer might decline a client when:
  • Refusal to accept a client on grounds of lack of knowledge:
    Lawyer is unable to represent a client due to his own lack of knowledge of expertise on the topic. This can indeed be taken as a case of special circumstance wherein a lawyer unable to provide his advice due to lack of professional knowledge is the imminent situation. It is one of the duties of a lawyer to provide his/her client with representation while being fully equipped with the certain required skillsets in terms of knowledge, experience, and preparation regarding the case. In such cases wherein a lawyer is unfamiliar with the case or lacks the skill to represent the client in such a matter would account to the lawyer being able to decline the client for acceptance of his case. In this case BCI is negotiating a new rule i.e., Rule 4 wherein 'An Advocate may decline a specialist brief if he/she considers himself not competent to accept the brief.'
  • Refusal to accept a client on basis of the case becoming burdensome for the lawyer:
    Accepting the case might lead to cause burden to the lawyer so in such case where a lawyer feels or is under a situation wherein he/she might not be able to represent the client competitively due to their own lack of time due to commitments of various natures and also not being prepared for the case because of not being given enough preparation time. The new rule of the BCI that is being negotiated states i.e., Rule 8, 'It is on the prerogative of an advocate to decide to accept a brief only if they can attend to it. They should assess and refrain from acceptance of a particular brief in case of them not being available for the same owing to personal or other matters.'

    However, the current BCI rules do not give any sort of leeway and entitle the lawyers to accept the case even if it is outside their field of expertise requiring them to consult or even employ other lawyers having the required skillset for this case.
  • Refusal to accept a client on basis of conflict of interest or confidentiality:
    Rule 15 of BCI states, "An advocate must abide to his duties wherein he is required to uphold and work in best interests of the client, this must be done even if it causes some degree of unease to own. It is also his duty to work in defense of his client even if he has different opinions than his clients."
So in case of the lawyer having a conflict of interest regarding the views of his/her client should be considered legit grounds for refusal by the lawyer to accept a case. Otherwise, this would jeopardies the very essence of the lawyer client relation wherein they both differ on views about the very case they are engaging in.

The apex court observed regarding the same that,"It comes under the custom of professional ethics of court where no lawyer can refuse to accept a brief when payment is being provided by the client as per the stated fee and also taking into account that the lawyer is available. So, any institution cannot pass a statement saying they will not accept the case for any accused person who is under suspicion of being a terrorist, rapist etc. as this is against the constitution and the ethics of court." So, this decision has basically created a sort of challenge for the lawyers when in a situation wherein they must take up a case of an unpopular client or regarding an unpopular opinion.

Ethical dilemmas in case of authority of lawyers to make decision on behalf of clients
In case of the BCI, there is very limited information onto the extent to which a lawyer can take decisive actions for his/her client. This is in goodwill of the client as all matters must be presented as the client desires however, it is the decision and advising capability of a lawyer to present a case as he/she seems conducive. This creates a sort of barrier in cases wherein a lawyer may be required to take authoritative decisions for the client who are mentally impaired or in cases of the client being a minor. Hence to cater for the same, the supreme court stated in the case of Byram Pestonji Gariwala vs Union Bank of India[3],

"Only limited amount of authority has been given to lawyers when it comes to being able to settle the particular case for his client due to him only being an appointed counsel for his client. However, it has also been stated on occasions that it is important for a lawyer to act on such instances under circumstances which demand to do so."

This does entitle the lawyers to a limited authority over the decisive nature of the case. However, the final settlement of the case cannot be done by the lawyer until consent of the client is present.

And for cases of minors and mentally impaired clients, Section 46 of the Juvenile Justice (Care and Protection) Act, 2000 gives the statement,

"In cases of a juvenile or a child being the one who is brought to court, the ruling authority can and should give charge of the proceeding to any family member or guardian when they deem fit."

Hence it provides that a guardian or next friend may instruct the lawyer on behalf of the client and have authoritative powers on the case. However, under cases of criminal nature, it is the client who is the responsible authority and hence any advice on behalf of the client by the guardian or friend may be chosen to be ignored by the lawyer if deemed necessary.

Ethical dilemmas during the termination of a lawyer-client relation
It usually ends with the completion of the case that was given by the client to the lawyer. But it can also take place when a client discharges the lawyer from the case or in other instances a lawyer withdraws from the case on own accord. When termination of the relation does take place, the lawyer must return all the files, documents, substances related to the case which were entrusted to the lawyer by the client.

Also, the lawyer must provide the client with the statements relating to the fees and the amount of money of the client given to the lawyer, which might be unused by the lawyer for the completion of the case. However, there is an issue as to what documents must be returned to the client by the lawyer as these are not stated by the BCI in the rules of ethics.

However, regarding this matter it has been ruled by the supreme court that all documents relating to the case must be returned to the client. Now another issue had risen that what if the payment of the lawyer is not made by the client, can the lawyer in this case withhold these documents in exchange of the payment to be made by the client? In this matter the supreme court has ruled out in the case of R.D. Saxena v. Balaram Prasad Sharma[4], that:

"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."

It has also been decided by the apex court that a lawyer must withdraw themselves if a client asks so. A client can change their lawyer at any instance and is not required to give any reason for the same. As per the court:

"Any client who has employed any lawyer or advocate for his case must be given full freedom to change them whenever they think that the lawyer cannot present their case as they demand or that the lawyer is of a different opinion. They can choose to do so due to any other reason as well and herein this case the lawyer should respect the professional ethics of the court and give the brief back to the client."

Finally, it must always be adhered to that even after the termination of an agreement between a lawyer and a client, the lawyer must always uphold the confidentiality in matters of the case with the client and this ethical responsibility must always be respected as it can never be terminated once a lawyer client relation is culminated.

For a justice and law system to work at the peak of its ability, it is important and a need of the hour for all legal professionals to be fully dedicated towards their work and be well qualified to deal with situations arising in their field of expertise. They are the epitome of the legal system's framework and hence responsibility of upholding the name of the court lies on their shoulders as they are the officers of the legal court.

They need to be fully aware and ready to tackle and handle all sorts of situations that may be presented to the court. Each member of the court needs to be thorough with their duties to know the level of the official work they need to overlook. Therefore it must be made a practice for all lawyers to be guided through all these fundamental and professional issues that are part of the ethical values of court.

These values are important when dealing with clients and it is on basis of these that the lawyer client relationship is truly formed and governed. It provides leeway to the client as well as the lawyer to mould and ascertain certain actions so as to tackle situations are may come up during the course of the case. They need to be sensitised about the challenges and their solutions that can be adopted while staying within the boundary of rules laid down by the court.

This helps in making a lawyer professionally sound in his field of work. Only when these are clear and understood by all members of the law framework, the court can properly serve their clients in an efficient and effective manner. Challenges are part of any organisational workforce however what is more important is the fact that these are recognised by an association and then resolved in a professional manner.

  1. Part VI, Chapter II of the Bar Council of India Rules framed under the Advocates Act, 1961.
  2. Rule 6.1 of the American Bar Association Model Rules of Professional Conduct (2004).
  3. (1992) 1 S.C.C. 31.
  4. (2000) 7 S.C.C. 264
Written By: Devanshi Sharma, Final Year LL.B. (Hons.) - Jindal Global Law School, O.P. Jindal. Global University

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