It is a reasonable assumption to say that most people, even those not familiar with the play Henry VI, would agree with this line by Shakespeare: “The first thing we do, let’s kill all the lawyers.”
There are a lot of reasons to hate lawyers. One is that we write long-winded sentences like the one above. Then there is the pretty big one, that lawyers will represent people wanting to sue you, which is never nice. On top of which, they will in all likelihood be mean and nitpicky when doing so.
You may also hate them because of their insistence to be pedantic, insufferable know-it-alls, even if you are just discussing the merits of rajma chawal. Or you may dislike their penchant for, inter alia, unnecessarily shoehorning Latin maxims and other jargon into their speech.
When Lawyers Drop The Ball (Because They’re Terrible At Sports, BTW)
It is also a poorly guarded secret that lawyers, particularly in India, can often misuse legal procedure for their benefit. The famous taareekh pe taareekh pe taareekh scene from Damini is not just fiction.
Anybody who has had to face a lawyer getting a 500th adjournment because his grandmother has died for the 42nd time is apt to go full Sunny Deol. And it’s not just the other side, clients are very often duped by lawyers looking to stretch a case on so they can make more money.
Worst of all, despite their air of omniscience, many lawyers are just really bad at their job. Meaning they give terrible advice and make ridiculous mistakes. Meaning their client could lose their case, which could mean paying huge damages, going to jail, or getting thrown out of their home.
All extremely serious losses. They may also end up representing the other side in the same matter (like one Attorney-General), and coincidence, coincidence, you could suffer losses for this reason as well.
Wait, Can’t You Sue Them?
But how often do you hear about a lawyer being sued by his client?
In India, never, really. In the US, malpractice suits are not rare. Claims for professional negligence have been raised against law firms in the UK as well, which I have seen from personal experience affect the approach of a firm towards their advice and responsibilities.
But in India, lawyers have thus far escaped any embarrassing consequences for messing up. That does not, however, mean that lawyers cannot be held accountable by their clients in India. There are two ways in which this can be done.
Totally Great Option 1 – Suing Your Lawyer in Court for Professional Negligence
First, a client can sue their lawyer in court under the law of torts. Torts are what are argued when someone generally says they’re going to sue you – they are not based on legislation, but common law. The tort most relevant for a client is a claim for professional negligence.
Lawyers are considered professionals and have a duty of care towards clients. This means they have to do their best to win their case, must not commit basic errors like file the wrong documents, and have to ensure that any advice provided to a client is not wrong in law.
You might think that this should be easy for a person who has spent years studying the law and then practicing it. And yet, the Company Law Board has previously fined Amarchand Mangaldas (as it was then), the biggest law firm in India, for making some pretty basic mistakes with routine affidavits filed before it. Thanks to their quick response and the low fines/costs, they were not sued.
But with mistakes like this rife, clients have a good case to file for professional negligence, if the mistakes lead to an adverse ruling from a court.
Totally Great Option 2 – Filing Complaints with Bar Councils
Torts are all very well, but to argue them, you would need to utilise the services of *drum roll* a lawyer. When you’re angry enough with a lawyer to want to take them to task, the last thing you’re going to want is to have to deal with another lawyer. And even if you are ok with this, the other last thing you want to do is go to court and spend your remaining years haggling in a lawyer’s playground.
If a complaint is made and the subsequent investigation by the relevant bar council finds it accurate, a lawyer can be disbarred, suspended and… that’s about it. If the matter has to be argued before the disciplinary committee, costs can be imposed, but there will be no fine. And on top of that, the documents to be filed and general procedures for such a complaint are pretty much the same as what needs to be done in a court case.
Totally Understandable Reaction: Errr, Is That It?
It’s probably pretty clear to anyone reading this that the current options for you to get redressal from your lawyer for messing up a case are pretty rubbish.
You should be able to successfully argue professional negligence if you’re willing to accept the snail’s pace of court litigation. You should be able to successfully argue that your lawyer shouldn’t be allowed to practice anymore, if you’re willing to forego any compensation for their misconduct.
This is probably why we don’t really see lawyers get sued by their clients in India.
The need for this state of affairs to change has been recognised by the Law Commission of India as well, earlier this year.
The 266th Report of the Law Commission of India found that there was an urgent need to review the regulatory mechanisms in the Advocates Act. The Law Commission even submitted a draft amendment bill for this, which proposed significant changes like fines of INR 3-5 lakhs for cases where a client complained of misconduct.
Of course, the Bar Council of India and various local bar associations threw fits over the proposed changes, which, as a result, have not yet been made. One can hope that eventually these changes or other changes with similar effect are made, and litigants actually have a way to hold their lawyers to account.
Though it should also be remembered that even if you could actually win your case against your lawyer, they could still not face any real consequences if they’ve taken out professional indemnity insurance (as all major firms in India at least do). So basically, as in all arguments, the lawyer always wins.
(This admission season, The Quint got experts from CollegeDekho.com on board to answer all your college-related queries. Send us your questions at eduqueries@thequint.com.)