Article

Ethical Dilemmas in the Asian Journal of Legal Education

7(1) 25–34, 2020
Lawyer–Client Relation: Concerns © 2019 The West Bengal National
University of Juridical Sciences
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DOI: 10.1177/2322005819893279
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Anirban Chakraborty1

Abstract
Lawyer–client relationship is the most important aspect of professional life of lawyers. When lawyers
enter into professional relation with their clients they become bound by several ethical and professional
duties. These duties are a mixture of status and contract emerging out of the nature of the relationship
governing lawyer and client. Observing these duties is indispensable under the rules governing standards
of professional conduct for lawyers. Lot has been written about these duties and the need to observe
them, but the untraded area in the literature remains some of the challenges that arise in course of
observing these duties due to some equally competing issues. The lawyers often face these challenges
in their professional life, but little guidance is available to address them effectively. In this context, the
aim of this article is to trace some of these competing issues and challenges and discuss the legal and
regulatory framework that help to address them. The article begins by exploring the issues that arise
at the very formation of the lawyer–client relationship. In the second part, the article examines the
issue of lawyer’s scope and authority to make decisions in legal transactions for their clients. Also it
covers the issues involving extent of lawyer’s authority to take decisions on behalf of mentally impaired
or minor clients. Finally, the article looks into the issues that come up during the discharge of the
lawyer–client relationship. The article concludes on the note that to ensure an effective and satisfactory
lawyer–client relation it is an imperative that lawyers are sensitized with these issues and the principles
they can look at for their resolution.

Introduction
On the morning of 8 May 2019, the entire legal fraternity of India wakes to learn in shock and mourn that
one of its great son Professor N.R. Madhava Menon has set on his heavenly journey renouncing this
world forever. It was an irreparable loss because rarely a great talent and persona like him is born. A
person coming from a very humble background, reached to the zenith of the Indian legal fraternity with
his sheer hard work, impeccable personal discipline and professional commitment. There is hardly any
field in Indian legal profession where he has not left a mark by his scholarship and contribution. He has
been a phenomenal law teacher, a serious academic scholar, a visionary administrator and reformist and

1
Maharashtra National Law University, Khapri, Nagpur, India.

Corresponding author:
Anirban Chakraborty, Maharashtra National Law University, Khapri, Nagpur, Maharashtra 441108, India.
E-mail: anir_chak@yahoo.com
26 Asian Journal of Legal Education 7(1)

a noteworthy leader in the field of continuing legal and judicial education. But of all the achievements
he commands, he will always be especially remembered for his contribution in the reform of Indian
Legal education. The highlight of his professional career came with his role in founding the National
Law Schools at Bangalore and Kolkata which today has received global admiration. As a law teacher he
has dedicated his life in improving the quality of the legal professionals in India. Till the day of his
demise, he has worked tirelessly to develop programmes which would provide opportunity and training
to law students and lawyers to improve their professional competence and quality. The author had a long
association with Prof. Menon and appreciates Asian Journal of Legal Education’s initiative to publish a
special issue dedicated in the memory of this celebrated personality. Availing this opportunity and to pay
personal tribute to this great law teacher this article contributes on a theme very dear to Prof. Menon,
professional responsibility of lawyers. The article addresses some fundamental issues involved in the
lawyer–client relationship.
A lawyer–client relationship may be established when a client approaches a lawyer for some legal
advice or service and the lawyer accepts to provide the same. But when a lawyer enters into a relation
with his client to provide his legal service, she becomes bound by several ethical and professional duties.
These ethical duties are a mixture of status and contract emerging out of the nature of the relationship
governing the lawyer and client. That is to say that some elements of this relationship are based on the
contractual relation that the lawyer is entering with his client to provide his legal service. Others are
based on his obligations emerging from the fiduciary relation that a lawyer has with his client and the
same cannot be entirely waived by the lawyer or his client. Observing these duties is indispensable under
the rules governing standards of professional conduct of lawyers. Lot has been written about these duties
and the need to observe them, but the untraded area in the literature remains some of the challenges that
arise in course of observing these duties due to some equally competing issues. The lawyers often face
these challenges in their professional life, but little guidance is available to address them effectively. This
article aims to trace the issues and challenges that arise in course of a lawyer–client relation by exploring
the rules governing the standards of professional responsibility. It also discusses the guidelines for
lawyers based on the existing legal and regulatory framework to resolve these challenges. The article
however does not intend to indulge into the issues arising from the fiduciary nature of the lawyer–client
relationship, for example, ‘conflict of interest’ and ‘confidentiality’. It only aims to address the range of
issues that emerges from the contractual nature of this relationship.
The article begins by exploring the issues that informs the very formation of the lawyer–client
relationship. It then examines the issues emerging in connection to decision-making in a case and with
special reference to mentally impaired or a minor client. Finally, it examines the issues in termination of
lawyer–client relationships and the duties of lawyers towards clients at the end of the lawyer–client
relationship. The article concludes by highlighting the importance of the knowledge of the rules that
governs these issues to ensure an effective and satisfactory relation between the lawyer and clients.

Ethical Dilemmas of Lawyers During the Formation of

The Lawyer–Client Relationship
Majority of lawyer–client relationships begin in a very straightforward manner. A client comes to a
lawyer’s office, explains about his legal issues or requirement, reaches an agreement and formally
engages the lawyer to deal with his legal issues. There are no mandatory rules that are required to be
completed with appointment of a lawyer. The existing Bar Council of India Rules governing ‘Standards
Chakraborty 27

of Professional Conduct and Etiquette’ for advocates in India1 (will be referred hereafter as BCI Rules)
does not specify any requirement for forming a lawyer–client relationship. Rule 11 of the BCI Rules
provides:

An advocate is bound to accept any brief in the Courts or Tribunals or before any other authorities in or before
which he proposes to practise at a fee consistent with his standing at the Bar and the nature of the case. Special
circumstances may justify his refusal to accept a particular brief.

According to this rule an advocate will accept engagement from a client for payment of an agreed
amount of fee consistent to the amount she charges for the nature of legal service to be provided. This is
generally the manner by which a lawyer–client relation will be established. There is no other requirement
to be fulfilled by the advocate. So an oral agreement concluded between a lawyer and client for providing
legal service in lieu of an agreed fee can establish a lawyer–client relation.
However, this rule gives rise to a question that whether a lawyer is under a general professional
obligation to accept every client who approaches him or a limited discretion is allowed to him to refuse
a case. According to Rule 11 of BCI Rules in a special circumstance a lawyer has discretion to not take
a case. But what amounts to a special circumstance is not defined in the rules. In circumstances where a
lawyer in India can decline to accept a case is an issue that remains open to interpretation. In this regard
the American Bar Association Model Rules of Professional Conduct (2004) can offer some guidelines.
American Bar Association Model Rules of Professional Conduct (2004) has a comparable provision.2
The said rule states that a lawyer can decline from accepting a case of client who has approached him for
his legal service for a ‘good cause’.3 Therefore, the term ‘good cause’ used in American Rule of
Professional Conduct can be considered as comparable to ‘special circumstances’ under the BCI Rules.
The term ‘good cause’ is explained as

If the lawyer could not handle the matter competently...or if undertaking the representation would result in an
improper conflict of interest, for example, when the client or the cause is so repugnant to the lawyer as to be
likely to impair the client–lawyer relationship or the lawyer’s ability to represent the client. A lawyer may also
seek to decline an appointment if acceptance would be unreasonably burdensome, for example, when it would
impose a financial sacrifice so great as to be unjust.

Accordingly, the probable interpretation of ‘special circumstances’ for a lawyer to decline a case under
the BCI Rules can be regarded as grounds (a) where a lawyer cannot offer competent representation due
to lack of his specialized skills or knowledge; (b) where acceptance of a case would be unreasonably
burdensome for the lawyer and (c) where representation would result in an improper conflict of interest.

Refusal to Accept a Case that Requires Knowledge of an Area of Law in Which a Lawyer
Has No Experience or Knowledge or Time
Rule 11 of BCI Rule states that a lawyer is bound to accept a case unless there is a special circumstance
which justifies her recusal for accepting a case. The issue that rises is whether a lawyer’s refusal of a case
on the ground that he cannot offer competent representation due to lack of his specialized skills or

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
  Comment 2 to Rule 6.1 of the American Bar Association Model Rules of Professional Conduct (2004).
28 Asian Journal of Legal Education 7(1)

knowledge can be justified as special circumstance. It is a duty of a lawyer to provide competent

representation to a client. According to various authorities a competent representation requires legal
knowledge, skill, thoroughness and preparation reasonably necessary for the representation.4 A lawyer
may not possess the required necessary special training or prior experience to handle legal problems of
a particular type with which the lawyer is unfamiliar. To competently manage a case by a lawyer what is
required is having strong grip over some fundamental skills, such as the analysis of precedent, the
evaluation of evidence and legal drafting. The most fundamental legal skill consists of determining what
kind of legal problems a situation may involve, a skill that necessarily transcends any particular
specialized knowledge. According to the American Bar Association Model Rules Professional Conduct
(2004) in Rule 1.1 a lawyer is permitted to refuse to take a case in an unfamiliar field if the lawyer lacks
‘thoroughness and preparation reasonably necessary for the representation.’ Further to resolve this
ethical dilemma of lawyers the BCI is negotiating a new code of ethics5 suitable to contemporary era,
states in its Rule 4 that ‘An Advocate may decline a specialist brief if he/she considers himself not
competent to accept the brief.’

Refusal to Accept Case Because It will be Unreasonably Burdensome for Lawyer

Due to His Lack of Time
Another important issue that looms large is whether a lawyer can refuse a case as he cannot offer
competent representation because he lacks thoroughness and preparation as he cannot devote necessary
time. The American Bar Association Model Rules Professional Conduct (2004) in Rule 1.1 allows such
an excuse of lawyer. Similarly, Rule 8 of this new BCI code of ethics provides ‘An Advocate shall accept
only as many briefs as he/she is sure he/she can attend to, and shall refrain from accepting briefs in
which he/she is likely not to be available owing to his/her preoccupation in other matters.’ Thus an
inference of these rules state that an advocate may decline to accept a case on new field or an area he has
no experience. It also allows an advocate to refuse brief due to heavy workload and paucity of time.
These grounds may be justified as special circumstance to refuse a case.
But there is no such comparable provision in the existing BCI Rules therefore a lawyer requires
accepting a case in a totally new field or a specialized domain of practice and to meet requirements of
competent representation he has to engage along with another lawyer who has reputation of having
established competence in the particular field of practice. The BCI current rules are obliterating whether
a lawyer has competence to manage a particular type of case or lacks experience in specialized area of
practice. It also ignores the fact that whether a lawyer can compensate her inexperience or lack of
knowledge in particular field of law through study or affiliation with another lawyer. This is a cause for
undue hardship for both lawyer and client and requires more clear interpretation like its American
counterpart. A lawyer needs to be allowed to turn down a request for legal representation if she lacks
time, expertise, or interest in the matter. Rule 11 of the BCI Rules must be read as an exception to
lawyer’s duty to not decline a case if an Advocate lacks expertise or time to attend a case as a justified
refusal as ‘special circumstance’.

4
  The comments to Rule 1.1 of American Bar Association Model Rules of Professional Conduct (2004).
5
  Bar Council of India Draft Code of Ethics, http://www.barcouncilofindia.org/bci-seeking-viewssuggestions-on-the-draft-code-of-
ethics/
Chakraborty 29

Refusal of a Request for Legal Representation of Unpopular Clients or an Unpopular

Cause by a Lawyer on Account of Conflict of Interest
As per rule 11 of BCI Rules an advocate is bound to accept a brief for any client who has approached
him for legal assistance and is willing to pay him fees except when there are special circumstances that
can justify such refusal to accept the case. The understanding is that a lawyer cannot pick and choose his
clients. Furthermore, Rule 15 of the BCI Rules states

It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means
without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a
crime regardless of his personal 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.

But contrary to this, lawyers often make decisions to engage or not to engage for any particular client and
craft their practice domain based on their personal interest and aspirations. As a matter of general
prudence lawyers do use their discretion to choose to accept or decline a case. One of the acceptable
grounds of refusal to represent is where exists a conflict of interest. The BCI Rule 33 states ‘An advocate
who has, at any time, advised in connection with the institution of a suit, appeal or other matter or has
drawn pleadings, or acted for a party, shall not act, appear or plead for the opposite party.’ The term is
understood as a situation where representation does jeopardize a client’s interest or violates client’s right
of undivided loyalty of his lawyer. Where a lawyer can identify and analyse that such circumstances exist
which can lead to a conflict of interest the lawyer can withdraw from the case or refuse to represent.
But there is caveat to this in the rules of professional ethics and lawyers cannot pick and choose their
clients. An ethical issue that arises in light of this caveat is whether a lawyer is free to adopt a professional
decision to not represent an unpopular client or a cause which interferes her personal moral stand on
ground of conflict of interest. In the recent past in India advocates have passed resolution to not represent
Ajmal Kasav or Afjal Guru because her own personal biases may affect her ability to properly represent
the case. But according to Lord Denning ‘...No matter how great a rascal the man may be. No matter how
undeserving or unpopular his cause. The barrister must defend him to the end provide isd only that he is
paid a proper fee or in the case of a dock brief, a nominal fee.’6 The Supreme Court7 has fortified the
legal position about advocates’ responsibility to not refuse cases because the case or the client in
unpopular. In its judgement passed in 2011 dealing with the issue of Coimbatore Bar Association’s
resolution that no member of the Coimbatore Bar will defend the accused policemen in the criminal case
against them, the apex court observed

Professional ethics requires that a lawyer cannot refuse a brief, provided a client is willing to pay his fee, and the
lawyer is not otherwise engaged. Hence, the action of any Bar Association in passing such a resolution that none
of its members will appear for a particular accused, whether on the ground that he is a policeman or on the ground
that he is a suspected terrorist, rapist, mass murderer, etc. is against all norms of the Constitution, the Statute and
professional ethics. It is against the great traditions of the Bar which has always stood up for defending persons
accused for a crime. Such a resolution is, in fact, a disgrace to the legal community. We declare that all such
resolutions of Bar Associations in India are null and void and the right minded lawyers should ignore and defy
such resolutions if they want democracy and rule of law to be upheld in this country. It is the duty of a lawyer
to defend no matter what the consequences, and a lawyer who refuses to do so is not following the message of
the Gita.

6
  R. v. Worsley, (1967) 3 W.L.R 1666.
7
  A.S. Mohammed Rafi v. State of Tamil Nadu, (2011) 1 S.C.C. 688.
30 Asian Journal of Legal Education 7(1)

This decision of the Apex Court of India creates an embargo on lawyer’s decision to choose not to
represent an unpopular client or an unpopular cause in account of personal moral stand.

Ethical Dilemmas in Relation to Lawyers’ Authority to Make

Decisions for Clients
It is generally considered that lawyers are agents of the client and the client is bound by the action of his
lawyer. Commentaries on Professional Responsibility of lawyer–client control reflect that a tension
exists between the client and lawyer about the control and decision-making powers relating to the case
and its representation. Professor Nancy B. Rapoport mentions that

In the world of ‘who knows the most,’ the client (and the party on the other side) will always know the most about
the facts of the case; then comes her lawyer (and the lawyer on the other side);… Depending on the personalities
and skill levels of a client and her lawyer, there can be tension between how the lawyer wants to present the case
and how the client wants it presented.8

Although the rules governing professional responsibilities set out the division of authority between the
client and the lawyer, there is no clear line of demarcation.
The lawyer–client relationship is one of the oldest examples of an agency relationship. The agency
law for lawyers imposes the obligation of informed consent. The requirement is that a lawyer has an
affirmative duty to consult her client and a duty to advise her client ‘promptly any information which it
is important that the client receive’.9 The modern rules of professional responsibility have increased
emphasis on the importance of both and explanation of relevant information by creating a uniform
‘informed consent’ standard.10 A client’s agreement constitutes informed consent if a lawyer has
communicated adequate information and explanation about the reasonable course of action. However,
lawyers are provided with a limited exception where she can take decisions and act even without an
informed consent by the client. This limited authority is regarded as an appendage of the typical nature
of the client–lawyer relationship and is considered to be in the interests of the client, to give the fullest
beneficial effect to his appointment of the advocate.
According to Rule 1.2 of the American Bar Association Model Rules Professional Conduct (2004)
‘...a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as
required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. But
Rule 1.2 allows a lawyer a limited ‘implied authority’ and states that ‘A lawyer may take such action on
behalf of the client as is impliedly authorized to carry out the representation.’

8
  Nancy B. Rapoport, The Client Who Did Too Much, 47 Akron L. Rev. 121–33 (2014).
9
  Baker v. Humphery, 101 U.S. 494 (1879).
10
  Rule 14 of the BCI Rules

An advocate shall at the commencement of his engagement and during the continuance thereof, make all such full and frank
disclosure to his client relating to his connection with the parties and any interest in or about the controversy as are likely to
affect his client’s judgement in either engaging him or continuing the engagement.
Chakraborty 31

Similarly, English law recognizes the principle that by appointing an advocate to conduct her case the
client gives an ‘implied authority’ to adopt such actions that is necessary for conducting her case.
According to Halsbury’s Laws of England11

...at the trial of an action, counsel’s authority extends when it is not expressly limited, to the action and all matters
incidental to it and to the conduct of the trial, such as withdrawing the record, challenging a juror, calling or not
calling witnesses, cross-examining or not cross-examining witnesses, consenting to a reference to arbitration, a
compromise, or a verdict, undertaking to appear, or, on the hearing of a motion for a new trial, consenting to a
reduction of damages.

However, the ‘implied authority’ of counsel in English law is confined to matters falling within the
subject matter of the suit. In the absence of express authority, the counsel cannot enter into a decision
with reference to a collateral matter. Halsbury’s Laws of England, 4th ed. Vol. 3, paras 1183 provides that

A compromise by counsel will not bind the client, if counsel is not apprised of facts the knowledge of which
is essential in reference to the question on which he has to exercise his discretion, for example that the terms
accepted had already been rejected by the client. Where counsel enters into a compromise in intended pursuance
of terms agreed upon between the clients, and, owing to a misunderstanding, the compromise fails to carry out
the intentions of one side, the compromise does not bind the client, and the court will allow the consent to be
withdrawn.

The BCI Rules don’t refer to details regarding the authority and control of lawyer–client relationship.
Supreme Court of India’s decision in Byram Pestonji Gariwala vs Union Bank of India12 case is a relevant
legal authority on this issue. The court has held ‘that client’s consent is not needed for a matter which is
within the ordinary authority of counsel.., his consent will be inferred, and he will not be heard to say
that he did not understand what was going on.’ However, the court has also drawn certain limitations on
this authority of lawyers and the limitation rule propounds that ‘it will be prudent for counsel not to act
on implied authority except when warranted by the exigency of circumstances.’

Lawyer’s Authority to Settle Client’s Case

According to the rule laid down by Supreme Court in Byram Pestonji case13

lawyers as agents have limited authority to settle clients cases because of the implied authority vested by his
appointment as a counsel. But the court also states that ‘it will be prudent for counsel not to act on implied
authority except when warranted by the exigency of circumstances demand’.

The English law on this issue is clear that lawyers don’t have authority to settle a client’s case without
her proper consent.

11
  Lord Hailsham, Halsbury’s Laws of England, 4(3), Butterworths, 1181 (1975).
12
  Byram Pestonji Gariwala vs Union Bank of India, (1992) 1 S.C.C. 31.
13
  Id.
32 Asian Journal of Legal Education 7(1)

Representing Client of Special Categories, that is, Minor, Mentally Unsound or Juvenile
Lawyers often represent clients who are minor, mentally disabled or juveniles. Sometimes they receive
this case personally from these clients or their wards or otherwise they are called by the legal aid
authorities14 or courts to represent them. Such clients may have diminished capacity or intellectual
impairment to provide appropriate instruction to the lawyer. Who can give instruction to the lawyer on
behalf of such clients? And also what decisions can lawyers take for such client?
As per Indian law every civil suit or proceeding filed by or against a minor or mentally disabled
person ‘shall be in her name’ by a ‘guardian’ or a ‘next friend’ of such suitors.15 Any person who is of
sound mind and has attained majority may act as next friend of a minor or as his guardian, provided that
the interest of such person is not adverse to that of the minor.16 Where there is no other person fit and
willing to act as guardian for the suit, the Court may appoint any of its officers to be such guardian. Every
application to the court on behalf of a minor or a mentally unsound person shall be made by his next
friend or by his guardian for the suit.17
Plea of minority or mental unsoundness exonerates a person from criminal liability.18 However a
‘Juvenile’ may require assistance of a lawyer to defend him in an enquiry before the Juvenile Justice
Board.19 However Section 46 of the Juvenile Justice (Care and Protection) Act, 2000 states that

Any competent authority before which a juvenile or the child is brought under any of the provisions of this Act,
may, whenever it so thinks fit, require any parent or guardian having the actual charge of or control over the
juvenile or the child to be present at any proceeding in respect of the juvenile or the child.

Under India law in any civil proceeding a guardian or next friend has the authority to instruct a lawyer
on behalf of minor or a mentally unsound person as her authorized representative. There is no such
express provision in the juvenile justice law and juvenile can give express instructions to her lawyer.
However, if the lawyer deems fit, he can consult whenever any parent or guardian having the actual
charge of or control over the juvenile.
However, it is important to note that both civil and criminal proceedings involving a ‘minor’, ‘mentally
disabled’ or ‘juvenile’ is in their name. So the parent, guardian or next friend acts as her representative
or authorized agent have implied authority by law to instruct in the legal proceeding on her behalf. So
looked from a lawyer–client relationship perspective the ‘minor’, ‘mentally disabled’ or ‘juvenile’ is the
client or ‘principal’ who appoints the lawyer, but the lawyer requires consulting or taking instruction
from such parent, guardian or next friend. Rule 19 of BCI provides that ‘An advocate shall not act on the
instructions of any person other than his client or his authorized agent.’ It is interesting to consider
whether the lawyer can totally ignore the interest and instructions of any of a ‘minor’, ‘mentally disabled’
or ‘juvenile’ client. Furthermore, it is also a contentious issue whether a lawyer has an implied authority

14
  See the National Legal Services Authority (Legal Services to the Mentally ILL Persons and Persons with Mental Disabilities)
Scheme, 2010. Under the scheme lawyers are required to provide Legal aid to mentally ill persons under Section 91 of Mental
Health Act, 1987. Similarly, under other schemes NALSA may appoint lawyers to provide legal representation to the children
across the country.
15
  See Order XXXII Rule 1, 3 and 15 of the Code of Civil Procedure, 1908.
16
  See Order XXXII Rule 4 of the Code of Civil Procedure, 1908.
17
  See Order XXXII Rule 5 of the Code of Civil Procedure, 1908.
18
  See Section 83, 84 & 85 of Indian Penal Code, 1860.
19
  Sampurna Behrua v. Union of India, (2011) 15 S.C.C. 232.
Chakraborty 33

to act in cases of reasonable and calculated actions for the protection of interest or welfare of such
clients.
Rule 1.14 of the American Bar Association Model Rules Professional Conduct (2004) relates to
lawyer’s relationship with clients having diminished capacity. This rule encourages a lawyer to maintain
a ‘normal’ lawyer client relation with clients having diminished capacity. But rule also permits the
lawyer to assume more paternalistic role to protect the clients from some harm. In such case the lawyer
may ask the court to appoint a third party who would make some legal decision on behalf of the client.
There is no similar comparable rule in either BCI Rules or BCI Draft Code of Ethics. But the rule also
like Indian law emphasizes that when the lawyer is dealing with a client with diminished capacity is
preferred that the client is represented through a GAL (guardian ad litem or guardian). Although in
United States in recent past Scholars have attacked this on the grounds, for example, too paternalistic
approach, best interest of child is neglected and the true voice of the child becomes redundant. But Prof.
Frances G. Hill argues in the face of such criticism that GAL compared to attorney–client model has
some affirmative strength.20
However, in India the Ministry of Women and Child Development, Government of India, in its
advisory capacity has framed model guidelines for lawyer on handling complaints by children under the
Prevention of Children from Sexual Offences Act, 2012 keeping in view with the ‘Best Interest’ of the
child. These guidelines can be used for guidance by lawyers in dealing with representation of a juvenile
client. The guideline states that the lawyer shall represent the child in accordance with the child’s welfare
and best interests. Where a child by virtue of his/her age, maturity or disability, unable to express a view
as a general rule, the lawyer shall act in terms of the child’s instructions, conveying them to the Court by
direct evidence if possible, call such witnesses as are required to carry out those instructions and examine
and cross-examine and make submissions on behalf of the child.

Ethical Dilemmas During Discharge of The Lawyer–Client Relation

Generally, the relationship between a lawyer–client terminates with end of case or the work that the
client has entrusted to lawyer (unless there is a retainership agreement). However, termination can also
happen by way of dischargement of the lawyer by his client21 or lawyer’s withdrawal from case22. On
termination of the lawyer–client relationship, lawyer has the duty to promptly return the client all the
documents and files, certified copies of the order or judgement (if agreed),23 along with the detailed
statement of accounts relating to client’s money received by the lawyer, receipts and if any remaining
unused money of the client. However, BCI Ethics rules are not candidly specifying what documents are
required to be returned to the client on termination. The Supreme Court however has observed all
documents and files relating to the case available with the lawyer have to be returned to the client
promptly on termination of lawyer–client relationship. It is understood that lawyer will deliver all
documents and files received from his client. But one issue raised is that when a client has not paid the
bill at the end of the representation, can the lawyer keep a client’s documents until the client pays? The

20
  Frances Gall Hill, Clinical Legal Education and the ‘Best Interest’ Representation of Children in Custody Disputes: Challenges
and Opportunities in Lawyering Pedagogy, 73 Ind. L. J. 605 (1988).
21
  R.D. Saxena v. Balaram Prasad Sharma, (2000) 7 S.C.C. 264.
22
  Rule 12 of BCI Rules along with formal acceptance of the same by order of Court.
23
  Supra note 22.
34 Asian Journal of Legal Education 7(1)

law in this regard is settled and the Supreme Court’s opinion in R.D. Saxena v. Balaram Prasad Sharma24
is applicable. The Apex Court has held 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.

The Apex Court has further elaborated on the termination of the lawyer–client relation that a lawyer must
withdraw if a client desires to fire her. A client always has a right to change lawyers and need not give
any reason. According to the court

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. For whatever reason, 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.25

Finally, the lawyer’s must remember that even with the termination of the lawyer–client relation, the
lawyer’s duty of confidentiality towards his client’s case and communication is a continued and eternal
obligation and is never terminated once a lawyer–client relationship is established.

Conclusion
An effective justice delivery system requires talented, dedicated and qualified legal professionals who
serve the bar. As torch bearers of justice, it is a heavy burden from the day a legal practitioner earns the
privilege to be called an officer of the court. Every legal practitioner must be cognizant of the responsi-
bilities that come with being admitted to profession and with each appointment and level of office. With
this objective in mind this article has attempted to expose lawyers to some of the most fundamental ethi-
cal issues and standards of professional conducts that occur frequently in course of dispensing their
professional responsibilities and interaction with clients. The article likes to conclude that it is inadvert-
ent that the members and entrants of this profession must be informed about these challenges and sensi-
tized about the rules that aid their resolution. This awareness will help them to serve the clients better and
shape their professional life in a more efficient manner.

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research, authorship and/or publication of
this article.

Funding
The author received no financial support for the research, authorship and/or publication of this article.

24
  Id.
25
  Id.