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R. D. Saxena v Balram Prasad Sharma

Supreme Court of India
22 August 2000
Civil Appeal No. 1938 of 2000 with Contempt Petition No. 147 of 2000 with Contempt
Petition No. 197 of 2000 (Appeal from the judgment and order dated July 24, 1999
of the Disciplinary Committee of the Bar Council of India, New Delhi in B.C.I.T.R.C.
No. 21 of 1996), decided on August 22, 2000.
The Judgment was delivered by K. T. THOMAS J. :
K. T. THOMAS J. - The main issue posed in this appeal has sequential importance for
members of the legal profession. The issue is this : has the advocate a lien for his
fees on the litigation papers entrusted to him by his client ? In this case the Bar
Council of India, without deciding the above crucial issue, has chosen to impose
punishment on a delinquent advocate debarring him from practising for a period of
18 months and a fine of Rs. 1, 000 . The advocate concerned was further directed to
return all the case bundles which he got from his client - the respondent - without
any delay. This appeal is filed by the said advocate under section 38 of the Advocates
Act, 1961.
As the question involved in this appeal has topical importance for the legal profession
we heard learned counsel at length. To appreciate the contentions we would present
the factual backdrop as under :
The appellant, now a septuagenarian, has been practising as an advocate mostly in
the courts at Bhopal, after enrolling himself as a legal practitioner with the State Bar
Council of Madhya Pradesh. According to him, he was appointed as legal advisor to
the Madhya Pradesh State Co-operative Bank Ltd. ("bank", for short) in 1990 and the
bank continued to retain him in that capacity during the succeeding years. He was
also engaged by the said bank to conduct cases in which the bank was a party.
However, the said retainership did not last long. On July 17, 1993, the bank
terminated the retainership of the appellant and requested him to return all the case
files relating to the bank. Instead of returning the files the appellant forwarded a
consolidated bill to the bank showing an amount of Rs. 97, 100 as the balance
payable by the bank towards the legal remuneration to which he is entitled. He
informed the bank that the files would be returned only after settling his
dues.Correspondence went on between the appellant and the bank regarding the
amount, if any, payable to the appellant as the balance due to him. The respondentbank disclaimed any liability outstanding from them to the appellant. The dispute
remained unresolved and the case bundles never passed from the appellant's hands.
As the cases were pending the bank was anxious to have the files for continuing the
proceedings before the courts/tribunals concerned, At the same time the bank was
not disposed to capitulate to the terms dictated by the appellant which they regarded
as grossly unreasonable. A complaint was hence filed by the managing director of
the bank, before the State Bar Council (Madhya Pradesh) on February 3, 1994. It
was alleged in the complaint that the appellant is guilty of professional misconduct
by not returning the files to his client.
In the reply which the appellant submitted before the Bar Council he admitted that
the files were not returned but claimed that he has a right to retain such files by
exercising his right of lien and offered to return the files as soon as payment is
made to him.
The complaint was then forwarded to the Disciplinary Committee of the District Bar
Council. The State Bar Council failed to dispose of the complaint even after the
expiry of one year. So under section 36-B of the Advocates Act the proceedings stood
transferred to the Bar Council of India. After holding inquiry the Disciplinary
Committee of the Bar Council of India reached the conclusion that the appellant is

Page3

guilty of professional misconduct. The Disciplinary Committee has stated the

following in the impugned order :
"On the basis of the complaint as well as the documents available on record we are
of the opinion that the respondent is guilty of professional misconduct and thereby
he is liable for punishment. The complainant is a public institution. It was the duty of
the respondent to return the briefs to the bank and also to appear before the
committee to revert his allegations made in application dated November 8, 1995. No
such attempt was made by him."
In this appeal learned counsel for the appellant contended that the failure of the Bar
Council of India to consider the singular defence set up by the appellant, i.e., he has
a lien over the files for his unpaid fees due to him, has resulted in miscarriage of
justice. The bank contended that there was no fee payable to the appellant and the
amount shown by him was on account of inflating the fees. Alternatively, the
respondent contended that an advocate cannot retain the files after the client
terminated his engagement and that there is no lien on such files.
We would first examine whether an advocate has lien on the files entrusted to him
by the client. Learned counsel for the appellant endeavoured to base his contention
on section 171 of the Indian Contract Act which reads thus :
"Bankers, factors, wharfingers, attorneys of a High Court and policy-brokers may, in
the absence of a contract to the contrary, retain, as a security for a general balance
of account, any goods bailed to them; but no other persons have a right to retain, as
a security for such balance, goods bailed to them, unless there is an express contract
to that effect."
Files containing copies of the records (perhaps some original documents also) cannot
be equated with the "goods" referred to in the section. The advocate keeping the
files cannot amount to "goods bailed". The word "bailment" is defined in section 148
of the Indian Contract Act as the delivery of goods by one person to another for
some purpose, upon a contract that they shall be returned or otherwise disposed of
according to the directions of the person delivering them, when the purpose is
accomplished. In the case of litigation papers in the hands of the advocate there is
neither delivery of goods nor any contract that they shall be returned or otherwise
disposed of. That apart, the word "goods" mentioned in section 171 is to be
understood in the sense in which that word is defined in the Sale of Goods Act. It
must be remembered that Chapter VII of the Indian Contract Act, comprising
sections 76 to 123, had been wholly replaced by the Sale of Goods Act, 1930. The
word "goods" is defined in section 2(7) of the Sale of Goods Act as "every kind of
movable property other than actionable claims and money; and includes stock and
shares, growing crops, grass, and things attached to or forming part of the land
which are agreed to be severed before sale or under the contract of sale"
.Thus understood "goods" to fall within the purview of section 171 of the Indian
Contract Act should have marketability and the person to whom it is bailed should be
in a position to dispose it of in consideration of money. In other words the goods
referred to in section 171 of the Indian Contract Act are saleable goods. There is no
scope for converting the case files into money, nor can they be sold to any third
party. Hence, the reliance placed on section 171 of the Indian Contract Act has no
merit.
In England the solicitor had a right to retain any deed, paper or chattel which has
come into his possession during the course of his employment. It was the position in
common law and it was later recognized as the solicitor's right under the Solicitors
Act, 1860. In Halsbury's Laws of England, it is stated thus (vide paragraph 226 in

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volume 44) :
"226. Solicitor's rights. - At common law a solicitor has two rights which are termed
liens. The first is a right to retain property already in his possession until he shall
have paid costs due to him in his professional capacity, and the second is a right to
ask the court to direct that personal property recovered under a judgment obtained
by his exertions stands as security for his costs of such recovery. In addition, a
solicitor has by statute a right to apply to the court for a charging order on property
recovered or preserved through his instrumentality in respect of his taxed costs of
the suit, matter or proceeding prosecuted or defended by him."
Before India attained independence different High Courts in India had adopted
different views regarding the question whether an advocate has a lien over the
litigation files kept with him. In P. Krishnamachariar v. The Official Assignee of
Madras, 1932 AIR(Mad) 256, a Division Bench held that an advocate could not have
such a lien unless there was an express agreement to the contrary. The Division
Bench has distinguished an earlier decision of the Bombay High Court in Tyabji,
Dayabhai and Co. v. Jetha Devji and Co., 1927 AIR(Bom) 542, wherein the English
law relating to the solicitor's lien was followed. Subsequently, a Full Bench of the
Madras High Court in 1943 followed the decision of the Division Bench. A Full Bench
of the Patna High Court in B, an Advocate, In re, 1933 AIR(Pat) 571, (Misc. judl.
Case No. 18 of 1933) held the view that an advocate could not claim a right to retain
the certified copy of the judgment obtained by him on the premise that an appeal
was to be filed against it. Of course the Bench said that if the client had specifically
instructed him to do so it is open to him to keep it.After independence the position
would have continued until the enactment of the Advocates Act, 1961, which has
repealed a host of enactments including the Indian Bar Council Act. When the new
Bar Council of India came into existence it framed rules called the Bar Council of
India Rules as empowered by the Advocates Act. Such rules contain provision
specifically prohibiting an advocate from adjusting the fees payable to him by a client
against his own personal liability to the client. As a rule an advocate shall not do
anything whereby he abuses or takes advantage of the confidence reposed in him by
his client (vide rule 24). In this context a reference can be made to rules 28 and 29
which are extracted below :
"28. After the termination of the proceeding, the advocate shall be at liberty to
appropriate towards the settled fee due to him, any sum remaining unexpended out
of the amount paid or sent to him for expenses, or any amount that has come into
his hands in that proceeding.
29. Where the fee has been left unsettled, the advocate shall be entitled to deduct,
out of any moneys of the client remaining in his hands, at the termination of the
proceeding for which he had been engaged, the fee payable under the rules of the
court, in force for the time being, or by then settled and the balance, if any, shall be
refunded to the client."
Thus, even after providing a right for an advocate to deduct the fees out of any
money of the client remaining in his hand at the termination of the proceeding for
which the advocate was engaged, it is important to notice that no lien is provided on
the litigation files kept with him. In the conditions prevailing in India with lots of
illiterate people among the litigant public it may not be advisable also to permit the
counsel to retain the case bundle for the fees claimed by him. Any such lien if
permitted would become susceptible to great abuse and exploitation.There is yet
another reason which dissuades us from giving approval to any such lien. We are
sure that nobody would dispute the proposition that the cause in a court/tribunal is
far more important for all concerned than the right of the legal practitioner to his
remuneration in respect of the services rendered for espousing the cause on behalf

Page5

of the litigant. If a need arises for the litigant to change his counsel pendente lite,
that which is more important should have its even course flowed unimpeded.
Retention of records for the unpaid remuneration of the advocate would impede such
course and the cause pending judicial disposal would be badly impaired. If a medical
practitioner is allowed a legal right to withhold the papers relating to the treatment
of his patient which he thus far administered to him for securing the unpaid bill, that
would lead to dangerous consequences for the uncured patient who is wanting to
change his doctor. Perhaps the said illustration may be an overstatement as a
necessary corollary for approving the lien claimed by the legal practitioner. Yet the
illustration is not too far-fetched. No professional can be given the right to withhold
the returnable records relating to the work done by him with his client's matter on
the strength of any claim for unpaid remuneration. The alternative is that the
professional concerned can resort to other legal remedies for such unpaid
remuneration.
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. It is time to
hold that such obligation is not only a legal duty but a moral imperative.In civil
cases, the appointment of an advocate by a party would be deemed to be in force
until it is determined with the leave of the court (vide Order 3, rule 4(1) of the Code
of Civil Procedure ). In criminal cases, every person accused of an offence has the
right to consult and be defended by a legal practitioner of his choice which is now
made a fundamental right under article 22(1) of the Constitution. The said right is
absolute in itself and it does not depend on other laws. In this context reference can
be made to the decision of this court in State of Madhya Pradesh v. Shobharam,
1966 AIR(SC) 1910. The words "of his choice" in article 22(1) indicate that the right
of the accused to change an advocate whom he once engaged in the same case,
cannot be whittled down by that advocate by withholding the case bundle on the
premise that he has to get the fees for the services already rendered to the client.
If a party terminates the engagement of an advocate before the culmination of the
proceedings that party must have the entire file with him to engage another
advocate. But if the advocate who is changed midway adopts the stand that he
would not return the file until the fees claimed by him is paid, the situation perhaps
may turn to dangerous proportion. There may be cases when a party has no
resource to pay the huge amount claimed by the advocate as his remuneration. A
party in a litigation may have a version that he has already paid the legitimate fee to
the advocate. At any rate if the litigation is pending the party has the right to get the
papers from the advocate whom he has changed so that the new counsel can be
briefed by him effectively. In either case it is impermissible for the erstwhile counsel
to retain the case bundle on the premise that fees are yet to be paid.Even if there is
no lien on the litigation papers of his client an advocate is not without remedies to
realise the fee which he is legitimately entitled to. But if he has a duty to return the
files to his client on being discharged the litigant too has a right to have the files
returned to him, more so when the remaining part of the lis has to be fought in the
court. This right of the litigant is to be read as the corresponding counterpart of the
professional duty of the advocate.
Misconduct envisaged in section 35 of the Advocates Act is not defined. The section
uses the expression "misconduct, professional or otherwise". The word "misconduct"
is a relative term. It has to be considered with reference to the subject-matter and
the context wherein such term occurs. It literally means wrong conduct or improper
conduct.
Corpus Juris Secundam, contains the following passage at page 740 (volume 7) :

Page6

"Professional misconduct may consist in betraying the confidence of a client, in

attempting by any means to practise a fraud or impose on or deceive the court or
the adverse party or his counsel, and in fact in any conduct which tends to bring
reproach on the legal profession or to alienate the favourable opinion which the
public should entertain concerning it."
The expression" professional misconduct"
was attempted to be defined by Darling J., in A Solicitor ex parte the Law Society, In
re [1912] 1 K.B. 302 in the following terms :
"If it is shewn that an advocate in the pursuit of his profession has done something
with regard to it which would be reasonably regarded as disgraceful or dishonourable
by his professional brethren of good repute and competency, then it is open to say
that he is guilty of professional misconduct."
In this context it is to be mentioned that the aforesaid definition secured approval by
the Privy Council in George Frier Grahame v. Attorney-General, Fiji, 1936 AIR(PC)
224. We are also inclined to take that wide canvass for understanding the import of
the expression "misconduct" in the context in which it is referred to in section 35 of
the Advocates Act.We, therefore, hold that the refusal to return the files to the client
when he demanded the same amounted to misconduct under section 35 of the Act.
Hence, the appellant in the present case is liable to punishment for such misconduct.
However, regarding the quantum of punishment we are disposed to take into account
two broad aspects : (1) this court has not pronounced, so far, on the question
whether an advocate has a lien on the files for his fees; (2) the appellant would
have bona fide believed, in the light of decisions of certain High Courts, that he did
have a lien. In such circumstances it is not necessary to inflict a harsh punishment
on the appellant. A reprimand would be sufficient in the interest of justice on the
special facts of this case.
We, therefore, alter the punishment to one of reprimanding the appellant. However,
we make it clear that if any advocate commits this type of professional misconduct in
future he would be liable to such quantum of punishment as the Bar Council will
determine and the lesser punishment imposed now need not be counted as a
precedent.
Appeal is disposed of accordingly.
R. P. SETHI J. - I had the privilege of going through the lucid and informative
judgment prepared by my esteemed brother Thomas J. I agree both with the
reasoning and the conclusions. However, realising by the importance of the issue
involved and its implication on the legal profession in relation with litigant public, I
wish to add a few words by my own to this judgment.
While dealing with the moneys or any other article or document entrusted, an
advocate is expected to always keep in mind the high standards of profession and its
values adopted and practised for centuries. "Professional obligations" of a lawyer are
distinguished from the "business commitments" followed by the trading community.
The legal profession owes social obligations to the society in discharge of the
profession services to the litigants. The Bar Council of India Rules say that : "An
advocate shall, at all times, compose himself in a manner befitting his status as an
officer of the court, a privileged member of the community and a gentleman, bearing
in mind that what may be lawful and moral for a person who is not a member of the
Bar or for a member of the Bar in his non-professional capacity may still be improper
for an advocate."
According to the ancient traditions, the professional services rendered by the lawyers

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were honorary and the reward given to him was not a compensation for discharge of
his legal obligations or legal assistance but in the nature of gratitude in recognition of
the honorary services rendered by him. Among the Romans, it was one of the duties,
which the patrician as patron owed to the plebsian to give protection to the latter in
his law suits. For those who rendered legal assistance, Gibbon says in his book The
Decline and Fall of the Roman Empire :
"On the public days of market, or assembly, the masters of the art were seen
walking in the forum ready to impart the needful advice to the meanest of their
citizens from whose votes on a future occasion they might solicit a grateful return.
As their years and honors increased, they seated themselves at home, on a chair or
throne, to expect with patient gravity the visits of their clients, who at the dawn of
day, from the town and country, began to thunder at their doors."
However with the passage of time professional assistance ceased to be gratuitous.
With the multiplicity of the proceedings, increase in litigation and complicacies of
law, the legal assistance could not be in the nature of a mere social obligation and
the services rendered as honorary, because a great deal of time was needed by a
lawyer to equip himself with the laws, which prevented him from earning his
livelihood from other sources. The ancient tradition having ceased to exist, the
profession of law could have flourished only if those who pursued it were allowed
remuneration for the services rendered.In England also, a belief existed from the
earliest times that the lawyer's fees are not a compensation to him for discharge of
legal obligations but a gratuity or an honorarium which the client bestowed on him in
token of his gratitude. The lawyers were considered as officers of the court, the
tradition being that the law was an honorary occupation and not a means of
livelihood. Early advocates were generally persons in holy orders who rendered their
services to the weak and afflicted without charge and as an act of pity.
Under common law, the rights of a solicitor are called as liens, which are of two
types namely : (1) a "retaining lien", i.e., a right to retain property already in his
possession until he has been paid costs due to him in his professional character; and
a "lien on property recovered or preserved", i.e., a right to ask the court to direct
that personal property recovered under a judgment obtained by his exertions stand
as security for his costs of such recovery.
According to Cordery "On Solicitors"- seventh edition, the retaining lien is founded
on the general law of lien which springs from possession and is governed by the
same rules as other cases of possessory lien. Per Evershed M. R. in Barratt v.
Gough-Thomas [1951] Ch. 242, 1053, observed :
"It is a right at common law depending, it has been said, on implied agreement. It
has not the character of an encumbrance or equitable charge. It is merely passive
and possessory, that is to say, the solicitor has no right of actively enforcing his
demand. It confers on him merely the right to withhold possession of the documents
or other personal property of his client or former client... It is wholly derived from,
and, therefore, co-extensive with, the rights of the client to the documents or other
property."
According to Cordery the property upon which lien can be claimed is in the form of
deeds, papers or other personal property which comes into solicitor's possession in
the course of his professional employment with the sanction of the client and/or
client's property, such as bill of exchange, application of shares, share certificates, a
debenture trust deed, a policy of assurance, letters of administration or money. After
referring to various authorities of English courts, the law relating to lien and its
retention has been summarised in Halsbury's Laws of England, volume 44(1), 1995
edition, as under :
"Property affected by retaining lien. - The general rule is that the retaining lien

Page8

extends to any deed, paper, or personal chattel which has come into the solicitor's
possession in the course of his employment and in his capacity as solicitor, with the
client's sanction and which is the client's property. The following may thus be subject
to a retaining lien :
(1) a bill of exchange;
(2) a cheque;
(3) a policy of assurance;
(4) a share certificate;
(5) an application for shares;
(6) a debenture trust deed;
(7) letters patent;
(8) letters of administration;
(9) money, including money in a client account, although only the amount due to the
solicitor, and maintenance received by a solicitor if not subject to an order as to its
application or bound to be applied, in effect, as trust money, or;
(10) documents in a drawer of which the solicitor is given the key.
The lien does not extend to (a) a client's original will; or (b) a deed in favour of the
solicitor but reserving a life interest and power of revocation to the client; or (c)
original court records; or (d) documents which did not come into the solicitor's hands
in his capacity as solicitor for the person against whom the lien is claimed or his
successor, but as mortgagee, steward of a manor or trustee. Moreover, where
documents are delivered to a solicitor for a particular purpose under a special
agreement which does not make express provision for a lien in favour of the
solicitor, as perhaps the raising of money, or money is paid to the solicitor for a
particular purpose so that he becomes a trustee of the money, no lien arises over
those documents or that money unless subsequently left in the solicitor's possession
for general purposes. Otherwise the lien extends to the property whatever the
occasion of delivery, except that where a solicitor acts for both mortgagor and
mortgagee and the mortgage is redeemed the solicitor cannot set up a lien on the
deeds against the mortgagor."
It is further stated that such a lien extends only to the solicitor's taxable costs,
charges and expenses incurred on the instructions of the client against whom the
lien is claimed and for which the client is personally liable including the costs of
recovering the remuneration by action or upon a taxation.
It follows, therefore, that even under the common law no lien can be claimed with
respect to the case file and such documents which are necessary for the further
progress of the lis filed in the court. Even in England the right of retention has been
much diluted by various exceptions created by decisions, chiefly by the courts of
equity on the basis of what may be just and equitable as between the parties with
conflicting interests.
Alfred H. Silvertown in The Law of Lien states that where documents are delivered
by a client to a solicitor for a specific purpose, then no lien is created unless there is
an agreement to the contrary. The retaining lien extends only to the extent of
solicitor's taxable costs and expenses arising from the instructions of the client, for
which the client is personally liable. The lien does not embrace and fees expenses
which are due to the solicitor in some other capacity. To attract the solicitor's lien on
a document of his client, it has to be specifically shown that the client had agreed
with respect to the creation of lien upon the document in the case of his failure to
pay the solicitor's fee.
The "Professional Practice Handbook, Young Lawyers Section, Law Institute of
Victoria, 1982"

Page9

prescribes that it is the duty of a solicitor, when called upon by his client, to deliver
him the documents in his charge. The solicitor is subject to the ordinary law of
bailee of client's papers in his possession. The bailment is a bailment at will which,
depending upon the circumstances, may be gratuitous or for reward. In either case
the bailee-solicitor is under a duty to redeliver, upon demand, the client's papers
certainly within the period during which a solicitor may be regarded as owing a duty
not to destroy papers having regard to the limitations of Actions Act, 1958.In
modern India, the rights of an advocate to appear in the court are referable to his
enrolment as such under the statute governing the enrolment. The lawyer's rights,
obligations and disabilities are, therefore, governed either by the contract or by the
statute. He has the right to sue his client for his fees, if not paid, like any other
professional. The rights and obligations of an advocate ought to be regulated by
keeping the high standards and exalted position of the profession by not treating
lawyers as ordinary merchants. Thomas J. has very elaborately dealt with and
concluded that the provisions of section 171 of the Indian Contract Act cannot be
pressed into services by an advocate for retention of documents of his client
purportedly in exercise of his lien over such case file papers.
Reference to "goods" in section 171 of the Indian Contract Act cannot, by any
imagination, be stretched to mean the case papers, entitling their retention by the
lawyer as his lien for the purposes of realising his fee. Besides the meaning attached
to the "goods" under section 2(7) of the Sale of Goods Act, under the general law
"goods" have been defined in Bailey's Large Dictionary of 1732 as "merchandise" and
by Johnson, who followed as the next lexicographer, it is defined to be movables in a
house; personal or immovable estates; wares, freight, merchandise. Webster defines
the word "goods" thus :
"Goods, noun, plural; (1) movables; household furniture; (2) Personal or movable
estate, as horses, cattle, utensils, etc. (3) wares; merchandise; commodities bought
and sold by merchants and traders."
This court in Union of India v. Delhi Cloth and General Mills Co. Ltd., 1963 AIR(SC)
791 held that to become "goods" an article must be something which can ordinarily
come to the markets to be bought and sold. In Collector of Central Excise, CalcuttaII v. Eastend Paper Industries Ltd. 1989 (4) SCC 244 it was stated that goods are
understood to mean as identifiable articles known in the markets as goods and
marketed and marketable in the market as such. Where the Act does not define
"goods", the Legislature should be presumed to have used that word in its ordinary
dictionary meaning, i.e., to become goods it must be something which can ordinarily
come to the market to be bought and sold and is known to the market as such.Thus,
looking from any angle, it cannot be said that the case papers entrusted by the client
to his counsel are the goods in his hand upon which he can claim a retaining lien till
his fee or other charges incurred are not paid. G, a Senior Advocate of the Supreme
Court, In re, 1954 AIR(SC) 557, this court observed that it was highly reprehensible
for an advocate to stipulate for or receive a remuneration proportioned to the result
of litigation or a claim whether in the form of a share in the subject-matter, a
percentage or otherwise. An advocate is expected, at all times, to conduct himself in
a manner befitting his status as an officer and gentleman by upholding the high and
honourable profession to whose privilege he has been admitted after his enrolment.
If an advocate departs from the high standards which the profession has set for itself
and conducts in a manner which is not fair, reasonable and according to law, he is
liable to disciplinary action. M, an Advocate, In re, 1957 AIR(SC) 149, this court
observed (page 163) :
"As has been laid down by this court G, a Senior Advocate of the Supreme Court, In
re, 1954 AIR(SC) 557, the court, in dealing with cases of professional misconduct is
'not concerned with ordinary legal rights, but with the special and rigid rules of

Page10

professional conduct expected of and applied to a specially privileged class of

persons who, because of their privileged status, are subject to certain disabilities
which do not attach to other men and which do not attach even to them in a nonprofessional character..... he (a legal practitioner) is bound to conduct himself in a
manner befitting the high and honourable profession to whose privileges he has so
long been admitted; and if he departs from the high standards which that profession
has set for itself and demands of him in professional matters, he is liable to
disciplinary action'. It appears to us that the fact of there being no specific rules
governing the particular situation, which we are dealing with, on the facts found by
us, is not any reason for accepting a less rigid standard. If any, the absence of rules
increases the responsibility of the members of the profession attached to this court
as to how they should conduct themselves in such situations, having regard to the
very high privilege that an advocate of this court now enjoys as one entitled, under
the law, to practice in all the courts in India."
In our country, admittedly, a social duty is cast upon the legal profession to show
the people beacon light by their conduct and actions. The poor, uneducated and
exploited mass of the people need a helping hand from the legal profession,
admittedly, acknowledged as a most respectable profession. No effort should be
made or allowed to be made by which a litigant could be deprived of his rights,
statutory as well as constitutional, by an advocate only on account of the exalted
position conferred upon him under the judicial system prevalent in the country. It is
true that an advocate is competent to settle the terms of his engagement and his fee
by private agreement with his client but it is equally true that if such fee is not paid
he has no right to retain the case papers and other documents belonging to his
client. Like any other citizen, an advocate has a right to recover the fee or other
amounts payable to him by the litigant by way of legal proceedings but subject to
such restrictions as may be imposed by law or the rules made in that behalf. It is
high time for the legal profession to join heads and evolve a code for themselves in
addition to the mandate of the Advocates Act, rules made thereunder and the rules
made by various High Courts and this court, for strengthening the belief of the
common man in the institution of the judiciary in general and in their profession in
particular. Creation of such a faith and confidence would not only strengthen the
rule of law but also result in reaching the excellence in the profession.
2012 Thomson Information South Asia Pvt Ltd