Advocate leaving india permenently
Querist :
Anonymous
(Querist) 04 January 2012
This query is : Resolved
Respected Sir,
advocate of macp case leaving India,but refuse to return case paper to client without fee. Fee amount high in this stage because case not completed.
my question:
If advocate left India permenently,advocate can be changed without NOC??
any dispute if client appoint another advocate without giving fees in this case??
M.Sheik Mohammed Ali
(Expert) 04 January 2012
As per professional ethics any lawyer could not do like your problem. how do tell he has left out india, same time the advocate can go any where. if possible to get there office junior or other right person contact.
prabhakar singh
(Expert) 04 January 2012
An advocate can not claim lien on his clients brief and file papers[R.D. Saxena vs Balram Prasad Sharma on 22 August, 2000
Author:Bench: K.T.Thomas supreme 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. 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. {see alsoState of Madhya Pradesh vs. Shobharam and ors. (AIR 1966 SC 1910).}
The Supreme Court in R.D.Sharma case further held"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 is 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 Secundum, contains the following passage at page 740 (vol.7):
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 In re A Solicitor ex parte the Law Society [(1912) 1 KB 302] in the following terms: It it is shown 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 vs. Attorney-General, Fiji,(1936 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, 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 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."
Raj Kumar Makkad
(Expert) 04 January 2012
There shall not be any problem and even no NOC shall be required in the given case. I am totally opposed to bent upon the illegal ethics of such lawyers. You can tel your practical problem to the concerned court which can allow you to replace your lawyer without obtaining NOC of such lawyer.
prabhakar singh
(Expert) 04 January 2012
The provisions in CPC
Order 3 of the Code of Civil Procedure relates to recognized Agents and Pleaders. Rule 4 of Order 3 reads as follows:
4. Appointment of pleader.(1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agency or by some other person duly authorized by or under a power-of-attorney to make such appointment.
(2) Every such appointment shall be filed in Court and shall, for the purposes of Sub-rule (1) be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client.
Explanation.For the purposes of this sub-rule, the following shall be deemed to be proceedings in the suit,
(a) an application for the review of decree or order in the suit,
(b) an application under Section 144 or under Section 152 of this Code, in relation to any decree or order made in the suit,
(c) an appeal from any decree or order in the suit, and
(d) any application or act for the purpose of obtaining copies of documents or return of documents produced or filed in the suit or of obtaining refund of moneys paid into the Court in connection with the suit.
(3) Nothing in Sub-rule (2) shall be construed
(a) as extending, as between the pleader and his client, the duration for which the pleader is engaged, or
(b) as authorizing service on the pleader of any notice or document issued by any Court other than the Court for which the pleader was engaged, except where such service was expressly agreed to by the client in the document referred to in Sub-rule (1).
(4) The High Court may, by general order, direct that, where the person by whom a pleader is appointed is unable to write his name, his mark upon the document appointing the pleader shall be attested by such person and in such manner as may be specified by the order.
(5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in Court a memorandum of appearance signed by himself and stating
(a) the names of the parties to the suit,
(b) the name of the party for whom he appears, and
(c) the name of the person by whom he is authorized to appear:
Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act in Court on behalf of such
ajay sethi
(Expert) 04 January 2012
agree with Prabhakar Singh .judgement cited by Mr singh is clear lawyer cannot retain case papers of clients and is bound to return it . complain to bar council against said lawyer .
engage another advocate to fight your case
Sailesh Kumar Shah
(Expert) 04 January 2012
As per BCI Rules:-
"An advocate shall not enter appearance in any case in which there is already a vakalat or memo of appearance filed by an advocate engaged for a party except with his consent; in case such consent is not produced he shall apply to the Court stating reasons
why the said consent could not be produced and he shall appear only after obtaining the permission of the Court."
In your case, take permission from the court.
M/s. Y-not legal services
(Expert) 04 January 2012
if your previous counsel not available in india mean surely you can change your advocate to proceed further., you are liberty to do this.,
tom..
Advocate. Arunagiri
(Expert) 04 January 2012
You can withdraw the previous counsel by a memo.
Subsequently your new counsel can file his vakalat.
manoj joshi
(Expert) 04 January 2012
respected friends
if u want to change your lawyer whatever is the matter just request to court in writting and appoint new lawyer to takeover your case
regd
manoj joshi advocate
9927822660
Querist :
Anonymous
(Querist) 05 January 2012
Thank you very much for your expert advise
and directing me
and also thanks to www.lawyersclubindia.com
