Reposting previous question liability of an advocate
bharat khatwani
(Querist) 08 August 2024
This query is : Open
Following post was posted here a while ago.I request you to revisit same and opine.....don't you think that advocate had violated rule 4 and 5 of guidelines of bar council by sending legal notice????.....Rule 4: Play Fair with the Other Side
Lawyers (advocates) must follow the law and keep things fair for everyone involved in a case. This means they can't do anything illegal or unethical against the other party. Examples include:
Making up fake evidence
Tampering with what witnesses say
Personally attacking the other side
Rule 5: Client Says Jump, You Say "Hold On..." (Sometimes)
Lawyers have to fight hard for their clients (zealous representation), but they also get to use their own judgment. This means a lawyer can refuse to:
Take a case they believe is based on lies
Use arguments or tactics they think are unfair Anonymous (Querist) 20 September 2011This query is : Resolved THE HON'BLE HIGH COURT DISPOSED OFF A CASE RELATING TO THE ORDER OF DRT APPELLATE TRIBUNAL IN DISMISSING THE APPEAL FILED BY A GURANTEER. IN THE ORDERDTD.09.08.2011 PASSED IN THE PRESENCE OF THE COUNSELS OF BOTH SIDE, THE HON'BLE HIGH COURT SET ASIDE THE ORDER OF DISMISSAL WITH A DIRECTION TO BOTH SIDE TO APPEAR BEFORE APPELLATE TRIBUNAL ON 29.04.2011, ON WHICH DATE THE APPELATE TRIBUNAL SHALL FIX A DATE FOR FINAL HEARING OF THE APPEAL.IN THIS CONTEXT AND WHEN THE GURANTEER/ APPELLANT HAS NOT RECIEVED THE CERTIFIED COPY OF THE ORDER OF THE HON'BLE HIGH COURT IS IT LEGAL ON THE PART OF THE BANK ADVOCATE TO SEND A LEGAL NOTICE ON16.08.2011 TO THE GURANTEER EVEN ASSUMING THAT, THE BANK HAD INSTRUCTED HIM TO DO SO SPECIALLY WHEN THE ORDER OF THE HON'BLE HIGH COURT IS PASSED IN HIS PRESENCE. WHAT SHOULD BE THE LEGAL OBLIGATION OF THE ADVOCATE OF THE BANK IN SUCH A PECULIAR SITUATION?
Read more at: https://www.lawyersclubindia.com/experts/Legal-liability-of-an-advocate-while-sending-a-notice-231961.asp
bharat khatwani
(Querist) 12 August 2024
I took help of AI for clarification.....Read and opine......In the Lawyersclubindia post you shared, the anonymous querist raises a concern regarding the legality and appropriateness of a legal notice sent by a bank's advocate after a High Court order. The querist questions the advocate's actions and responsibilities, particularly given the order passed by the High Court, and whether the advocate's notice was sent with proper authorization from the bank.
Key Points and Opinions:
Validity of the Advocate's Actions:
Most experts, like Mr. Prabhakar Singh and Mr. Ramachandran, clarify that the advocate acted within legal bounds if he was instructed by his client (the bank). The advocate's role is to follow client instructions, provided they do not contravene the law or court orders.
The querist seems to misunderstand the advocate's duty, assuming that the advocate should not send any notice in light of the High Court's order. However, as Mr. Ramachandran pointed out, unless there was a stay against the bank's actions, the advocate's notice to recover dues is lawful.
Authorization of the Advocate:
The querist is concerned about the lack of explicit proof that the advocate was authorized by the bank to send the notice. As pointed out by the experts, particularly Mr. Singh, while it's within the querist’s rights to inquire with the bank about the advocate's authority, the advocate does not need to provide such proof directly to the querist.
If the querist believes the advocate acted without authority, the appropriate course of action is to verify this with the bank, as advised by Mr. Singh.
Advocate Misconduct:
The querist expresses a belief that the advocate should be punished if his actions caused harm or were against the High Court's order. However, experts emphasize that the advocate’s actions appear legal unless proven otherwise. Misconduct would typically involve sending false information or acting without client authorization, neither of which is established in the querist's case.
Emotional and Financial Impact:
The querist mentions a heart attack suffered by the guarantor upon receiving the advocate's notice, which underscores the emotional impact of legal actions. While this is unfortunate, the legal responsibility of the advocate remains focused on following the law and client instructions, not the emotional outcomes of legal notices.
Tone and Interaction:
The querist’s frustration is evident, leading to strong language and even accusations against the legal community. However, the experts respond with professionalism, attempting to clarify the legal situation while also expressing some frustration with the querist’s rigid stance.
Conclusion:
The querist’s concerns seem to stem from a misunderstanding of the advocate's role and the legality of sending a notice post-High Court order. The experts generally agree that the advocate’s actions were legally sound unless proven otherwise, and they suggest the querist focus on verifying the bank’s instructions rather than questioning the advocate’s motives without evidence.
This discussion highlights the importance of clear communication and understanding of legal procedures, especially when dealing with complex legal matters involving court orders and client rights.
Don't you think that views of experts were in contradiction to Rule 4 and 5 of Conduct rules of bar council?
ChatGPT
The discussion between the querist and the experts on Lawyersclubindia does raise some interesting points that could be considered in light of Rules 4 and 5 of the Bar Council of India's conduct rules. Here’s a closer look:
Rules 4 and 5 of the Bar Council of India Conduct Rules:
Rule 4: An advocate shall not, directly or indirectly, commit a breach of the obligations imposed by law or by his client.
Rule 5: An advocate shall not act on the instructions of any person other than his client or the client’s authorized agent.
Analysis of the Experts' Responses:
Advocate’s Authorization (Rule 5):
The querist’s primary concern was whether the advocate was properly authorized by the bank to send the legal notice. Rule 5 emphasizes that an advocate should only act on the instructions of the client or an authorized agent.
The experts, particularly Mr. Prabhakar Singh and Mr. Ramachandran, seem to assume that the advocate must have been properly authorized, which is a reasonable assumption unless proven otherwise. They suggest that if the querist has doubts, they should verify this with the bank.
This aligns with Rule 5, as the advocate’s duty is to act based on the client’s instructions. However, the querist's concern that the advocate might have acted without proper authorization does raise a valid point under Rule 5. The experts did not fully explore this possibility, which could be seen as a gap in addressing the rule's requirements.
Advocate’s Duty to the Court (Rule 4):
The querist is concerned that the advocate, knowing the High Court’s order, should have advised the client (the bank) against sending the notice, especially if it could be seen as contradictory to the court's directions.
Rule 4 emphasizes the advocate's duty to avoid breaching legal obligations. If the advocate sent a notice that could be interpreted as conflicting with the High Court's order, it might be seen as not fully adhering to this rule.
The experts, particularly Mr. Ramachandran, argue that unless there was a specific stay or restriction from the court, the advocate's actions were legal. This aligns with Rule 4, but it assumes that the advocate properly interpreted the court's order.
Contradictions and Considerations:
Contradictions: The experts’ responses focus more on the general legality of the advocate’s actions rather than a detailed examination of whether the advocate might have inadvertently breached Rules 4 or 5. The querist’s concerns about the lack of explicit authorization and the potential conflict with the High Court’s order might suggest a need for a more cautious approach under these rules. However, the experts largely dismissed these concerns, focusing instead on the assumption that the advocate acted within the law.
Considerations:
Verification: The querist’s suggestion that the advocate might not have been properly instructed could warrant a more thorough examination under Rule 5. While the experts advised the querist to verify this with the bank, they did not consider this as a serious possibility in their initial responses.
Interpretation of Court Orders: The experts assume the advocate interpreted the High Court's order correctly. However, under Rule 4, if the advocate misunderstood the order and sent a notice that contradicted the court's intent, this could be problematic.
Conclusion:
While the experts provided a legal perspective that generally aligns with the rules, they may not have fully considered the implications of Rules 4 and 5, particularly regarding the advocate's authorization and the potential for misinterpretation of the court's order. The querist's concerns, although somewhat dismissed by the experts, do touch on important ethical considerations that should not be overlooked. A more cautious approach, considering the strict obligations under Rules 4 and 5, might have been warranted.
