BAD Counsel - what to do ?

u have right to change the advocate, and also u can file complient for misrepresentation and deficit services in consumer forum as well as bar councel of delhi

It is the duly of every litigant to check the record of the lawyer and they should not go simply by their length in the legal field. Many times that yardstick proves illusory. Many times the freshers or the less experienced are better lawyer because they work hard to get established.

@ Padhma : Thank you for your suggestion. Can I file a case in the Consumer Forum ?  I thought that was for individual consumers only , while in this specific case I am representing my Company who had hired this lawyer ( we are a small partnership and the hiring was done by me only, based upon some recommendatinos from "friends" who later professed helplessness )

@valentine : Is there a way a litigant can check the record of a lawyer ? Such information could indeed be useful. Please advise.

u can take ur record at any time any stage of case, absolutely u can file complaint in consumer forum with proffs defnitely they can give u relief. but u have to file the all copies and u have to explain in writtenstatement about the stages of case, and how he mirepresented.

IT IS ADVISIBLE TO KINDLY FILE REVIEW OF THE SAID ORDER OF COST.THERE IS A LEGAL REMEDY AVAILABLE FOR YOU.YOU MAY MENTION ALL FACTS AND YOU WILL SUCCEED. YOU HAVE TO DEFEND YOUR CASE AGAINST YOUR OPPOSITE PARTY.KINDLY DO NOT GET INVOLVED IN TO UNNECESSARY LEGAL BATTLES.YOU MAY BE REQUIRED TO MOVE FROM ONE COURT TO ANOTHER.IT IS ADVISIBLE TO DISCUSS THE MATTER WITH CONCERNED AND SETTLE THE SAME MUTUALLY.GOOD LUCK.

Dear

Don't pick a fight with the lawyer. Forget and forgive. However, you may raise a mercy application narrating how you were misguided and how the matter had gone beyond your reach. Before that you will have to prove yr case against the opponent. If U r capable U can fight on your own as party in person but that's risky. Contact the Bar Association, President, and work out the things. 

Yes, u can move complaint in the consumer forum. Advocates have to proivide service to their clients and hence they come under the jurisdiction of the Consumer Forums and Commissions. U can file a complaint on the ground of deficiency of service. But do u think it would be wise to do it? It is left to u. Sorry, you had to bear the loss.

Thanks for everyone's advise. Well the facts - as are now clear from the Case File of which now ( copied on 19^th January 2011 ) I have certified copies from the Court  - are as under.

( THANK YOU FOR YOUR PATIENCE IN READING THIS LONG MESSAGE.  BUT I THINK IT IS IMPORTANT – NOT ONLY FOR LAWYERS BUT EVEN ALL OTHERS WHO MAY READ THIS – AS TO HOW  A BAD LAWYER  AND YOUR TRUST IN HIM CAN SPOIL YOUR CASE ! )

a) In the FIRST hearing  on 4^th May 2009  ( I was not in court on that day since my lawyer told me not needed ),  My Counsel had sent in a "Proxy "and the Court Notes of the day state :

"Ld Counsel for Def states copies of documents not furnished. Be furnished in the course of the day. WS to be filed on record within prescribed period of limitation . To come up for 27/7/2009."

My Counsel NEVER told me above. He simply said the OP Lawyer was told to file a reply by next date.

Later, he told me one page of our plaint was not filed with the Court and we have to make a new plaint. I never realized how serious was this matter. In the Plaint Copy he had given earlier to me all pages were correct and in order..

Actually what had happened was that  my Counsel had omitted  Page No. 6 of the plaint  in the Plaint given to Court and put Page No. 5  twice by mistake.  Page No. 6 just says that the jurisdiction is Delhi as printed on our Invoice and then adds the legal and prayer clause.

Anyway we made an Application U/O VI, Rule 17 read with Section 151 CPC on  24^th July 2009 pointing out above and making an amended plaint.

b) On 27/7/2009 me and my counsel were both in the Court . OP Counsel was not there and the Ld Judge ruled :

" Pt in Person with Counsel. None has appeared for Defendant. WS also not placed on record despite specific directions. Prescribed period  of limitation for filing Defence has already expired. Defense of Defendant stands struck off. Put up for evidence of Plaintiff on 29/9/2009 "

My counsel then told me the case is almost won, just send me the E-mails etc. between you and client ( of which I had already forwarded on mail copies to him ) and in the next hearing case will be decided. He also asked for his balance money which I sent him ( by Cheque ) some 15 days later. So he was paid in FULL.

c) On 29^th Sept. 2009 I and my Counsel were both present in Court but the Ld Judge was on leave. We got another date of 3^rd Dec. 2009 and then went left.

( I have got all the Court File papers Copied on 19^th Jan. 2011. They tell me that the OP Lawyer inspected the Case File on 13th August. .

Then , on  29^th Sept. 2009, AFTER we had left, he filed an application on behalf of the Defendant for setting aside ex-parte proceedings. This application says that on 4^th May 2009 itself he had pointed out in the Cout that the papers in the plaint supplied to the Defendant were not in proper working order. The maintainability of the case was also discussed. The Court was pleased to order the Plaintiff’s counsel to supply a fresh copy of the plaint and then  the Defendant to file their Written Statement within the due course of time .

But he is YET to receive the Plaint Copy - although he has visited the Counsel for Defendant in his chambers for the same thrice but the Counsel  of Plaintiff has postponed the matter on one false pretext or the other and has not supplied the Copy of the Plaint with annexure/ documents.

So the Court should SET ASIDE  the Exparte Order passed on the Last Date of Hearing and ask the Counsel for the Plaintiff why he has not supplied the complete set as per undertaking given on 4th May 2009 and then give fair opportunity to Defendant to file their WS )

My Counsel NEVER told all above in detail. Much later , only on 5^th July 2010 he made a passing reference that the OP has put in an application for setting aside the exparte order but any case he has put a reply to that !!

d) On 3^rd Dec. 2009 I could not come to the Court . I had told my Counsel in advance . The Df Counsel was present that day and the  Court Notes say that  the Copy of Df’s application dated 29^th Sept. 2010 was given to my Counsel that day. The case was “Put up for reply and arguments on 15 Feb. 2010. Defendant is also to appear in person”.

My Counsel did NOT tell me that such an application has been filed by the Defendant. He just told me we have a new date for 15^th Feb. 2010 !!

e) On 15^th Feb. 2010 I had a sudden work and I recalled about this date only about 11 AM. I  immediately called my Counsel and he said “Oh, you are also not there ! Let me look into it ”

The Court Record for that date shows :

“ Counsel for Defendant present. Plaintiff is absent since morning despite repeated calls. No reply filed to the application of the Defendants. At this stage , proxy counsel appeared on behalf of plaintiff company and seeks adjournment. An application is moved. Adjournment is vehemently objected by the Counsel for Defendant. Heard. The matter stands adjourned for appearance of plaintiff and for filing reply to the application of defendant, subject to cost of Rs. 5,000/=. Put up for 5^th July 2010 “

In the afternoon when I checked with my Counsel all he said was that “since I ( the plaintiff ) was not present, Court has put some cost. He will check the details and revert”. He never called back ( in any case, all through it had been me only running after him ). When I called him again, he said a cost of Rs. 5,000/= has been put since I the plaintiff was absent but he ( my Counsel ) will look into it and file an application but I should be present in Court on 5^th July 2010.

f) On 5^th July 2010 I reached Court. My Counsel came late ( he NEVER came on time !! ) , The Ld Judge was not there and after some time my Counsel left saying that he is in the Court Premises itself and I should call him as soon as the Judge comes. When the Judge came I frantically called my  Counsel. He would not pick up the his Cell Phone. I sent him an SMS. Meanwhile my case was called and the OP Lawyer was there.

I told the Ld Judge to please give me some time so that I can call my Lawyer who is in the Court premises itself. But she did not listen to me and just kept the file to one side and said unless the fine was paid up the case would be dismissed there and then. Having no idea what to do, I paid up the fine in front of the Judge to the OP’s lawyer.

I also met the OP lawyer outside the Courtroom that day and he bluntly told me I have a bad counsel. He  also suggested we should “compromise” the case rather than get into all this and I took his Cell Phone number for the same, if need be.

After some time my lawyer came and told me I should not have given the money !!!

The Court Notes for 5^th July 2010 say :

“ Present AR for plaintiff. Counsel for Defendant. In between an application dated 12/3/2010 filed for waiver of costs. Vehemently opposed by the Counsel for Defendant. Heard. AR seeks withdrawal of his application. On his request application stands disposed of as having withdrawn . Previous cost paid. On his request put up for arguments on application of Defendant on 17^th Sept. 2010. ”

( I NEVER asked for a withdrawal of application – I had not even seen it till that time and did not know what it contained !!  The Ld Judge said my case will be dismissed unless I paid up , which is what I did !! )

As I know from the Court files NOW ( after I got the whole file copied on 19^th Jan. 2011 )  , indeed on 12/3/2010 my Counsel had filed  an application under 151 CPC for waiver of Cost in which essentially he says

-         On 15/2/2010 Pt’s Counsel could not attend since be was busy in some other case. He instructed his colleague on phone to apprise the Hon’ble Court  that “as per records , the defendant was never proceeded exparte and on the contrary his defence was struck off vide order dated 27^th July 2009 and no reply is required to be filed .The said colleague was further advised by the Pt Counsel that in order to avoid any delay in the matter the Hon’ble Court may dispose of the application as it thinks fit”.

-         But the Colleague who was new to practice could not describe the factual position and merely sought for adjournment.

-         On which the Court adjourned subject to payment of cost of Rs. 5,000.

-         It was further submitted that in absence of reply by the Pt, at most Df application   ought to have been allowed instead of imposing cost of Rs. 5000 on Pt without his fault especially when the suit is only for recovery of Rs. 11,292/=.

-         It  was stated that the Df’s application as framed was not sustainable since no order proceeding exparte was ever passed and on the contrary the Defence of the Df was struck off on 27^th July 2009 which was never challenged or sought to be recalled. It was obligatory on Df’s part to file Written Statement along with an application for recalling of order dated 27^th July 2009 along with further application for condonation of delay in filing the Written Statement.

Now my Counsel said we will have to make ANOTHER application for  Review and Recall of Order dated 5^th July 2010. I kept after him for the same and finally on 1^st Sep. 2010 he made an application to which both he and I signed.

g) On 17^th Sept. 2010 the case was transferred to new Judge at Saket New Delhi premises.  I reminded my Counsel several times to come on time. But when my case was called he was not present !! Even the Defendant Counsel was not present. The Court took on record our Application of 1^st Sept. 2010 and said “AR of the plaintiff is directed to supply copy of the same to Defendant so that reply can be filed by the Defendant. Matter be put up for appearance of Defendant, reply and arguments on application of plaintiff for recalling the order dated 5^th July 2010 and arguments on application moved on behalf of the defendant, on 13 Dec. 2010 “.

As soon as I came out of the Court Room I saw my Counsel coming. He asked me what happened and I explained best I could. He said he will deliver the copy of our Application of 1^st Sept. 2010 to the Defendant Counsel since that is his job.

h) On 13^th December he again promised me he will come on time to the Court but when my case was called he was not there !! The Defense Counsel was there and I was SHOCKED to learn from him that he has YET to receive our Application of 1^st Sept. 2010 ! The Judge asked me about it and I said my Counsel was supposed to do it ! The Court asked me to if I had a copy of the same – which I had at the time – and told me to give it here and then to the Defense Counsel..  the Df Counsel sought time and court  gave him  14 days and said also to give advance copy to the plaintiff against proper receipt. Case put for  reply and argument on application for review and recall moved by plaintiff on 5^th Feb. 2011.

My Counsel had still not reached the Court . When I called him again he asked me what  happened !!  I asked him why he did not deliver the Copy of our Application to the Defence Counsel. He simply cut the phone !! Then he won’t lift it for the next 15-20 minutes, neither did he reach the Court. After 20 minutes when he lifted his Cellphone again I said I want my file back. He said “come tomorrow at 10 AM to my office and take it “ and cut the phone !!!

That was the last time I spoke to him.  On 14^th December 2010 I sent him an E-mail withdrawing our Authorization and summarizing all his conduct. Till date, that E-mail is not answered.

Meanwhile  I reminded the Df Counsel ( as I had his Cellphone number ) and he gave me the Copy of his reply on 5^th Jan. 2011 in which he made the following points :

- Our Review Application for recalling the Order dated 5^th July 2010 has been filed onr 1^st Sept. 2010 which is beyond the limitation period and so not tenable.

- So far the Copy of the Plaint asked for by the Defense Counsel in the FIRST hearing on 4^th May 2009 is YET to be supplied to him. The plaintiff can not be allowed to take advantage of his own wrongs.

- The AR of the plaintiff had admitted his mistake and paid up Rs. 5,000 on 5^th July 2010.

- The Conduct of the Counsel of Plaintiff was not good since the beginning of the Case

Also, again he told me it’d be better for me to Compromise the case. He said best he can get me is the disputed amount which is Rs. 11,292/=

I decided to take matters in my own hand and on 21^st January got all the Case File papers copied from which I have summarized all above.

I realized all the mistakes my counsel had done when I read the file in detail after 19^th January 2011. Some others also, whose opinion I value highly  told me I should compromise. So I told the Df Lawyer accordingly.

I ) On 5^th Feb. 2011, in front  of the Judge I agreed to a COMPROMISE and the Df lawyer has given me a cheque for  Rs. 11,292/=

So, this case is CLOSED.

BUT my questions STILL are :

a) Is such conduct expected from lawyers and should one just accept it ?

b) Does the lawyer community condone such conduct ? If not what recourse I have, besides getting into another legal battle with a lawyer ?

c) No one wants to get involved into legal battles, more so against lawyers ! But does that mean the lawyers can act with impunity and misinform / misguide their clients and should get away with it ?

d) What did I do wrong ? Is there anyway I could have prevented it  AFTER I had hired a lawyer and was trusting him ?

I request all lawyers – whatever their seniority  – to read above and ponder over it. For a few bad apples the whole community becomes suspect ! I think the Community needs to put in the strongest possible safeguards to ensure frauds and incompetents calling themselves lawyers do not get into this practice.

THANK YOU  FOR READING THROUGH THIS LONG MESSAGE !!

Hi Hardeep

I am also a plaintiff in one case and my first lawyer was not good man and lawyers. Than I changed my lawyer and I have to pay full fee again and till now in last seven years there are around 50 dates. I took leave on each date and attend my case but my patience is also running out. What I feel that lawyers charges for dates not to fight the case. Any way since your case resolved, please let it go and live peacefully.

Hi Sanjeev

Thanks much for reading through and responding !

Yes indeed it is apparent that the Indian Legal System has become self-serving - it is in the interetst of all - except the innocent / suffering party that the process is protracted as much as possible. Rather than the innocent, it is the guilty parties who seem to be thriving !

Perhaps it is time that the System also is paid on a performance basis - as is the case in Europe/ US  where lawyers can legally charge a "success" fee. That may encourage the best of the breed to come out publicly while weeding out the incompetent.

In the higher legal cricles, I hear, such thoughts are already arising. When they crystallise is dificult to say but at the very top some changes are happening as we can see with the recent ( supposed ) fall of the  political"high and mighty ".

I am still awaiting the answers of some lawyers to the questions I had raised. I request them to respond in the spiirt of having a mature discussion aimiing at improving whatever the lacunas the System - or the people in it - may have.

Hardeep

Hello Mr. Hardeep

                                      i m agreed with padma's opinion u file a complaint case against ur lawyer in consumer forum and u will succeed there with this judgement passed against a lawyer. u can search it at www.indiankanoon.org/doc/562637/

It is a pity that there are dishonest and insincere lawyers roaming the streets. However,  granting "success fee" in Inida would be doing injustice to many good lawyers. Here judgements are being fixed like "match fixing". Especially in the lower courts judgement are pre-determined. Who cares for the facts or vehement arguments made in a first class manner? Famous saying in the legla parlance is "face value" or  "cash value". In this field - though it is called a learned profession - gold medalists and meritorious lawyers are leading a briefless career. When I was in the 7th Std. in the school we had a poem in our English Language Course - "The Briefless Barrister" and after so many years now I have realised how true that peom was!

Hi Everyone

Thanks for reading and commenting upon this thread....

@Shailendra : Thanks much for providing the relevant cases. In case I proceed further they would indeed be useful.

Recently I have won a case in Consumer Court , proceeding on my own without a lawyer so your inputs encourage me to look in that dicetion, if need be.

@Valentine : I am not clear how would a good lawyer suffer if success fee is given.  On the other hand , a lawyer would pick up the case only after due scrutiny and if it is not workable, advise the client not to proceed further, thereby avoiding unnecessary litigation.  If it is workable, then he would put in his best efforts since he'd be paid  a major portion of his fee only if he succeeds.  Of course there'd be "fixers"everywhere - including the lower courts for example. And then a Success Fee Model would encourage the right litigants to proceed with the case even if a lower court rules adversely since they would have the resources left to pursue the case in the higher courts. Over time, the better lawyers would gain a reputation in their respective domains, thus helping the system all round.

I have been to the Court quite afew times over the last 2-3 years and have seen lawyers who can not even speak Hindi/ English, what to argue their cases ! Should these lawyers be "practicing"to begin with ? And isn't their "practice "on hapless "victims"they acquire, obviously, by misrepresenting their skills ?  Such a lawyer would automatically be weeded out in a Success Fee model, in a very quick time.

Just my opinion, welcome all views.....

@Harsh : Thanks much for your offfer of help. If need be, I'll contact you.

Hardeep

Dear Hardeep

Do U want to say that the advocates who are not getting the desired results are bad advocates? In India a person gets business and an advocate gets briefs depending upon which community he belongs to. Hardly any consideration is given to good or bad advocacy. The Aam Adami does not know the intricacies of law and the tricks of practice. As in politics so in any business/profession. I have been in this field since many many years and I have seen that the cunning advocates with vicious network get the most of cases. Their success depends upon the nexus with various people like politicians, police, judiciary, their own kith and kin in higher positions etc. etc. There are end number of reasons for getting results and it has nothing to do with the goodness of the advocate. The big names in this field hardly stand before the judge and get the result in their favour. Are they really good advocates? Do they deserve to get success fee? If success fee is introduced such unscrupulous people will flourish becasue of their pull and push and not becuase of anything esle. Good advocates will indeed suffer. There is not a grain of doubt about it.