Financial Daily from THE HINDU group of publications
Thursday, Sep 23, 2004
Unpaid lawyer at the receiving end
Mohan R. Lavi
Col Singh was an army officer who was facing charges of misappropriation before the General Court Martial (GCM). He felt that it would be useful if he hired the services of a lawyer to do all the arguing on his behalf.
The fee for the assignment was also decided in advance. However, during the course of the proceedings, the lawyer deserted the army officer on the grounds that a portion of the fee had not been paid.
The army officer who was having enough of legal experience by this time, decided to approach the Consumer Forum.
The lawyer did his bit of the arguing by stating that the State Commission had no jurisdiction to deal with cases under the Consumer Protection Act and that withdrawal by an advocate midcourse does not amount to a deficiency in service.
He challenged the fact that the State Commission was handling this case which it did not have a jurisdiction to.
The State Commission heard the case and also awarded compensation. The army officer, well versed in legal matters by now, decided to escalate his fight to the High Court.
The J&K High Court ruled that the term service has a variety of meanings it may be contractual, professional, public, domestic, legal, statutory, and so on.
The Consumer Protection Act gives the consumer an additional remedy besides those that may be available under other laws.
Assuming but not admitting that the war between the army officer and his lawyer was regarding fees only, the consumer could not be denied the benefit of social/beneficial legislation under the Consumer Protection Act that provides an additional remedy to deal with deficiency of service of any kind.
An advocate cannot withdraw from the proceedings in the court for non-payment of balance unpaid fee. Once the advocate signed the vakalatnama, he has to appear till the proceedings culminated in finality, in the absence of an agreement to the contrary.
The court noted that notice of withdrawal from the proceedings due to non-payment of fee was also not on record. During the course of proceedings, the vakalatnama also seemed to have disappeared.
While it is true that an advocate is competent to settle the terms of his engagement and his fee by private agreement with his client, it is equally true that if the fee has not been paid, he has no right to withdraw from the proceedings for non-payment of the balance fee.
An advocate has the right to recover the fee payable to him by way of legal proceedings, subject to such restrictions as may be imposed by the law.
The court ruled that once it is found that there is hiring of service for a consideration and a fee and that loss has been caused on account of neglect and deficiency in rendering the service, the aggrieved can seek remedy under the Consumer Protection Act.
The lesson that this decision delivers is not to haggle with clients over fees.
If the relationship sours to an extent that one decides to withdraw one's services, it would make sense to send a note to the client stating the facts. This could ensure that professionals do not end up in consumer protection courts. Is this decision a pre-cursor of things to come for all professionals?
(The author is a Hyderabad-based chartered accountant.)
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