Counsel and Client

No statutory law explicitly defines "Wakalatnama", however, in light of the provisions of Order III, Rule 4, C.P.C., in conjunction with Section 22(3) of Legal Practitioners and Bar Councils Act, 1973, it can be reasonably concluded that a Wakalatnama is a written document signed by a person or by their recognized agent, or by another person duly authorized by them, appointing an advocate to appear or act on their behalf in any Court

Appointment of an advocate through Wakalatnama grants that advocate an authority to represent and act for the appointing party in any Court.

Power of attorney (Vakalatnama) does not confer impliedly the power of compromise on the counsel or to make any statement to withdraw suit or to get the suit decreed (on basis of compromise), until and unless such powers have been specifically given to the attorney.

Counsel who accepts a dock-brief and for a fee paid by the state undertakes to defend a prisoner without trying to know anything about the case offends against the tradition of his profession

If such counsel is not ready for the defense, it is his duty to ask for time and if necessary for adjournment

Unseeming hurry makes defense in important cases of crime impossible and is likely to affect result of the trial.

Lawyer is not agent of his client but is a spokesman and advisor to his client.

Revision was allowed.

Trial Court and Lower Appellate Court declined to set aside judgment and decree in exercise of powers under S.12(2), C.P.C.

Plea raised by petitioners was that Vakalatnama used was issued for some other purpose and not for litigation in question

Validity

Vakalatnama showed that title of case in question was specifically written, which suggested that Vakalatnama/Power of attorney was issued to counsel for contesting suit in question

Vakalatnama/Power of attorney gave authorization to enter into arbitration, settlement or compromise which was expressly been conferred on the attorney/advocate

Attorney or advocate had not committed fraud with petitioners, who failed to make out a case of fraud or misrepresentation out of the record against respondents or anyone else

When an attorney/advocate had defrauded a person, the only remedy available to that person was to sue his attorney for damages or recovery of any such amount on his part

Other parties could not be dragged into litigation just because of the fact that an advocate had allegedly committed some fraud with any person

Application under S. 12(2), C.P.C. was moved by petitioners beyond prescribed period of three years

High Court declined to accept the plea that petitioners had learnt about judgment and decree in question a few days before filing of application under S.12(2), C.P.C.

Constitutional petition was dismissed, in circumstances.

Any unauthorized statement giving illegal benefit to a person if got recorded by counsel against record as well as law, such statement cannot be considered valid/qualified admission in that regard.

Exact scope of such duty depended on the circumstances, including the object of the mandate, the client's characteristics and the expertise the lawyer claimed to have in the field in question

When lawyers did provide advice, they must always act in their clients' best interests and meet the standard of the competent, prudent and diligent lawyer in the same circumstances

Any advice lawyers gave that exceeded their mandate may, if wrongful, engage their liability.

Whenever lawyers recommend other professionals, or expressed confidence in them, they must meet the standard of a reasonably competent, prudent and diligent lawyer in the same circumstances

Lawyers should make such inquiries as would enable them to acquire reasonable knowledge of professionals they recommended unless they already had relevant experience dealing with them

Not every professional error made in making such inquiries or in failing to make them would amount to a fault if the lawyer's conduct did not depart from the standard expected, and courts must be careful not to assess recommendations in light of facts discovered subsequently

Moreover, referring lawyers were not required to monitor the advice given by the professionals they recommended, as this would defeat the purpose of referral. [Minority view]

Clients suffering financial losses due to investments in fraudulent ventures of advisor who had been recommended and continually supported by the lawyer - Lawyer failing to perform adequate due diligence, misrepresenting investment information, and committing breaches of confidentiality

Said financial advisor was also a personal friend of the lawyer

Lawyer's clients invested millions of dollars with the recommended financial advisor's firm - Lawyer repeatedly endorsed the advisor and encouraged his clients to make and retain investments

Subsequently the recommended advisor and his associate disappeared with the savings of numerous investors, including the respondent

Respondent instituted legal proceedings, claiming that the lawyer and his law firm were professionally negligent in two ways: first by breaching their duty to advise her and second, by disregarding their duty of loyalty to her

Trial judge dismissed the claim, however the Court of Appeal allowed the appeal and ordered that clients be compensated for losses - Question as to whether Court of Appeal expanded professional obligations of lawyers who referred clients to independent advisors

[Per Gascon, J (Majority view): Relationship between lawyers and their clients could usually be characterized as a contract of mandate

Although lawyers, as mandataries, did not guarantee the services rendered by professionals or advisors to whom they referred their client, they must nevertheless act competently, prudently and diligently in making such referrals, which must be based on reasonable knowledge of the professionals or advisors in questions

Lawyers who referred clients to other professionals or advisors had an obligation of means, not one of result; they must be convinced that the professionals or advisors to whom they referred clients were sufficiently competent to fulfill the contemplated mandates

Referral was not a guarantee of the services rendered by the professional or advisor to whom the client was referred, but it was also not a shield against liability for other wrongful acts committed by the referring lawyer

In the present case, the lawyer had done far more than merely make a referral, and it was the entirety of his conduct that led the Court of Appeal to hold the lawyer and his law firm liable in the circumstances

When properly assessed as a whole, the evidence revealed that the lawyer's advice and reassurances were all part of a single continuum, and that placing them in separate silos would be artificial

Regardless of the scope of his original mandate, the lawyer voluntarily chose to provide (and be paid for) his advice and reassurances to his clients over the four years leading up to the collapse of the financial advisory firm

Having so chosen, he could not escape liability by pointing to the narrow scope of his original mandate

Respondent's trust in and reliance on the lawyer was based on recommendations, endorsements and reassurances that remained constant and uniform over the years

Lawyer actively encouraged her reliance by providing multiple investment recommendations and professing to be knowledgeable in that field

Lawyer breached his duty to advise by recommending a non-diversified investment in offshore hedge funds to clients whose primary goal was to preserve the capital, by recommending financial products without performing due diligence and by repeatedly reassuring his clients that their investments gave them security of capital

Court of Appeal's decision did not broaden the basis of liability for lawyers who referred clients to other professionals or advisors as it had basis to intervene and find that the lawyer had failed to advise his clients as a competent, prudent and diligent lawyer would have done

Proving breaches of a lawyer's professional duties did not suffice to establish civil liability in the absence of a causal link to an injury (suffered by the client).

Lawyers' duty to advise generally included obligations to inform the client of the relevant facts, to explain available options and their implications, and to recommend a course of action

Yet, the precise content of such duty was highly dependent on the circumstances, including the scope of the mandate, the obligations assumed by the lawyer and his or her areas of expertise.

Lawyers had a duty to avoid placing themselves in situations in which their personal interests were in conflict with those of their clients

Duty to avoid conflicts of interest was a salient aspect of the duty of loyalty they owed to their clients

Duty of loyalty shielded the performance of the lawyer's duty to advise clients from the taint of undue interference.

Client's ability to rely on advice given by his or her lawyer was central to the lawyer-client relationship and a client's acceptance of a lawyer's negligent advice could not shield the lawyer from liability

Fraud committed by a third party also did not shield from liability persons who failed to take required precautions

Where the risk of a decline in market prices or fraud by a third party materialized, and where lawyers had failed to abide by the standards of professional conduct that were meant to protect their clients against these very risks, they may be liable for their clients' investment losses. Per Côté, J, dissenting:

Analysis of an alleged conflict of interest was inherently fact-based and alleged conflicts must be assessed on a case-by-case basis

Not every potential violation of the duty of loyalty would give rise to an action in civil liability

Court must analyze the nature and the circumstances of the alleged conflict for the purpose of characterizing the violation and, if warranted, determining the appropriate remedy. [Minority view] Per Côté, J

Accused is not bound of admission of his counsel.

Defect, if any, in non-signing of Vakalatnama by a counsel was always treated to be a curable defect.

Appellant came to the United States (U.S.) from a foreign country as a child with his family and lived in the U.S. for thirty-five years legally, though he did not become a citizen

Appellant got involved in the drugs trade, and was arrested and charged with possession of drugs with intent to distribute

Government's case against the appellant was very strong, and on the advice of his attorney, appellant pleaded guilty in exchange for a lighter sentence

Appellant's attorney repeatedly assured him that he would not be deported as a result of pleading guilty, however the guilty plea by appellant constituted a conviction of an aggravated felony, which was a deportable offense under the (US) Immigration and Nationality Act

When appellant learnt of his deportation, he moved to vacate his conviction, arguing that his attorney had provided constitutionally ineffective assistance under the standard established in Strickland v. Washington, 466 U.S. 668, which provides for a two-pronged test: whether the attorney's advice was deficient, and whether the deficiency prejudiced the defendant

Appellate Court below upheld appellant's conviction and determined that he could not satisfy the second prong of the Strickland test because there was not sufficient evidence that the outcome of appellant's case would have been substantially different had he known about the risk of deportation; [Per Roberts, C.J.], held, that the Sixth Amendment to the United States Constitution guaranteed a defendant the effective assistance of counsel at "critical stages of a criminal proceeding," including when he entered a guilty plea

To demonstrate that counsel was constitutionally ineffective, a defendant must show that counsel's representation "fell below an objective standard of reasonableness" and that he was prejudiced as a result [Strickland v. Washington, 466 U.S. 668, 692]

Under the Strickland test, when a defendant claimed that his plea was caused by ineffective assistance of counsel, the defendant could demonstrate that he was prejudiced by showing a reasonable probability that, but for his counsel's errors, he would have gone to trial rather than accepting a plea

Relevant question was not whether the defendant would have been acquitted at trial but whether, had the defendant been properly advised, he would have chosen to exercise his right to a trial

When a defendant alleged his counsel's deficient performance led him to accept a guilty plea rather than go to trial, the court did not inquire whether, had he gone to trial, the result of that trial would have been different than the result of the plea bargain

Court could not accord any presumption to judicial proceedings that never took place

Defendant's decision making may not turn solely on the likelihood of conviction after trial

Court could not say that it would be irrational for someone in appellant's position to risk additional prison time in exchange for holding on to some chance of avoiding deportation

Even if a defendant were highly likely to lose at trial, as was the position in the present case, inadequate assistance of counsel may still prejudice his ability to weigh his options and their potential consequences in deciding whether to take a plea

As said inquiry was necessarily a fact-specific one that must be conducted on a case by-case basis, the Court could not create a sweeping, per se rule

Appellant had successfully demonstrated that avoiding deportation was a determinative issue in his decision-making

Both the appellant and his counsel testified that deportation was the determinative issue to the appellant; his responses during his plea colloquy confirmed the importance he placed on deportation; and he had strong connections to the United States, while he had no ties to the foreign country he had immigrated from

Appellant in such circumstances met the standard to demonstrate that he suffered prejudice under the Strickland v. Washington, 466 U.S. 668, standard for ineffective assistance of counsel

Appellant had established that he was prejudiced by erroneous advice of his counsel, demonstrating a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial

If one wants to represent his/her client as 'advocate' then he (advocate) is not legally entitled to examine himself in place of his party (client), as for such purpose he has to unclothe his status as 'advocate' and has to clothe with 'attorney/authorized agent'.

Lawyer is not supposed to take place of his client when seeking any substantial relief which the client wanted from the Court

Lawyer cannot swear affidavit of facts relating to circumstances of his client in which need for an order from Court of law was felt for the client even on the advice of lawyer

Such facts and circumstances can only be in the personal knowledge of the client when neither application nor affidavit in support of application is signed by client.

Chairman Bar Council was directed to initiate inquiry and action against the counsel for his failure to discharge his duty as an advocate.

Advocate General though was an authorized agent of Government, however in peculiar circumstances, if private counsel was engaged, may appear and conduct cases on behalf of Government who was entitled to get assistance of counsel of its choice unless disallowed by law.

Primary duty of counsel was not just to defend his client to the best of his ability but to uphold letter and spirit of the Constitution to the best of his understanding in order to do right and justice, according to law without fear or favour

Counsel was first an officer of court and should thus assist Court as guardian of the Constitution and law in imparting justice

Only function of legal profession was to promote administration of justice

Practice of law was not trade and brief no merchandise

Lawyer was obligated to observe carefully and with extreme delicacy those norms which made him worth of confidence.

Fact that petitioner retained him as his counsel up to the last moment goes a long way to show confidence in such counsel

High Court observed that in such circumstances petitioner had to bear responsibility for acts and omissions of his counsel and he could not turn around to distance himself from questionable conduct of his counsel.

Entire legal system would collapse if the members of the Bar were compelled to disclose about any fact, which formed part of the privileged communication

Counsel-client privilege enjoyed a pivotal role in the legal system with the result that no authority was permitted to enquire from an advocate about any matter which he had come across during the course of his engagement with his client

Counsel, opting to share anything with somebody about which he came across during the period of his engagement by a particular party, would not only lower down the dignity of the profession but would also be guilty of misconduct

Nobody, while sharing information/material in respect of a particular matter, would depend upon his counsel, if such practice was permitted to be followed

Court could not allow a public functionary to force a counsel to disclose the antecedents of his client, which fell under the privileged communication.

Entire legal system would collapse if the members of the Bar were compelled to disclose about any fact, which formed part of the privileged communication

Counsel-client privilege enjoyed a pivotal role in the legal system with the result that no authority was permitted to enquire from an advocate about any matter which he had come across during the course of his engagement with his client

Counsel, opting to share anything with somebody about which he came across during the period of his engagement by a particular party, would not only lower down the dignity of the profession but would also be guilty of misconduct

Nobody, while sharing information/material in respect of a particular matter, would depend upon his counsel, if such practice was permitted to be followed

Court could not allow a public functionary to force a counsel to disclose the antecedents of his client, which fell under the privileged communication.

No rule prevented a counsel from appearing on behalf of a party in a case in which he (counsel) had at some earlier stage (of the proceedings) passed an order as a Judge.

In case of any negligence on the part of counsel, parties cannot claim that they are not held responsible, nor any negligence on the part of counsel absolve parties from prosecuting or defending the matter.

Duty of client would be to keep himself abreast of proceedings in his case and remain in touch with his counsel for such purpose, otherwise he would have to suffer for negligence of his counsel being his agent

Principles.

Knowledge of counsel would be knowledge of client.

Availability of legal advice privilege depended on the character of the advice which the client sought and the circumstances in which it was given, and not on the adviser's status, provided that the advice was given in a professional context

Advice on tax law from a chartered accountant would attract legal advice privilege in circumstances where it would have done so had it been given by a barrister or a solicitor

Legal advice privilege was attached to any communication between a client and his legal adviser which was made for the purpose of enabling the adviser to give or the client to receive legal advice; which was made in the course of a professional relationship, and which was made by member of a profession which had as an ordinary part of its function the giving of skilled legal advice

Various professions existed whose practitioners gave skilled legal advice on tax as part of their ordinary professional functions

Accountants were amongst such practitioners, therefore, any distinction between some skilled professional advisers and others was not only irrational, but inconsistent with the legal basis of the privilege

Recognising that legal advice privilege was attached to legal advice given by accountants would not involve any change to the principles governing the availability of the privilege, instead it would only involve recognising the fact that much legal advice falling within such principles was nowadays given by legal advisers who were not barristers and solicitors but accountants

Legal professional privilege was a creation of the common law, whose ordinary incidents were wholly defined by common law, therefore, in principle it was for the courts of common law to define the extent of the privilege

Appeal was allowed and case was remitted to the High Court to decide whether the material/documents requisitioned by the tax inspector would have been privileged if a solicitor or barrister had performed the functions that the accountants performed, and to quash the notices if it would have been.

Where legal professional privilege was attached to a communication between a legal adviser and a client, the client was entitled to object to any third party seeing the communication for any purpose, unless the client had agreed or waived its right; or a statute provided that the privilege could be overridden; or the document concerned was prepared for, or in connection with, a nefarious purpose, or one of a few miscellaneous exceptions applied.

Legal advice privilege was conferred in support of the client's right to consult a skilled professional adviser and not in support of a right to consult the members of any particular professional body

Where advice on tax law was sought from and given by an accountant it should be subject to the same legal advice privilege attached to legal advice given by a member of the legal profession

In modern conditions accountants had the expertise to advise on tax law and it was firms of accountants rather than firms of solicitors who gave such advice and represented clients in disputes with tax authorities on many aspects of their tax affairs

Legal advice privilege extended to advice given by members of a profession, which had as an ordinary part of its function the giving of skilled legal advice, however such members must be part of a properly regulated professional body

Appeal was allowed and case was remitted to the High Court to decide whether the material/documents requisitioned by the tax inspector would have been privileged if a solicitor or barrister had performed the functions that the accountants performed, and to quash the notices if it would have been.

If legal advice privilege was determined not by the profession to which the adviser belonged but by the function that he was performing, it would amount to changing the ambit of the privilege, and would also be a significant change because the privilege as generally understood had clearly defined limits

Courts were not best placed to assess how profound a change it would be if legal advice privilege was extended to tax advice given by chartered accountants, and for assessing whether there were good reasons of policy for making such a change and what protections, if any, were needed to ensure that the ambit of the privilege was kept within limits that were acceptable

If there were reasons of public policy for making such a change, the matter should be left to the Parliament

Appeal was dismissed accordingly. [Minority view]

Legal advice privilege should, as far as possible, be based upon a principle which was clear, certain and readily understood

Extending legal advice privilege to any case where legal advice was given by a person who was a member of a profession which ordinarily included the giving of legal advice, would create uncertainty in the scope of the privilege

Debate as to whether particular professional persons, in particular situations, would or would not fall within the scope of legal advice privilege, would detract from the certainty and clarity which presently existed in the said privilege

Appeal was dismissed accordingly.

Legal advice privilege applied to all communications passing between a client and its lawyers, acting in their professional capacity, in connection with the provision of legal advice, i.e. advice which related to the rights, liabilities, obligations or remedies of the client either under private law or under public law.

Legal advice privilege was based on the need to ensure that a person could seek and obtain legal advice with candour and full disclosure, secure in the knowledge that the communications involved could never be used against such a person

Legal advice privilege was conferred for the benefit of the client, and might only be waived by the client; it did not serve to protect the legal profession

Legal advice privilege existed to ensure that there was full and frank communication between attorneys and their clients, which promoted broader public interests in the observance of law and administration of justice

Principle that communications between clients and lawyers, whereby the clients were hoping for the assistance of the lawyers' legal skills, should be secure against the possibility of any scrutiny from others, whether the police, the executive, business competitors, inquisitive busybodies or anyone else was founded upon the rule of law.

Company refusing to disclose said documents on the ground that same related to legal advice given by the chartered accountant, therefore, they were covered by legal advice privilege

Question as to whether legal advice privilege applied to legal advice given by a professional other than a member of the legal profession

Appellant-company challenged validity of notices served by tax inspector by filing an application for judicial review

High Court rejected application for judicial review on the ground that, although the disputed documents would have attracted legal advice privilege if the advice in question had been sought from, and provided by, a member of the legal profession, no such privilege extended to advice, even if identical in nature, provided by a professional person who was not a qualified lawyer

Court of Appeal upheld the decision of the High Court

Validity

Main issue in the present appeal was whether legal advice privilege should attach to communications passing between chartered accountants and their client in connection with expert tax advice given by the accountants to their client, in circumstances where legal advice privilege would attach to such communications if the same advice was being given to the same client by a member of the legal profession

Universal belief was that legal advice privilege only applied to communications in connection with advice given by members of the legal profession

Legal advice privilege should not be extended to communications in connection with advice given by professional people other than lawyers, even where that advice was legal advice which that professional person was qualified to give

Various laws made by Parliament also implied that legal advice privilege was limited to advice given by lawyers

Allowing present appeal filed by appellant-company would amount to extending legal advice privilege beyond what were currently, and have for a long time been understood to be, its limits

Extending legal advice privilege to any case where legal advice was given by a person who was a member of a profession which ordinarily included the giving of legal advice would likely lead to a clear and well understood principle becoming uncertain, because it would be unclear as to which occupations would be members of a profession for such purpose

Further it was also unclear as to how a court would decide whether a profession was one which ordinarily included the giving of legal advice

Where professionals, other than members of the legal profession, give legal advice, it will often not represent the totality of the advice, and it might be difficult to resolve, as to whether, and, if so, in respect of which documents, legal advice privilege could be claimed

Difficulties might also arise in deciding how to deal with documents which contained legal and non-legal advice

Question as to whether legal advice privilege should be extended to cases where legal advice was given from professional people who were not qualified lawyers raised questions of policy which should be left to the Parliament, with its wide powers of inquiry and consultation and its democratic accountability

Extension of legal advice privilege to professions other than lawyers might only be appropriate on a conditional or limited basis, which could be properly considered and implemented by Parliament, and could not appropriately be assessed, let alone imposed, by the courts

Appeal was dismissed accordingly.

In case of any negligence on part of the counsel; parties could not claim that they were not to be held responsible.

Power of attorney executed in favour of counsel bears an authority in favour of counsel to make statement about compromise, arbitration or decision on special oath.

Advocates remaining absent from the court without any intimation or sufficient cause expose themselves to be tackled by Bar Council on account of such misconduct, which might entaile cancellation of their practicing licence.

One of the professional duties of an advocate was also to assist the court, being basically the officer of the court, and his first duty and responsibility was towards the court and then towards his client.

Remedy of client would be to claim damages from his Counsel or file complaint against him before appropriate forum of Bar Council.

Knowledge of counsel about decision of case amounts to knowledge of client.

Principles.

Suit filed by the plaintiff having been dismissed for non-prosecution, plaintiff moved application for restoration of suit, which had been dismissed

Suit was dismissed by single Judge of High Court on the ground that counsel appearing on behalf of the plaintiff had not filed personal affidavit to explain his non-availability on dates of hearing

Court had observed that the negligence of the counsel being the negligence of the party, no sufficient cause was available to restore the suit

Validity

Held, it was no doubt the duty of the litigant to follow up the matter diligently, but one might not be oblivious of the fact that a party usually depended on the counsel for the purposes of keeping up track of the case

Where counsel would show negligence, invariably, the court imposed heavy cost, while undoing any order, however, where absence was sufficiently explained, the court would take relatively lenient view for law favoured adjudication on merits

In the present case counsel of the plaintiff was admitted in the hospital and then succumbed to ailment later on, which fact was sufficient to exercise discretion for the restoration of the case

Had such fact been in the knowledge or brought to the notice of the single Judge of High Court, the order might have been different

Impugned order was set aside and matter was restored to its original position and the plaintiff was directed to appear before the Single Judge, however subject to payment of cost.

Principles.

Respondent, who was counsel of the appellant (an elected member of the council) having acquired knowledge regarding business carried out by the appellant previously, while taking advantage of said knowledge not only himself filed objections before the Returning Officer against the appellant but also prompted and asked another person to challenge the candidature of the appellant on the ground that appellant was not a "peasant" but was an industrialist

Validity

Provision of Art.9, Qanun-e-Shahadat, 1984 not only secures the secrecy of professional communication but prohibits in express terms an advocate from disclosing any information, communication, instruction and advice made to him, or received, obtained, and tendered by him during the course of his professional engagement and said prohibition is not limited to the knowledge of events or things acquired by him but also extends to facts observed by him in the course and for the purpose of his professional employment

Where the counsel had gone to the extent of filing a complaint on the basis of the knowledge acquired by him, in the course of his engagement as an advocate, same was not only unethical but was in patent violation of Art.9 of Qanun-e-Shahadat, 1984

Information contained in such a complaint being not valid, same could not have been entertained by the Presiding Officer of the forum and proceedings carried out in pursuances thereof were void and of no legal consequence.

Under the canons of professional conduct prescribed under the Legal Practitioners and Bar Councils Act and Rules, an Advocate was duty bound to assist the court in order to administer speedy justice, and any violation of the same would amount to professional misconduct and would disentitle an Advocate to remain on the role of Advocates.

When a counsel was engaged in a lis, it was his duty to appear and conduct the case and assist the court on behalf of his client in order to secure justice for him

Under the provisions of Legal Practitioners and Bar Councils Act, 1973 and Rules framed thereunder, Canons of Conduct had been prescribed for Advocates and any violation of those Canons, would amount to professional misconduct.