Fair advocacy as a right

Fair advocacy as a right

The system of fixing fees based on the ‘star value’ of the lawyer is a dangerous trend for the judiciary as well as for our democracy

Access to justice essentially means access to a lawyer. The legal profession has a public character. A lawyer is placed between the state and the citizen; therefore, he performs a democratic, libertarian and emancipatory function. The bar is not a private guild. In a celebrated decision in the United States, Justice Nelson rightly said that there is no other relation of life involving higher trust and confidence than that of an attorney and his client (Stockton v. Ford, 1850).

Canon No.12 of the American Bar Association Canon of Professional Ethics warns that “In fixing fees it should never be forgotten that the profession is a branch of the administration of justice and not a mere money-getting trade.” Wesley Romine reminds us that “if the legal profession is to honor its responsibilities to public service, it is essential that the society which it serves should not view the professional abilities of lawyers as representing avaricious and purely personal efforts to obtain wealth.” In Bushman v. State Bar of California (1974), the demand for excess fees coupled with misrepresentation and an attempt to solicit work was the matter in issue. In that case, following the ratio in re Goldstone (1931), a California Court declared the principle of law: “It is settled that a gross overcharge of a fee by an attorney may warrant discipline. The test is whether the fee is ‘so exorbitant and wholly disproportionate to the services performed as to shock the conscience’.”

Cost of litigation

But rhetoric is not reality. Though there is a lawyer between the state and the citizen, between the lawyer and the citizen, there is often the real obstacle of exorbitant professional fees which in itself forms the major chunk of the cost of litigation. Litigation in the Supreme Court is often a multi-crore affair. It is so in many of the High Courts as well. This is the irony prevalent in the constitutional courts, irrespective of the country’s socialist preamble to the Constitution. Legal aid for the poor does not enable the poor to choose the lawyer, nor the lawyer to choose the poor. Quality advocacy is an expensive commodity in the legal market. In V.C. Rangadurai (1978), Justice Krishna Iyer bothered about the “elitist” character of the profession and said that “its ethics, in practice, leave much to be desired.” Today, the profession has assumed a corporate character. A recent study demonstrates that the Supreme Court is a court too far away from the common man (Frontline, April 20-May 3, 2013). The alienation is not due to geographical or institutional reasons alone. Lawyering, by and large, has become a big industry. The distinction between the profession and the trade is blurred. The pity, however, is that often it lacks even the fairness of trade.

Ms. Esha Saha, Associate Editor at Live Law exposes the practice of senior lawyers charging unbelievably excess fees under various heads like retainer fee, settlement of brief charges, conference charges, appearance charges, reading fees, opinion/consultation fees etc. After indicating the alarming figures of the fees charged, she says, “Law is the most sought after and money spinning career in [the] U.S., but even the lawyers from [the] U.S. are astonished to hear about the fees charged by some of the star lawyers in our country. Indian senior lawyers have come a long way since the days of legal luminary M.C. Setalvad who had fixed a standard rate of Rs.1,040 for special leave petitions (SLPs) and Rs.1,680 for final hearings.”

The tragedy is that what the western democracies start to take as misconduct, is (mis)taken for eminence in a country that discovered and aspired for Gandhian jurisprudence. The cost of good lawyering is too serious a matter to be left to lawyers alone.

Need for standardisation

The difficulty experienced in an assessment of fees and the fallibility of another’s judgment regarding an advocate’s fees does not justify the robbery by the robbed brethren. The proportion between labour and cost is not wholly irrelevant. Corporatism should not annihilate conventional values. Experience, specialisation, value of time and intensity of efforts may be crucial in determining fees. Also, there are general economic criteria like demand and availability, material cost, abandonment of other work, etc. The system of fixing fees based on the “star value” of the lawyer is, however, a dangerous trend for the judiciary as well as for our democracy.

Though there is a lack of standardisation and certainty in many areas of legal remuneration, the levy of “shockingly exorbitant fees” should lead to disciplinary action. It needs to be taken as an action of misconduct that “tends to bring reproach to the profession” amounting to professional misconduct as defined under the Bar Council Rules.

There are state legislations regulating the lawyer’s fees in the subordinate courts and even in the High Court in civil and criminal matters. Often, those are framed by the High Court by invoking power under Articles 225 and 227 of the Constitution. The rules regarding fees payable to advocates in Kerala designed by the Kerala High Court after approval by the Governor is a fine example (Kerala Gazette dated 22.7.1969). It is a tragedy that the practice of law in the constitutional courts is not controlled by any law whatsoever. There is a real need to evolve an Aam Aadmi movement in Indian constitutional courts, where people should be able to ask for fair advocacy as a right.

Classification of lawyers

Senior lawyers are designated by the court. The seniorship is either conferred or granted on application. Section 16(2) of the Advocates Act states that an advocate can be designated as senior if “the Supreme Court or the High Court is of the opinion that by virtue of his ability, [standing at the Bar or special knowledge or experience in law] he is deserving of such distinction.” Note that the statute does not insist on any ethical parameter in deciding the question of designation. The prescribed application in some States inter alia asks for income tax details. Behind it, there is an incorrect and unacceptable postulate that the more the income, the more eminent the lawyer.

Generally speaking, the judiciary in the country also would find it difficult to indicate instances of moral and democratic considerations in choosing the leaders of the bar. It is time the statutory concept of eminence is radically altered by way of appropriate amendment. According to Section 16(3) of the Advocates Act, the Bar Council of India can restrict senior lawyers in the matter of their practice. In view of this statutory obligation cast on the Bar Council, the levy of excess fees also should be regulated by the Council. I support the suggestion by Nick Robinson that independent boards should oversee the profession in the best interest of the litigants (“Failed by the lawyer,” The Hindu, July 6, 2013). Chapter II under Part VI of the Bar Council of India Rules deals with “Standards of Professional Conduct and Etiquette.” The rules also need appropriate amendment encompassing excessive bills.

Negation of equality

On account of the indiscriminate conferment of seniorship, there is a clear negation of the perceived equity and equality among the bar members. By treating the bench and the bar on a par with each other, a higher level of internal democracy was conventionally ensured in the judiciary. A similar equality among the members of the profession also is an Anglo-Saxon legacy. The classification of lawyers envisaged by the Advocates Act has had the effect of sabotaging the fundamental uniformity in the bar. In a Maharashtra case, M.P. Vashi v. Union of India (W.P.(C) No.632 of 2011), the levy of exorbitant fees by senior lawyers was the matter in issue. Vashi argued that most of the designated lawyers, by making use of their star value and face value, charge unfair fees. He submitted that a kind of monopoly is being created in the business, detrimental to the interest of the common man at “the other side” who is unable to afford such highly priced lawyers. Unfortunately, the Bombay High Court was not inclined to accept the contention and a historical opportunity for institutional introspection was lost.

Even in decisions dealing with the professional conduct of lawyers, the Supreme Court has not focussed on the question of lawyers’ fees (O.P Sharma v. High Court of Punjab and Haryana (2011) and Supreme Court Bar Association v. Union of India (1998). However, in an earlier judgment in Bar Council of Maharashtra v. M.V. Dabholkar (1975), the court indicated that misconduct is “not restricted to technical interpretations of Rules of conduct.” The Supreme Court added, “Professional ethics cannot be contained in a Bar Council rule nor in traditional cant in the books but in new canons of conscience which will command the members of the calling of justice to obey rules or morality and utility.” This principle should apply to the instances of excess charges by lawyers, whether they are seniors or juniors. Since there is a clear deficit in the legislations, which has the effect of infringing on the common man’s right, the Supreme Court needs to lay down the law even by way of judicial legislation as done in Vishaka (1997) and Vineet Narain (1998).

It is fallacious to think about popularising the judicial institutions or legal profession for that matter. The point is about democratising them. The right to choose among the capable is the touchstone of democracy. Like in any other occupation, a lawyer’s job too is quite ordinary and terrestrial. It is high time that the aura surrounding it is removed and the profession demystified. Litigants, like patients, make for an unorganised lot. Reformation in the legal profession is a condition precedent for judicial reforms which again is indispensable for democratic reforms. The idolatry within the bar is detrimental to the majority of the members of the profession, who do not have any role in the mischief. It also negates public good. The state should, therefore, interfere with the “legal market” in the country.