The BMW case, recently in the limelight again, shows how lawyers can turn the system on its head in a bid to win a case. It also brought to light the fact that lawyers are generally seen as corruptible, and that the line between defence and prosecution is as thin as a currency note. There are jokes about lawyers demanding fees for each court appearance and then prolonging the case to ensure innumerable appearances. These are facts we live with if we need legal help.
What happens when your lawyer tries to prolong the case, and if it is resolved in a single hearing, demands more money? Can you sue a lawyer? It sounds absurd, but this is exactly what Delhi-based D.K. Gandhi did in 1995.
It was Gandhi’s first encounter with the legal process—he took someone to court because a cheque worth Rs 20,000 issued to him had bounced. Despite repeated reminders, the issuer refused to pay. So Gandhi hired a lawyer, agreed upon a fee (Rs 2,800 for the preparation of initial papers and Rs 250 per appearance) and the case came up for its first hearing in court. To his surprise, the defaulter agreed to give him a demand draft for the same amount, along with Rs 5,000 as fee.
“The case was closed, but my lawyer was disappointed because it was settled in a single hearing. He decided to keep the demand draft issued by the defaulter and demanded Rs 5,000 in cash as his fee before handing me the draft. I was shocked as I had already paid him the fee, and the expenses that the court had ordered were for what I had incurred while fighting the case and had nothing to do with the lawyer,” says Gandhi.
Most of us would have fumed and ranted and then paid the money. Gandhi might have done the same had he not come across a suggestion that he take the lawyer to a consumer court. Though there was no precedent of a lawyer being taken to court, Gandhi decided to go ahead “not for Rs 5,000 but because it was rightfully mine”, he says. On his complaint, filed in 1995, the district consumer forum gave a ruling in 1988, asking his advocate M. Mathias to pay Rs 3,000 as damages for providing ‘deficient legal service’ and litigation cost of Rs 1,000 for forcing him to go to the consumer forum.
THE CASE |
|---|
| Should lawyers be made liable for providing deficiency in service under the Consumer Protection Act? |
| Arguments for |
| • Lawyers render service and charge a fee for it, the basic requirement of ser vice under the CPA. |
| • A lawyer may not be responsible for the favourable outcome of a case, but he should be liable if there is a deficiency in rendering the promised services. |
| Arguments against |
| • A client authorises the lawyer to appear and represent the matter on his behalf without any specific assurance or undertaking. |
| • Lawyers cannot assure success in litigation because the judgement is delivered by courts. |
| • A ruling of a lower court can be challenged in a higher court, and if a client refuses to approach a higher court, the lawyers cannot be considered guilty of providing deficient legal service. |
| THE VERDICT: NCDRC ruled that lawyers can be proceeded against under the CPA. The Supreme Court has stayed this verdict for now. |
As expected, the lawyer took the case to the Delhi State Consumer Commission, which set aside the previous ruling. The court said, “The services rendered by the lawyer would not come under the Consumer Protection Act (CPA) as the client executes the power of attorney, authorising the counsel to do certain acts on his behalf and there is no term of contract as to the liability of the lawyer in case he fails to do any such act.” The commission also observed that it was a unilateral contract executed by the client, giving authority to the lawyer to appear and represent the matter on his behalf without any specific assurance or undertaking.
In the meantime, Gandhi’s lawyer had also filed a case in a civil court for recovery of ‘dues’, which he managed to get. It was then that Gandhi decided to take his case to the next appellate authority, the National Consumer Disputes Redressal Commission (NCDRC). During his hearings, he argued his own case. “I was relieved that I did not need another lawyer to fight my case,” he says.
After a long hearing, in 2007, the commission reversed the order of the state commission on the basis of an apex court ruling, which had said that medical practitioners were not outside the purview of the CPA. The commission observed that lawyers were rendering a service and charging a fee for it. It was not a contract of personal service. Therefore, there was no reason to hold that they were not covered by the CPA. The commission also said that a lawyer may not be responsible for the favourable outcome of a case, but if there is a deficiency in rendering the promised services, for which a fee is received by him, then the lawyers can be proceeded against under the CPA.
“My argument all along was also about how a lawyer can be more interested in prolonging a case for his fees rather than being happy with an early conclusion or settlement,” says Gandhi. “In a way, consumer courts are the best forums to seek justice as a consumer, even if sometimes they take long. This is true even for civil courts. It’s because an individual can fight cases on his own in a consumer court and the process has been kept very simple. All one needs to have is proof of one’s assertions. For instance, I needed proof of engaging a lawyer and the fee paid to him,” he says.
After the NCDRC judgement, the Bar Council got into the act and filed an appeal in the Supreme Court in 2009, which has stayed the judgement. When a notice was issued to Gandhi by the Supreme Court, he filed the replies in the SC registrar’s office himself. The Bar of Indian Lawyers approached the court, asking it to decide if lawyers fall within the ambit of the consumer protection law. They contend that lawyers cannot be covered under the CPA as they cannot assure success in litigation because the judgements are delivered by the courts, over which lawyers have no control. They added that a ruling of a lower court can be challenged in a higher court, and if a client refuses to approach a higher court, the lawyers cannot be considered guilty of providing deficient legal service.
Though the case has not concluded, Gandhi says he is satisfied with his fight. “I managed to raise an issue that will be of concern to an average litigant. Why should one set of professionals be out of the purview of the CPA?” he asks.
