- Biological Inventions
- Brand Valuation
- Celebrity Rights
- Company Act
- Company Law
- Competition Law
- Constitutional Law
- Consumer Law
- Copyright Infringement
- Copyright Litigation
- Corporate Law
- Digital Media
- Digital Right Management
- Educational Conferences/ Seminar
- Environment Law Practice
- Farmer Right
- Fashion Law
- Foreign Law
- Gaming Industry
- Geographical Indication (GI)
- GIg Economy
- Hi Tech Patent Commercialisation
- Hi Tech Patent Litigation
- Intellectual Property
- Intellectual Property Protection
- IP Commercialization
- IP Licensing
- IP Litigation
- IP Practice in India
- IPAB Decisions
- IVF technique
- Khadi Industries
- labour Law
- Legal Issues
- Lex Causae
- Live-in relationships
- Lok Sabha Bill
- Marriage Act
- Media & Entertainment Law
- Member of Parliament
- Mergers & Acquisition
- News & Updates
- Non-Disclosure Agreement
- Online Gaming
- Patent Act
- Patent Commercialisation
- Patent Fess
- Patent Filing
- patent infringement
- Patent Licensing
- Patent Litigation
- Patent Marketing
- Patent Opposition
- Patent Rule Amendment
- Pharma- biotech- Patent Commercialisation
- Pharma/Biotech Patent Litigations
- Posh Act
- Protection of SMEs
- Section 3(D)
- Social Media
- Sports Law
- Stamp Duty
- Stock Exchange
- Surrogacy in India
- Telecom Law
- Trademark Infringement
- Trademark Litigation
- Traditional Knowledge
It has been generally noticed that more often than not many problems snowball into a very complicated one just because of the ignorance of ‘how to choose the right lawyer?’ The purpose of this article is to impart knowledge, provide information and enthuse confidence among those who are at helms of the lawyers, so that, they may not have to face any difficulty in tackling the problems coming their way. This article deals with the whole gamut of techniques and tricks on how to choose the right lawyer. It is equally useful for those who are well versed with understanding how to choose a lawyer to those who do not have the rudimentary knowledge of it, least of all the nuances of law. Choosing the right lawyer is a key to prevent imbalance of soul and body. It is imperative that you as a reader understand that every choice you make may not be the perfect choice. So if you have chosen a lawyer for advice or for handling a bigger role in the past, and have found yourself muddled up, don’t be too hard on yourself, take a step back, re-strategize and move onward and forward.
The relationship between a lawyer and the client (one availing services), is a like a contract which has to be honored by both parties. The success of the work sought from a lawyer largely depends upon the efficiency and experience of its team. From here starts the trial of strength and war of nerves. It is implied that lawyer will perform its duties faithfully and with proper care. The obligation to work faithfully is assumed because in the absence of any such assumption the contract of service will be unworkable or in any case it is an assumption based on equitable grounds in view of the peculiar nature of contract.
Undoubtedly, the concept of choosing a lawyer cannot have a straitjacket formula but I am sure this Online Course will go a long way in providing first hand solution to the problems faced by litigants / Clients, therefore all attempts have been made to gather and dig out the ratio decidendi on various aspects to make this Online Course more authentic and informative.
1.1 MYTHS ABOUT LAWYERS
Lawyers have an appetite for sarcasm, a genre they thoroughly enjoy. They relish their profession and at the same time understand the wits attached to it. As Mario Puzo (Author of Godfather) says: A lawyer with his briefcase can steal more than a hundred men with guns. But all that is said about lawyers may not stands true.
Following are the common Myth busters:
- Sare Vakil ek jaise hote hain (All Lawyers are the same)
One may come across this opinion a lot of times in their quest to find a suitable lawyer. This vox-populi is due to the fact that lawyers are unable to attend to its clients more often than not. It is true that lawyers, tend to create an unavoidable opinion against themselves due to the paucity and fight with time, they face on a day to day basis. Also one needs to take into account the factor that a lawyer’s time is mostly taken up by the documentation / Pleadings / Research and the hours that is put behind the scene to make the task possible, which is why they are unable to attend a sulking client. Some people who have met their lawyers two or three times and the meetings have not gone to their satisfaction. They think adversely about lawyers whereas they forget that a lawyers contribute a lot of work and research behind the scenes. As one Litigating lawyers puts it, “Trial lawyers spend most of their time in the discovery stage of litigation, reviewing pleadings, drafting and answering discovery requests and taking submissions.” Further, to mar the above myth, be informed, that every lawyer is unique. They all have different ways of conducting their professional duties. A corporate lawyer will function differently from a litigating lawyer and vice versa. Similarly, Legal Consultants, insurance lawyer, patent attorney etc all have very unique ways of functioning. One may come across lawyers who may invest time and money on cases without being paid for years, whereas there also exist lawyers on payroll who, for instance, make the same salary whether they win or lose. Thus “Sare Vakil ek Jaise nahi Hote”.
- Vakil ki koi zaroorat nahi hai (No need for lawyers)
In India a lot of peripheral work requires the expertise of lawyers. But the general public holds the opinion that they don’t need lawyers for such miscellaneous works. Actually, the problem lies with people’s mentality, which extends quite harshly towards professionals, especially doctors and lawyers. This is a myth however, one needs a proper prescription for every illness, likewise one needs to have a correct legal advice in every sphere of law. Be it something as small as an affidavit to something as goliath as master agreement. In all walks of legal turmoil, an opinion from an expert can be the difference between a perfectly executed job to that of an ordinary or badly executed one. Lastly, in India, we have been bequeathed with a life skill, more popularly known as “Jugaad”. Thus the vox-populi holds that “Vakilki Koi zarooratnahihai”. When a grave legal discrepancy occurs, clients have jugaad with the top public officials and they feel, they may evade every problem via their contacts. Thus they refrain from hiring or consulting lawyers. It is upsetting that Lawyers who are a master at interpretation, often get overlooked at the inception stages when the problem per se, could be brought under control. Thus it is a Myth that one does not require lawyers. To the contrary a lawyer is needed from the moment one commits a violation of law.
Example Myth Buster : In USA, “Pleading the Fifth” is a colloquial term for invoking the privilege that allows a person to decline to answer questions where the answers might incriminate him, and generally without having to suffer a penalty for asserting the privilege. From this flows right to counsel. Thus Har Desh mein Vakil ki zaroorat hoti hai.
- Lawyers are human equivalent of Sharks/Vampires
Many Business Organization especially start up’s have an opinion that lawyers will bleed their bank accounts dry, leave them with nothing but a host of incomprehensible legal proposition and a fat payment slip. It is how many business organizations perceive lawyers in India and abroad. This cynic perspective of the clients is untrue as people are unware that spending a few bucks might actually save them a fortune and a lot of pain down the road. Legal strategy and planning doesn’t start when one gets into trouble but it starts from the date when one thinks of starting a business itself. The invaluable advice of a lawyer at the inception may prevent massive road blocks. Many clients are unware of their rights. They are eligible for subsidized legal aid if their income is below a certain amount. The government of India along with several legal bar associations have a legal aid cell in the court premises for people with lesser or no income at all. Further, Legal fees vary depending on the kind of case and the financial resources of the client. Some lawyers charge on an hourly rate whereas others function on a flat fee. There are others who function via a retainer mode. Thus every client can suit and hire a lawyer in accordance to its paying capacity. Thus the question of lawyers being a human equivalent to sharks / vampires does not arise as a client is always free to ask and fix the fee before taking a lawyer on board.
- He is a good Lawyer (Yeh ek acha Vakil hain)
This is one of the biggest myths. A lawyer may be super specialized in one field and may be as dumb as a rock in the other. There is no such thing as “Achha Vakil”. This said term has to be suffixed with the field of law. Another aspect while picking up a lawyer is to think and make sure the lawyer you hire is the lawyer you need.
Example: If you need a Criminal Lawyer and one of your relatives from Kanpur suggests, yeh acha vakil hain, doesn’t mean you can make do with the expertise of a Merger and Acquisition / Real Estate lawyer, irrespective of the fact that he has greyed his hair in the profession. Each and every field of law takes years of practice and study, thus make sure your lawyer regularly practices the kind of law advice you need.
- All lawyers are Rich
As law students and as general public, there must have been an era when you as viewers, of TV series, may have grown addicted to ‘Celebrity Lawyer’ shows such as Boston Legal, Suits etc. Furthermore, this begins to seem a reality within approach when you read about lawyers repeatedly in newspapers every day. To add to this illusion, most of our Government Post from Politicians to Head of Government Organizations are holding a law Degree. Their fee(s) is often a discussion from classrooms to club rooms. But this notion holds true only for a handful. Not every lawyer is paid exorbitant amounts of money and as a fresher, one might even have to work for a mere 5K to 15k. Yes, it’s a rate existing in the inflated year of 2016. Furthermore, the profession reaches a new level of tough, in small town, such as Allahabad. Allahabad Highest Court may be having the biggest Bar strength in terms of numbers but his does not imply that every litigating lawyer is having a ball. One might come across lawyers stating “Cigarette kakharchanikalatahai“. Undoubtedly, with experience comes a better Salary/ Fee but it takes perseverance and patience to reach that level. Thus the moral of the story is not to get influenced by hearsay or by the life of a lawyer in glorifying and glamorous TV series. Sorry to disappoint you but, all that you see on TV is a script, which is not only well written, but a gimmick that plays illusions with lawyers wearing crisp suits, swanky shoes and nice hairdo. Law does have a price which we all should aspire not going by the glamour it has to offer, but by the richness it can offer in terms of knowledge and life skills.
1.2 HOW AND WHEN YOU HIRE A LAWYER
Once the above basic understanding concerning a lawyer, is obtained and one is well versed with the myths and reality about lawyers, the next mammoth step is hiring one. The choice of hiring a lawyer is somewhat like a heart patient being given an aspirin during a stroke. Well in some cases especially before courts where the relief, if not, obtained will lead to an irreparable loss. The choice of hiring the right lawyer plays a vital role. In this section, light will be focused on how to go about hiring a suitable lawyer on the basis of one’s business model.
Many businesses these days are a combination of Complex / Technical issues, which rely on experts to address the technicality of issues involved. It is no different for a lawyer. Having the right kind of lawyer not only saves clients time, money and effort but it also helps them have some basic understanding of the laws. Hiring a lawyer can be initiated after identifying the basics aspects of the business.Conventional wisdom indicates that a lawyer should be hired as soon as the idea is invented. A Corporate Lawyer having a broad based corporate law practice of four to ten years may be hired to give perception to one’s business model.
Consequently, less conventional wisdom exists in the form of fresher’s or lawyers with experience ranging from one to four years on the subject of corporate law. Startup Company should always have an In-house lawyer. In House Counsel Helps Start up’s in resolving the complexities and is of great help to implement and assist the outsourced work. In House Counsel can add value in the obvious ways, such as helping to formulate a legal structure of compliance and providing perspective on crucial transactions, and getting smart solutions to which many startups struggle to decide.One may hire a lawyer when a business idea confronts the question: how can we do this legally?
A company should pride themselves on their ability to “get smart” on legal issues. Being a business/ partnership, big or small, reason for hiring, when to hire, finding the right lawyer should not be looked upon as rocket science. The Fields law are exponentially vast, two business models are discussed below in this section as per todays throbbing demands.
1.2.1 – START UPS:
Many startups in India are unstructured, most of them are tech entrepreneurs, waiting for their idea to go big. These sort of unstructured startups, often feel that they do not need a lawyer owing to the fact that the two career paths are like oil-and-water. The nature of these two businesses/profession are tangential to each other. Whereas these are the business enterprises that should be hiring a lawyer as early as possible and the agenda of hiring a lawyer should be on every startup’s to-do list. Many a startup thinks Lawyers are not engineers. Lawyers don’t help in the production of the product, what they fail to foresee is that a lawyer instead provides long-term value proposition focused on smart growth and risk-management. A lawyer is the only person capable of answering a simple question from how can we do this legally?, to solving and providing answers to questions which might fall into several categories of law such as; how to obtain Intellectual Property on the Invention, how to protect intellectual property; how to hire, fire, and compensate employees; how to hold regular board meetings, how to advertise in compliance with to Rules and Regulations; how to enter into agreements to partner with other companies; how to maintain user privacy; how to sell things online; how to respond to government Gazzetted Notification or rather challenge a Policy not in favour to the startups Business.
1.2.2 – IT / TECH COMPANY:
These days IT/Tech Companies are the largest organizations in any country. The sort of IT business that exist in today’s era are unparalleled to any other sector. Thus with such a complex business models comes a demand for complex and multitalented employees. When one speaks about lawyers for helping a Tech/ IT company to function. One may be pleased to observe as an employer that they need for InHouse counsels has been felt more than ever. From an employer perspective and company running smoothly perspective, the company should hire and target lawyers who have a wide range of experience to Offer. They should be equipped to present themselves both as Litigators and Transactional Lawyers. Employees who have a litigation background are trial lawyers at heart; they are trained to focus on the nuances of claims and defenses. With their litigation background, they have an upper hand in handling the procedural process, evaluating evidence and applying the law to the facts in reaching sound decisions. When a lawyer is able to perform such core functions steadily and with utmost care then the Company especially an IT / Tech Company can feel a sense of security, which is all u need to carry out business sometimes. On the other hand, an in house transaction lawyer are mostly business lawyers; they are trained to focus on the details of business deals. Transactional lawyers generally have a deeper understanding of the way a particular industry works. They often have a solid appreciation for transaction details and may have significant deal negotiation experience. One more type of lawyers an IT /Tech Company needs on and off is a Patent Prosecution, IP Licensing and IP Litigation lawyer. These days with the inventions, innovations and disputes at the IT / Tech Company, being so complex in nature, one should always have an in house Lawyer for quick and remedial plan of action at their behest. Patent prosecutors and licensing lawyers are generally transactional lawyers. Patent prosecutors almost always have a hard-core technical background in a specific engineering field and are experienced in the intricacies of drafting and prosecuting patent applications submitted to the patent office. IP licensing lawyers, on the other hand, are skilled in contract writing and contract negotiation; their technical skill set may be much more limited, particularly if they focus more on copyrights and trademarks than patents and technical trade secrets. Like other litigators, the skill set of IP litigators is in preparing and presenting cases. Although some IP litigators have engineering or other scientific backgrounds, many do not.
1.2.3 – INDIVIDUAL:
On most occasions, you may be able to solve your problem without a lawyer’s help. If you have been wronged in anyways, see if the problem is solvable, by addressing the same via negotiations / mediations. More often than not, a grievance is capable of being settled to your satisfaction without having to find a lawyer. Even, the Hon’ble Courts endeavor that individual problems be resolved without having them undergo the tedious and long procedural/ regulatory process of law. This intent is reflected in the amount of mediation centres each state bar counsel establishes to reduce the burden of the courts.On the other hand, sometimes a hiring lawyers to resolve your problems is inevitable.The technique is simple Consider several lawyers before selecting one. It is important that you recognize his skills.Make sure you review all his advices and representations. Be prepared when you call or meet with the lawyer you selected. Make a list of questions so you get the information you need. Don’t agree to anything until you get the answers to all your queries.It is a client’s right ask as many questions as it takes to attain inner peace. The result is always not in the hand of the lawyers, but his approach and your consent to the strategy is equally important.
Prepare a list of what you want to know, questions may range from relevant to irrelevant. Ask research papers, research may include precedent cases laws, notifications, commentaries etc. Ask for the list of cases the lawyer has handled in the past. Ensure and be satisfied to the question“whether or not they have tried similar cases”. Lastly, do not proceed with anything you don’t understand.
1.3 NEED TO FIND GOOD LAWYERSAND ITS ADVANTAGES
As stated earlier choosing the right lawyer is a key to prevent imbalance of soul and body. Clients not knowing traits of a good lawyer may refer to the listed traits below which not only will help you in hiring one but will also help you evaluate your current lawyer and measure their ability:
Good lawyers will
- Update regularly: – Will always ensure clients are updated and will reach out for compliances if required at the client’s end.
- Return phone calls: – A good lawyer will endeavor to return phone calls from its clients at the earliest. Generally, not exceeding one working business day.
- Honor deadlines: A good lawyer will try its best to honour deadlines concerning your requests or the courts requests more often than not.
- Discuss openly all billing matters: A good lawyer will never shy away from discussing the billing of his services. Lawyers who are genuine and good at their work will justify every bill raised for their services and will be open and willing to discuss the same at length.
- Refer you to talk to someone else when specialized expertise is needed: A Good lawyer will be humble towards the knowledge he possesses. He will never try to unnecessarily garb or keep a client knowing the fact, he / she may not be best equipped to handle the case or issue. Thus a lawyer who refers a client to another specialized expertise is not only a good lawyer but a great human being as well.
- Appear prepared at meetings or court appearances: Lastly a good lawyer trait can be identified when it never shy’s away from meetings or court appearances. A good lawyer will always be well briefed and prepared for its client’s matter, no matter what ups and downs, his personal life may be undergoing.
2.0 HOW TO FIND APPROPRIATE LAWYERS: –
2.1 KINDS/ TYPES OF LAWYERS:
There are several kinds of lawyers. This list is exhaustive, as the modern laws are so expansive in nature that the variety of lawyers that exist today, has never existed before. An attempt has been made in this course to cull out some specialized lawyers of different fields in order to help you identify, the kind of lawyer you may need to resolve your disputes. The Main frame can be classified into In- House, Litigation Lawyers and Compliance & Advisory. All below mentioned categories of lawyers may choose to fit in either of the three domains.
Bankruptcy Lawyer: A lawyer dealing with banking laws. And having specialized in Bankruptcy, Debt related laws etc.
Business / Corporate Law Attorney: A lawyer dealing with Corporate laws and having specialized in collections, Contracts, Incorporation, Litigation, Patentsetc .
Constitutional/ Civil Rights Lawyer: A lawyer dealing with Civil Right Laws and having specialized in Constitutional Law, Discrimination, Civil Liberties ,Gay and Lesbian Rights ,Voting Rights, Human Rights etc.
Criminal Lawyers : A lawyer dealing with IPC/CRPC. And having specialized in Criminal laws.
Employment Lawyer – A lawyer dealing with Employee’s Rights and having specialized in Workers’ compensation, Termination of employment, Sexual harassment ,Workplace safety, Wage and Discrimination against employees based on age, ancestry, color, creed, disability, marital status, medical conditions, national origin, race, religion, sex, or sexual orientation, Employee benefits like leaves of absence and retirement plans etc.
Environmental Lawyer: A lawyer dealing with Environment Laws such asThe Water (Prevention and Control of Pollution) Act, 1974,The Air (Prevention and Control of Pollution) Act, 1981, Wildlife Protection Act, 1972, The Forest (Conservation) Act, 1980, The Environment (Protection) Act, 1986.
Estate Law Attorney / Estate Planning : A lawyer dealing in Wills and Trustslaws.
Family & Divorce Lawyer: A lawyer dealing in Adoption, Child Custody and Divorce laws/
Government Lawyers: A lawyer representing by filing cases or defending the government on the policies formulated by it. These Lawyers may be on the pay roll of either the central Government or the State Government.
Immigration Lawyer: A lawyer dealing in Citizenship,Employment Business and Citizenship.
Military Lawyer: In India they are recognized as CAG Officers. They practice primarily in the field of Military, Veteran’s Benefits, Military Law Basics
2.2 WHEN TO HIRE A LAWYER
Every Dispute/ Issue may not need a lawyer to step in.
Example: Should I Contact a Lawyer about My Passport Issue? The answer is a combination of yes and No. Well, to begin with “Getting a passport or issuance of a passport” would at the first instance be a wrong connotation of word, rather, the word “denial of passport” would precisely be the correct term to be used to seek a service of a lawyer. Interestingly, you will definitely want to consult with an attorney who practices immigration law if:
- you are uncertain about your eligibility for a green card or other immigration benefit
- you are requesting any sort of discretionary relief, such as asylum or a waiver, which involves persuading the immigration authorities to make an exception or offer you benefits that it might not ordinarily offer another applicant in your position
- you need emergency help with an immigration matter
- you have been notified that deportation or removal proceedings are being started against you
- you have had an immigration application refused or denied
- Enemy of the State: A state can refuse to issue a passport if for any reason it suspects you may engage in behavior that is detrimental to the country.It’s also possible that a misunderstanding about your name could very easily result in you being mistaken for some most-wanted criminal. So be clear with your documents to avoid any confusion. Don’t give them any reason to think you pose a threat to the country.
- Criminal History: If your name is under investigation, your passport is likely to be denied. The state could also deny you a passport if it treats you as a controversial figure. Also, if you have in the past served time in a prison for any crime, the state has the right to review your application closely and deny it on the grounds of threat.
- Overdue Payments: If you have any outstanding loans, debts or tax payments that are due by a certain date, then your passport application could be rejected. Make sure that all your tax filings (if applicable) are correct and current before applying. Check with your bank on your loans or debts (if applicable) and repay any outstanding payment.
These are just some of the reasons why you may choose to consult with an immigration lawyer — there are many others!
2.3 PROCEDURE TO FINDING A GOOD
Consider a Specialist! Most lawyers specialize in certain areas, and even a so-called “general practitioner” may not know that much about the particular area of your concern. It can pay to work with a lawyer who already knows the field, such as employment law, software design issues, or restaurant licensing. That way you can take advantage of the fact that the lawyer is already far up the learning curve. Sometimes specialists charge a little more, but if their specialized information is truly valuable, it can be money well spent.Bar associations, lawyer referral websites, and third-party websites are valuable resources that will allow you to gather a universe of names of lawyers who are potentially relevant. Now the question becomes: How you can narrow that list to just one lawyer? Use the following checklist to screen your prospects:
- Look at biographical information, including whatever you can find on lawyer- and law-firm websites. Do your prospective attorneys appear to have expertise in the area of law you need?
- What kind of clients does each attorney represent? Check the lawyer’s profile and client list. If you can’t tell from the website or other sources, call the lawyer’s office and find out.
- Look for articles, papers, or other informational pieces the lawyer has written. Does the attorney participate in any online chats or blogs? A discussion board?
- Ask people in your area, including friends who are lawyers or work in the legal field, whether they’ve heard of the attorney and whether they have any opinions on the lawyer or the firm.
- Check out online archives of your local newspaper. Has there been any publicity (good or bad) about the lawyer or the cases that he or she has handled?
- Check your state bar association’s website. Make sure any lawyer whom you’re considering hiring is an active member of the bar and hasn’t been disciplined, suspended, or disbarred.
- Look into whether the lawyer is appropriate given your special needs, if any; such as the ability to speak in a language other than English.
After this research, you should have a “short list” of two or three names. Once you’ve made the decision to hire a lawyer, the next step is to pick a specific lawyer to handle your legal matter. While each state has many lawyers to choose from, choosing the right lawyer can make the difference between a pleasant experience and a frustrating experience.
3.1 LAWYER’S DUTY TOWARDS A CLIENT (PROFESSIONAL ETHICS (ADVOCATE’S ACT, 1961)
A lawyer is a professional, who offers his services to the courts and plays a vital role in the administration of justice. Thus automatically the burden on his shoulder to serve justice invites, great responsibility towards society, especially towards its clients. Being a lawyer is not easy, as every morning a lawyer wakes up to make a living by resolving people’s problems. Sometimes, the problem takes a toll on his mental and physical state. This is when his waters are tested. Many lawyers, conduct themselves ethically in tough times, whereas many tend to resort to immoral actions. In order to prevent the later from happening, there are a set of rules that govern their professional conduct which arise out of the duty that they owe the court, the client, their opponents and other advocates. That the Bar Council of India – Rules on the professional standards that an advocate needs to maintain are mentioned in Section II, Part VI of the Bar Council of India Rules. These rules have been placed there under section 49(1)(c) of the Advocates Act, 1961.
Here are some basic ethical and professional rules a lawyer is expected to follow:
- Must represent its client ethically, zealously and within the bounds of the law
- Must competently analyze legal issues and exercise knowledge of the law applicable to one’s case
- Must communicate with its client in a timely and effective manner
- Must not create a conflict of interest
- Must follow its client’s directions in handling the case unless they are illegal
- Must keep client conversations confidential, except in specific and rare occasions
- Must not have a personal relationship with a client
- Must not act against your best interests unless he or she first obtains your informed written consent
- Must be loyal to you
3.2 NEGLIGENCE AND CONSEQUENCES (SUING LAWYERS AND CLIENT’S CASE STUDIES)
An advocate may have other MUSTOPEDIA’s towards its clients, depending on the case and the ethical rules that apply impromptu. There are certain guidelines set by the Indian Courts. Following briefs of Real Life Instances of Mustopedia will help one figure its relationship with its lawyers.
- If a lawyer fails to practice rules, he or she can be disciplined by any bar association. It’s possible the lawyer may even be disbarred for serious violations. Criminal prosecution is also a possibility. And a failure to comply with the rules may be the basis for a malpractice action.
- When the client had done everything required to be done he should not be penalised for the absence, or default, or carelessness or negligence of its lawyer. Even if the lawyer absented himself deliberately or intentionally, the courts cannot penalise the litigant for the inaction, deliberate omission or misdemeanor of his agent. Under the said circumstances, Courts have held that for the fault of the lawyer, the penalty of dismissal of the case cannot be imposed on the litigant.
- Similar view was taken by the Division Bench of Calcutta High Court in S.C. Sons (P) Ltd. v. Brahma Devi. The Division Bench held as follows:
“A party cannot be made to suffer for the fault on the part of his advocate if he himself is not at fault. The party having engaged an Advocate expects that his Advocate will take such step as necessary for the purpose of proper representation of the party concerned. If such advocate does not take necessary step resulting in the suit being dismissed for non-prosecution, the fault is of the Advocate and not the party. In the present case the client i.e. the plaintiff could not expect that the Advocate on record in whose favour the change has been given, would not take necessary step to intimate the Board Maker or otherwise bring the same in the records of the case and accordingly the plaintiff Cannot be made to suffer for that.”
- In Rafiq v. Munshilal, Hon’ble Supreme Court made following observations:
“…Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the later appears in the matter when it is listed. It is no part of his job. Mr. A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. May be we do not know; he is better informed in this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimature on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into dispute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his Advocate, If we reject this appeal, as Mr. A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanor of his agent. The answer obviously is in the negative. May be that the learned Advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be resorted to its original number in the High Court and be disposed of according to law.”
- In (2010) 1 MLJ 1090 (G. Krishnamorrthy Vs. Arulmighu Sri Pataleeswarar Devasthanam represented by its Executive Officer, Thirupapuliyur, Cuddalore, it has been laid that innocent party cannot suffer injustice because of the default of the advocate.
3.3 CLIENTS DUTIES TOWARDS LAWYER
No lawyer will enforce a client to sign any agreement before hiring its services, except statutory documents such as Vakalatnmas etc. The relationship between a client and a lawyer flourishes purely on understanding, expectations and trust. Once a client approaches a lawyer to hire and avail its services, the relationship sets sail. The expectations flow both ways and there are certain measures and safeguards a client must practice to reap benefits of an uninterrupted and effluent services. Following are few basic expectations of a lawyer of its client.
Truth: Finding the truth is the objective of the judicial system, but it is not the governing principle for the lawyer. A Lawyer is bound by the lawyer – client relationship. This relationship is unique and special. Because all lawyers tend to religiously and ethically maintain the sanctity of this relationship, they are often accused of being liars with little devotion to the truth. Well in all honesty, law imposes on them a fiduciary obligation to protect their clients interest no matter what. The core of the lawyer- client relationship is trust because a lawyer never frustrates the truth learned during the representation from its client and infact even after its client’s death. Dedication to the truth is not the lawyer’s paramount goal, but dedication to keep the truth hidden or fight for the truth is a lawyer’s mission.
Cooperative with and responsive to your lawyer: A client must be cooperative and responsive to its lawyers else Hon’ble Courts will not hesitate to discharge a lawyer from its duties. This not only impacts the credibility of the parties before the court but also sends out a wrong message to the court assessing the case. This may in some cases lead to adverse orders being passed and may cause prejudice to the merits of the case.
Delhi High Court Order : CO.A(SB) 7/2016 – Siddharth Gupta &Ors vs GetitInfo.Pvt. Limited
Be Available to your lawyer and attending legal proceedings, as requested: A lawyer is the best judge of situation when involved in a legal battle. A Lawyers advice is based on competently analyzing not only the legal issues but also based on experience which is based of exercised practical knowledge. Thus, a client must keep its personal commitments at bay, and escrow its presence to a lawyer by attending a case more often than not. It keeps the mutual trust alive as both parties are able to acknowledge how bad they are fighting for justice.
Legal Bills to be paid timely manner: – Paying a lawyer timely will prevent one from feeling that their bank account is running dry in fighting the case. This cynic perspective of the bank account running dry is untrue as people are unware that spending a few bucks might actually save them a fortune and a lot of pain down the road. Legal strategy and planning demands that lawyers be paid timely for the bills raised by them, this not only infuses a position for a client to demand service but also invokes a sense of morality for the lawyer to address the issues of a well-paying client who appreciates his/her efforts.
These aforementioned duties and responsibilities may be implied with or without an agreement. A failure to follow any of the above obligations may result in a lawyer terminating the relationship How to ‘win your case’: There is no universal set standard to win a case, however there are measure one may take as a stepping stone towards winning a case. First and more most is hiring an experienced lawyer. This is critical to your success in litigation. Court rules/ procedures are extremely complicated, and a seasoned trial lawyer may be the key. In today’s time success is also measured by the fees the lawyer charges.The fee for may not be the ultimate parameter but it is an outlier, of high or low division lawyers. Also not necessarily the fee may determine the best suited lawyer for the case. More often than not such is the case. Secondly, if you are approaching the Courts for relief then the Complaint / Petition / Applicant / Relief Seeking Document should lay out the facts underlying your dispute and convince the courts to identify what relief you request. Evidence must be concrete, undisputed and should cut deeper than a knife. Every evidence relied upon should speak volumes about the true and correct facts of the Situation. The key to winning also lies in being prepared to every obstacle thrown in your path. A client and Lawyer ought to be prepared in such a manner such that they have answers to objections raised. Infact, have counter objections ready if need arises. Knowing the objective behind pursuing litigation, having answers to objections raised, and considering point of views increases one’s chances of winning the ultimate relief. But all of this must be accompanied with sincerity towards knowledge, the applicability of law and its intent from the legislative point of view, Dedicative research, lots of study time and pursuing the right approach. By right approach means being an opportunist in Court, such as making use of every trick in an advocates sleeves, being street smart, always staying alert and keep your mind open. Thus as a Client it is not just the lawyer who is required to be proactive, it demands that the client walks shoulder to shoulder and get the best out of him.
The selection of a lawyer is crucial not only to the ultimate outcome of one’s case, but also to the fact how one’s case progresses from start to finish. Similarly, the lawyer is also vexed with the same question. Choosing the right client, or taking up the right case, can help him become a more knowledgeable, competent and peaceful human being or it may result in a potential conflict of emotions of interest. It is often suggested, that both parties should reach out to trusted sources. A lawyer should take up case referred to him from trusted sources wherein he/ she is assured of the client’s temperament and pay capacity, which does not become a dispute in itself in the long run. Similarly, a client should go for word of mouth when it comes to hiring a lawyer. Hiring a specialist in the field saves lots of problems to both the client and the lawyer, as it gives a clearly picture to both parties as to where they stand on their disputes. This acts as an added advantage as specialized lawyers also more up-to-date on changes and trends in the law. Similarly, the task for an attorney comes with the burden of identifying some crucial traits of a potential client asking for help. The client should be make the lawyer feel comfortable and altruistically talk about the merits and demerits of the case. A client should under no circumstance make the lawyer feel intimidated. A client with unrealistic expectations serve no purpose either to the betterment of justice or a lawyer’s career, so avoid one should as a client not have unrealistic expectations. In the end Trust your gut. If something does not seem right, it probably isn’t and vice -versa.
Must Take Remedial Steps
- Make sure you do your homework – Finding the right lawyer demands effort.A client may needs to exert effort into finding the right catch.
- Do some due diligence – Conduct a background check. Get references/ opinion from other lawyers regarding the lawyer you are considering to hire. Doing background checks is advisable
- Know how much it will cost you –Have a basic understanding of how much the lawyer will cost a client will not only help him make choices amongst many good ones.
Thus, as is fairly conclusive from the above discussed facts, Lawyers are very busy people. The mark or impression that a lawyer leaves on his/her client depends a lot on how much time the lawyer is able to spare for counselling sessions. Your lawyer in certain cases may not be able to afford to set aside time for the same. However, such a situation can be easily avoided if the client shows initiative and is proactive. It is important to understand the depth of these two words. A client who lays dormant and does not take the initiative of understanding the facts and circumstances surrounding his case leaves room for a so called bad lawyer to mislead him and benefit from his misery. It is important for the Client to be prepared with questions for his lawyer. At the same time taking cognizance of the above stated information may help you in making a wise choice.