In all civilized societies, the legal profession occupies a unique and responsible position. Sir Owen Dixon, the great Australian Lawyer and later Chief Justice of his country, said in his address on the eve of taking oath of office—
“It is the duty of the barrister to stand between the subject and the Crown, and between the rich and the poor, the powerful and the weak. It is necessary that while the Bar occupies an essential part in the administration of justice, the barrister would be completely independent and work entirely as an individual drawing his own resources of learning, ability and intelligence.”
The relationship between an advocate and client originates from a contract, which is most often an implied contract. An authority is conferred on the advocate to appear in the case by executing the Vakalat.
“The law is a service industry. A lawyer’s role is to serve the administration of justice and their client. The law recognizes the lawyer-client relationship as one of the clearest examples of a fiduciary relationship.” Justice John Chaney
Justice Crompton, said “The advocate is a representative but not a delegate. He gives to his client the benefit of his learning, his talents and his judgment: but all through he never forgets what he owes to himself and to others. He will not knowingly misstate the law; he will not willfully misstate the facts, though it is to gain the ease for his client. He will ever bear in mind that, if he be an advocate of an individual and retained and remunerated often inadequately, for valuable services, yet he has a prior and perpetual retainer on behalf of truth and justice. There is no Crown or other license which in any case or for any party or purpose can discharge him from that primary and paramount retainer“.1)
The lawyer-client relationship is an agency relationship. The same law, which applies to agency relationships, generally governs lawyer-client relationship.
An agency relationship results from “the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act”.2)
However, in the case of Mahbub Ali Khan3) it has been held that an advocate is bound to discharge his duties to his client with the strictest fidelity. He is answerable to the disciplinary jurisdiction of the court for dereliction of duty. The relation involves the highest personal trust and confidence so much so that it cannot be delegated without consent.
The relation between a lawyer and his client is highly fiduciary in its nature and of a very delicate, exacting, and confidential character. It requires a high degree of fidelity and good faith. It is purely a personal relationship, involving the highest personal trust and confidence, which cannot be delegated without consent. When a lawyer is entrusted with a brief, he is expected to follow the norms of professional ethics. He should try to protect the interests of his clients, in relation to whom he occupies a position of trust.VC Rangadurai vs D Gopalan4)
Counsel’s paramount duty is to the client and accordingly where he forms an opinion that a conflict of interest exists, his duty is to advise the client that he should engage some other lawyer. It is unprofessional to represent conflicting interests, except by express consent given by all concerned after a full disclosure of the facts.VC Rangadurai vs D Gopalan 5)
“One of the primary obligations you undertake when you are admitted to practice is to put your duty to the court and your duty to your client before your own interests.” Justice John Chaney
The lawyer is not bound to tell the court every fact or urge every proposition of law which his client wants him to do, however irrelevant it may be. He is essentially an advisor to his client and is rightly called a counsel in some jurisdictions. Once acquainted with the facts of the case, it is the lawyer’s discretion to choose the facts and the points of law. Being a responsible Officer of the Court and an important adjunct of the administration of justice, the lawyer also owes a duty to the court as well as to the opposite side. He has to be fair to ensure that justice is done. He demeans himself, if he acts merely as a mouthpiece of his client.State of UP vs UP State Law Officers Association6)
Lawyers have a duty to treat witnesses in a civil and courteous manner. They must not harass, humiliate or actively intimidate a witness. Lawyers should advise witnesses how to address the court and educate them about the procedures that will be followed in eliciting their evidence. Further, they may draw their attention to relevant issues, assist in refreshing their memories by referring to known facts or other evidence and prepare them to stand up to a hostile cross-examination. They may not, however, suborn perjury, persuade witnesses to avoid summonses or obstruct access to witnesses by other parties. They may prepare witnesses, but they must take care not to put words into the mouths of witnesses or advise them to manipulate or withhold evidence.
Generally, a lawyer is expected to continue representation of a client until the matter for which the lawyer has been retained has been completed. In some situations, either the lawyer or the client will want to end the relationship prematurely. Whenever a lawyer withdraws from representation, he has an obligation to take reasonable steps to protect the client’s interests. This may include giving reasonable notice of the intent to withdraw, surrendering property and papers of the client and refunding any unearned fees.
Adv. Sunil Sharma is a writer for about 25 years and has authored more than 40 books on various subjects including Jurisprudence, Hindu Law and Environmental Laws.