Duties of an advocate to the client

1. Accepting and keeping the brief

• Rule 11. An advocate is bound to accept any brief in the courts in which he practises, at a fee consistent with his standing and the nature of the case. Special circumstances may justify refusal. This is the Indian version of the English “cab-rank” rule.
• Rule 12. He shall not ordinarily withdraw from an engagement without sufficient cause and reasonable notice, and on withdrawal must refund the unearned part of the fee.
• Rule 13. He should not accept a brief in which he has reason to believe he will be a witness, and must retire if he becomes one on a material question of fact, if he can do so without jeopardising the client.
• Rule 19. He shall act only on the instructions of the client or his authorised agent.

2. Loyalty, candour and confidence

• Rule 14. Full and frank disclosure, at the start and throughout, of any connection with the parties or interest in the dispute that might affect the client’s choice.
• Rule 15. He must fearlessly uphold the interests of his client by all fair and honourable means, without regard to unpleasant consequences to himself, and must defend an accused regardless of his personal opinion of the accused’s guilt, remembering that no one should be convicted without adequate evidence.
• Rule 17. He must not breach the obligation of confidentiality, now in section 132 of the Bharatiya Sakshya Adhiniyam, 2023 (section 126 of the Evidence Act).
• Rule 24. He shall not abuse or take advantage of the confidence reposed in him by the client.
• Rule 18. He shall not foment litigation.

3. Fees and the subject matter

• Rule 20. No fee contingent on the result, and no agreement to share the proceeds.
• Rule 21. No buying of, or stipulating for, a share in an actionable claim.
• Rules 22 and 22A. No bidding for or buying property sold in execution of a decree in a case he was engaged in, nor acquiring property that is the subject matter of such a case (unless, under Rule 22, he buys for the client with written authority).
• Rule 23. He shall not adjust his fee against a personal liability to the client not arising from his employment.

4. The client’s money: a trustee’s position

An advocate holds money received from or for a client in a fiduciary capacity. Rules 25 to 33 are the accounting code:

• Rule 25. Keep accounts of the client’s money, showing amounts received, expenses incurred and debits for fees, with dates.
• Rule 26. Show whether a receipt is for fees or expenses; no diversion of expenses towards fees without the client’s written consent.
• Rule 27. Inform the client as early as possible of any amount received on his behalf.
• Rules 28 and 29. At the end of the proceeding, he may appropriate unspent money towards the settled fee, or, if the fee was unsettled, the fee payable under the court rules, and must refund the balance.
• Rule 30. Furnish a copy of the account on demand.
• Rule 31. No converting the client’s funds in his hands into loans.
• Rule 32. No lending money to the client for the purpose of the proceeding in which he is engaged, except a payment the rules of court compel him to make during the case without prior arrangement.

Misappropriation is treated as the gravest misconduct. In Harish Chandra Tiwari v. Baiju, 2002 INSC 8, (2002) 2 SCC 67, an advocate who withdrew compensation money due to his client and kept it was held to deserve removal from the roll; the Supreme Court enhanced the suspension imposed below.

5. Conflict of interest

Rule 33. An advocate who has advised a party, drawn pleadings or acted for him in a matter shall not act for the opposite party in that matter. The rule protects the confidences already received.

6. Problem 1: lending money for the case

‘A’, an advocate, lends money to ‘B’, his client, for the purpose of filing a case against ‘C’. C complains to the Bar Council. Will C succeed?

Law. Rule 32 forbids lending money to a client for the purpose of a legal proceeding in which the advocate is engaged. Section 35 allows a complaint by any person, and the Bar Council may act even on its own motion.

Application. A gave the loan precisely to finance B’s case, so the transaction falls squarely within Rule 32. The rule exists because a lender-advocate acquires a personal stake in the result (he needs the case won to be repaid), which is close to a contingent fee forbidden by Rule 20 and to fomenting litigation forbidden by Rule 18. The explanation to Rule 32 does not help A: it covers only a payment the court rules compel during a pending case, without prior arrangement. C is not A’s client, but section 35 does not limit who may complain; C has an interest because he is the target of the financed litigation.

Conclusion. Yes. A is guilty of professional misconduct and may be reprimanded or suspended under section 35(3). The suit against C is not invalid for that reason; the remedy is disciplinary.

7. Problem 2: refusal to return the file

A client wants to change his advocate, but the advocate refuses, without reason, to hand over the file. Advise the client.

Law. In R.D. Saxena v. Balram Prasad Sharma, 2000 INSC 409, (2000) 7 SCC 264, the Supreme Court held that an advocate has no lien over a client’s case file even for unpaid fees. Case papers are not “goods” for the purpose of a bailee’s lien under section 171 of the Contract Act, and the litigant’s cause is more important than the advocate’s fee. Withholding the file is misconduct; the advocate must sue for his fee if it is unpaid. Rule 39 also requires the new advocate to obtain the earlier advocate’s consent or the court’s permission before appearing.

Application and conclusion. Here there is not even a claim of unpaid fees. The client may revoke the vakalat at any time. He should (i) write to the advocate revoking the authority and demanding the file; (ii) engage a new advocate, who should ask for a no-objection and, if it is refused, apply to the court under Rule 39 explaining why consent could not be produced; (iii) if necessary apply to the court to direct return of the papers; and (iv) complain to the State Bar Council under section 35. In R.D. Saxena the advocate held a bona fide belief that he had a lien, and the punishment was reduced to a reprimand. A refusal without any reason would be treated more severely.

How this is examined

The theory question is answered under the five headings above, with rule numbers. June 2017 asked the trustee point directly: “An advocate has fiduciary relation with his client and occupies the position of a trustee with regard to the money of his client”; answer it from Rules 25 to 32 and Harish Chandra Tiwari. The money-lending problem appeared in December 2018 and the file problem in June 2018.