Services Rendered By Advocates Come Under Contract Of Personal Service: Supreme Court

In layman terms, 'a contract of personal service' relates to an arrangement where an individual is hired for rendering his/ her services. However, in the case of “contract for service” the services are availed from an independent service provider. Therefore, while in the former case, the individual is an employee, in the latter case it is always a third party.

To reason this, a Bench of Justices Bela Trivedi and Pankaj Mithal outlined certain unique attributes that are linked to a relationship between an Advocate and her Client. To name a few, these included fiduciary duties owed by an advocate to her client, advocates are not required to make concessions unless it is expressly instructed by her client, advocate being her client's representative shoulders a lot of responsibility, and she is expected to follow the instructions of her client and not upon her own judgment.

To quote from the judgment:

1) Advocates are generally perceived to be their client's agents and owe fiduciary duties to their clients.

2) Advocates are fastened with all the traditional duties that agents owe to their principals. For example, Advocates have to respect the client's autonomy to make decisions at a minimum, as to the objectives of the representation.

3) Advocates are not entitled to make concessions or give any undertaking to the Court without express instructions from the Client.

4) It is the solemn duty of an Advocate not to transgress the authority conferred on him by his Client.

5) An Advocate is bound to seek appropriate instructions from the Client or his authorized agent before taking any action or making any statement or concession which may, directly or remotely, affect the legal rights of the Client.

6) The Advocate represents the client before the Court and conducts proceedings on behalf of the client. He is the only link between the court and the client. Therefore, his responsibility is onerous. He is expected to follow the instructions of his client rather than substitute his judgment.

The Division Bench held so while deciding an appeal that raised the issue of whether advocates can be held liable under the Consumer Protection Act for deficiency in services. The Division bench had heard the matter at length before reserving its judgment on February 26.

The instant appeal had emanated from the decision of the National Consumer Disputes Redressal Commission (NCDRC) in the year 2007. Inter-alia, the Commission had held that if there was any deficiency in service rendered by the Advocates/Lawyers, a complaint under the Consumer Act would be maintainable.

Thus, the issue before the Court was whether advocates can be held liable under the Consumer Protection Act 1986 (as re-enacted in 2019) for deficiency of services.

Answering this, the Court perused the definition of 'Service' and noticed that it clearly excludes Services rendered under a contract of personal service. Thus, the Court went on to decide whether the Services provided by the advocates can be classified under “a contract of personal service.” Against this backdrop, the Court made the aforesaid observations.

The Court also drew its strength from the decision of Dharangadhra Chemical Works Ltd. vs. State of Saurashtra and Others., AIR 1957 SC 264. Therein it was held that “the correct method of approach, therefore, would be to consider whether having regard to the nature of the work there was due control and supervision by the employer”.

In order to assess whether the client exercises direct control over the Advocate, the Court cited several provisions of the Civil Procedure Code. One such concerned provision was Order III Rule 4, as per which a pleader cannot act in the Court for any person unless he/she is appointed by such person. Now, the document for appointing a pleader. The document used for the appointment of a pleader is known as “Vakalatnama”.

The Court noted that by virtue of such “Vakalatnama,” advocates have certain duties, including the one to their client.

In view of this above projection, the Court noted that “a considerable amount of direct control is exercised by the Client over the manner in which an Advocate renders his services during the course of his employment.”

After citing the above attributes, the Court concluded that Services of an advocate would come under the contract 'of personal service' thus, the same would stand excluded from the definition of Service as provided under section 2(42) of the Act.

“As a necessary corollary, a complaint alleging “deficiency in service” against Advocates practising Legal Profession would not be maintainable under the CP Act, 2019.,” the Court said. 

Counsels for the Appellants: Senior Advocate Narender Hooda and Advocate Jasbir Malik for Bar of Indian Lawyers, Senior Advocate Jaideep Gupta for Supreme Court Advocates-on-Record Association, Senior advocate Guru Krishnakumar for the Bar Council of India, senior advocate Manoj Swarup, for Punjab and Haryana High Court Bar Association, Senior advocate Vikas Singh, Senior Advocate Ramakrishnan Viraraghavan for Bengaluru Bar Association

Also from today's judgment: Advocates Not Liable Under Consumer Protection Act For Deficiency Of Services : Supreme Court

Judgment Bringing Doctors Under Consumer Protection Act Requires Reconsideration : Supreme Court

Case Title: BAR OF INDIAN LAWYERS THROUGH ITS PRESIDENT JASBIR SIGH MALIK vs. D.K.GANDHI PS NATIONAL INSTITUTE OF COMMUNICABLE DISEASES., Diary No.- 27751 – 2007

Citation: 2024 LiveLaw (SC) 372

Click here to read the judgment