Advocates Can't Be Brought Under Consumer Protection Act Just Because Doctors Are, Both Professions Different: Argument Before Supreme Court

The issue, crucial for members of the Bar, emerged from a judgment delivered by the National Consumer Disputes Redressal Commission in 2007. The Commission had ruled that the services rendered by lawyers are covered under Section 2 (o) of the Consumer Protection Act. The said provision defines Service.

It was held that a lawyer may not be responsible for the favorable outcome of a case as the result/outcome does not depend on only the lawyer's work. However, if there was a deficiency in rendering services promised, for which he receives consideration in the form of a fee, then the lawyers can proceed under the Consumer Protection Act.

The matter is placed before Justices Bela Trivedi and Pankaj Mithal. The details of the previous gearing can be read here.

During today's hearing, Senior Advocate Narender Hooda, who appeared on behalf of the appellant, completed his submissions. At the outset, Hooda cited the Supreme Court judgment in Indian Medical Association v VP Shantha's (1995) 6 SCC 651, which held that healthcare services are covered under the Act.

Taking a cue from the observations in this aforesaid decision, Hooda tried convincing the Bench that the medical profession is different. Hooda went on to submit that though the client pays fees to the lawyer, the former cannot be in a position where he says, “I pay you so I will call the tune”. Hooda reiterated that a lawyer cannot be seen as a mouthpiece for her client.

Placing his reliance on the Bar Council Rules, Hooda averred that lawyers also have a duty towards their colleague (appearing for the other side) and duty to be fair.

At this stage, Justice Trivedi interjected and asked the Counsel: “Can you say something adverse to the interest of your client, even if you believe that is not right? In a way you are a mouthpiece to you client.”

Hooda fervently opposed this view and submitted, “My duty is to assist the Court in performing the sovereign function. That is the first duty. In that duty I will espouse the cause of my client within the permissible four corners of law. If there is some document which is against the interest of my client and I have it in my brief, I cannot withhold it, in law, from the Court. If there is a judgment against me directly, I cannot withhold that judgment.”

Further, elucidating this, Hooda also argued that while a patient can ask a doctor not to prescribe any particular medicine similarly, a client cannot ask a lawyer to not cite any specific judgment.

Highlighting the distinction, Hooda averred: “There the relationship is this, if the patient says that you are prescribing me this medicine, I will not take it. My client cannot say that don't cite this judgment and cite only this judgment. This is how, my lords, my profession is completely different and this is how public policy element is involved in legal profession.”

Unlike doctors, if a lawyer is engaged by a client, then the former has no discretion to exit without any reasonable cause being given., the Senior Council submitted. Similarly, a client cannot change a lawyer unless, as per the Bar Council Rules, there is a no-objection certificate of the lawyer.

Continuing with his arguments, Hooda also placed his reliance on the Delhi High Court Judgment, wherein it was held "professional activity" of lawyers does not fall within the category of "commercial establishment" or "business activity," and the firm of lawyers is not a "commercial establishment." It may be noted that consequently this position was affirmed by the Supreme Court as well.

At this stage, Justice Trivedi inquired: Doctors are put in business category?

Hooda replied: All clinics and all hospitals

Moving on, Hooda also pointed out that an institution run by a physician, such as a nursing home, can advertise without any bar, unlike Advocates (who are prohibited from soliciting their work).

“An individual doctor in a one- room clinic is a nursing home…So, my lords, for this reason also doctors cannot claim parity with the lawyers.,” the counsel submitted.

By the end of the arguments, Hooda stressed that a client cannot be given the handle to judge the lawyer and sue him/ her. Elaborating, the Counsel said that if this is permitted then it will allow a collateral challenge to the binding decisions. It will lead to re-trial., the counsel said.

He also highlighted that under the new 2019 Consumer Protection Act, the consumer complaint can be filed where the complainant resides. Illustrating this situation, Hooda submitted: “Some Client from Tamil Nadu comes to me and engages me here. I do a case. He can go back and file the complaint there in a district consumer forum..”

However, Justice Trivedi promptly said that this is true for doctors as well. Countering this, the Counsel said that this would be an exception because all professional services are rendered locally.

Concluding his arguments, the counsel made a last attempt at trying to convince the bench by averring that even in the Bar Council rules, the duty to the Court comes first, which is unlike any other profession, including doctors.

Following Hooda's submissions, Senior advocate Guru Krishnakumar placed his submissions on behalf of the Bar Council of India.

The Senior Council cited some of the landmark decisions. This included R.Muthukrishnan v. Registrar General High Court of Judicature at Madras (2019 16SCC 407). Therein, the Apex Court had, inter-alia, also observed:

“14. The legal profession cannot be equated with any other traditional professions. It is not commercial in nature and is a noble one considering the nature of duties to be performed and its impact on the society. The independence of the Bar and autonomy of the Bar Council has been ensured statutorily in order to preserve the very democracy itself and to ensure that judiciary remains strong. Where Bar has not performed the duty independently and has become a sycophant that ultimately results in the denigrating of the judicial system and judiciary itself. There cannot be existence of a strong judicial system without an independent Bar.”

Thereafter, in order to bolster his submissions, the Counsel also cited the decision wherein the Apex Court had reiterated that a lawyer demeans himself if he acts merely as a mouthpiece of his client.

Taking a cue from this, he pleaded that the profession of a lawyer cannot be equated with any other profession.

“When I undertake to serve a client, provide the service of lawyering to Client. Please do not equate me with other professions.”

Justice Trivedi, chiming in, said: “Doctor is also not supposed to do what a patient says.”

The Counsel acceded but highlighted that there is a distinction. He said that a doctor undertakes to produce a certain result for the client.

“A X surgery is prescribed with a certain intended result or a wide diagnostic treatment is provided, again with an intended result. Now, there, at some stage, it is really as between the surgeon and the patient and of course, other people connected with that.,” the counsel explained.

He differentiated this position from that of lawyers, where there is a third element, namely the Court. Besides this, the lawyer also has to perform his duty to the Court and to the opposing counsel.

“This is where we say please do not treat these (lawyers and doctors) being at par. I fully bow down to the position that the medical profession is far from certain in terms of its conclusions…there are still uncharted territories. No doubt about it.,” Counsel added.

At this, Justice Trivedi said: That is also as noble as legal profession.

The Counsel firmly concurred with this, but he went on to argue that today, the medical profession is completely organized on commercial lines.

“When I open the paper today, I am able to see full page advertisements….can this ever be done in respect of a profession. Ther is a fundamental distinction on the manner in which the professions are structured. I will show in terms of government allocations that how today, medical service is part of infrastructure service where money is pumped in by the State….There is a provision even in the old Medical Council Act for minimal advertising. Under the new act its even more , though they have kept in abeyance but I will show those provisions.”

Justice Trivedi posed: You mean to say that merely because the advertising is not permissible, the legal profession has not become commercial? What the law firms are doing?

However, the Counsel replied that he was trying to submit something else. He asserted that the structuring of the professions is different. That is where the distinction lies, counsel said.

Addressing the court's inquiry on the issue of law firms, the counsel submitted “The point is this that the essential character of profession remains the same. That is important, my lords. That is where the distinction has to be drawn between this and other professions….this has to be looked at not from the point of view of some firms which may be existing in metropolitan cities. We are looking the profession in respect of the persons practicing in the remotest corners of the country. They form the bulk of practice.”

When Justice Trivedi said that the same is the position with regard to medical services in remote places, the Counsel averred that there is a difference because there is some kind of organized setup.

Krishnakumar also submitted that a lawyer can face action as per the Bar Council rules if there is any professional misconduct. Hence, it is not as if there is no remedy against a deficiency of service on the part of an advocate, he stated.

The arguments are likely to continue tomorrow.