'Lawyers Function In An Environment Beyond Their Control' : SCAORA Urges Supreme Court To Not Apply Consumer Protection Act To Advocates

The Supreme Court Advocates-on-Record Association (SCAORA), which has intervened in this matter, brought out four important aspects to argue that these services would not come under the ambit of the Consumer Protection Act. One of the aspects was that lawyers do not have control over the environment in which services are rendered. Senior Advocate Jaideep Gupta, representing the advocates' body, explained this by saying how the same can be controlled in other professions. 

For instance, a doctor, when treating his patient, can choose relevant factors like operating theatre. However, this is not the case with lawyers, where Judges control the environment. Gupta also clarified that this is in the interest of justice. He also said, in a lighter vein, “If I continue endlessly and your lordships stop me, that is in the interest of Justice. Can I then turn around and tell my client that I wanted to cite some other judgment but my lords did not allow me?.”

Therefore, he said that the product that is coming into existence is the judgment. Lawyers render services in a particular environment that is not entirely under their control. Based on this, the Senior Counsel pleaded that it is not correct to assess the lawyers on the kind of service that they render under these circumstances.

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 as a fee, then the lawyers can proceed under the Consumer Protection Act.

The appeal against the NCDRC verdict is being heard by a Division bench of Justices Bela Trivedi and Pankaj Mithal.

During Gupta's submissions, Justice Trivedi put a proposition that if, in a Specific Performance of Contract matter, an advocate fails to mention in the pleadings that the client is ready to perform his part and also fails to pray for the refund, whose negligence would it be?

“You are hired for your legal acumen or your legal expertise. If you fail to do so as a result of which your Client suffers, could it be said that you are not in the right environment?,” she asked the Counsel.

Gupta answered this by saying that to protect the litigant against one or two unlikely situations, it would not be proper to extend this 'danger' to all the remaining situations.

“There may be a 100 situations. Suppose, two out of these situations appear, on first blush, to be a negligence, 98 of these are incapable of being assessed on any standard then it is not proper to expose all lawyers to that danger.”

To counter this, Justice Trivedi promptly asked about cases where the lawyers were not present and if the matters were being called out. "Would it not amount to the deficiency of Service?" she asked. 

To answer this, the Senior Counsel submitted that the way cause lists move can be very difficult to keep track of. Non-appearance might be due to several cases in different courts being called simultaneously. These are situations beyond a lawyer's control. Further, civil action might be taken if a lawyer does it negligently. The question is whether all lawyers, in all situations, should be exposed to a summary jurisdiction under the Consumer Protection Act, he added. 

Regarding the standard of care, the Counsel also submitted that, unlike the medical profession, no standard has been or can be laid down for lawyers. To support this, he referred to the judgment in Indian Medical Association v VP Shantha's (1995) 6 SCC 651, which held that healthcare services are covered under the Act. In Shanta's case the standard cited was Bolam v. Friern Hospital Management Committee.

“The standard of care which is required from medical practitioners as laid down by McNair J. in his direction to the jury in Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582, has been accepted by the House of Lords in a number of cases.”

Pertinently, in Bolam, McNair J. had stated:

“But where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”

Based on this, it was averred that while there is a clear test for medical professionals, there is no such test for legal practitioners. "There cannot be a test…In advocacy, there cannot be a standard", the Senior Counsel added highlighting that the style of advocacy differs from lawyer to lawyer and there cannot be a uniform standard.

Gupta agreed that while a lawyer renders services to the Client, all services do not come under the Act. Further, it is for the Court to decide that which Services would fall under the ambit of the Act.

“It is a Service but all services do not come under the Consumer Protection Act and it is for the Court to decide which Services come and which do not.”

Moving forward, the Senior Counsel highlighted the four important duties of an advocate towards his client, the Court, the other party and its Counsel and the public. Taking a cue from this, he stressed how conflicts will arise in an advocate's duty. This might also result in a compromise of the advocate's duty towards the other party and the Court as well. 

Explaining this, the Counsel also referred to a situation where, in the course of arguments, a lawyer ought not to denigrate the other side's counsel so that it becomes a point of embarrassment for him/ her. Similarly, a lawyer shouldn't raise such grounds against the other side that are not proper. For example, the senior counsel proposed that in a case where character evidence has not been delved into, the lawyer goes into it in detail. In such a case, he/ she is not acting in accordance with his/her duty to the other side. 

“As between these four duties conflicts will arise. I could do better for my client if I compromise my duty to the other side. Certainly, my lords, I can do better if I compromise my duty towards the Court. If I did so, the Client may actually get some advantage as a result. But the law, as your lordship has laid down, and as we teach to every batch of Advocate-on-Record, that in the event of the conflict, the highest is your duty to the Court. So, there are situations where, even though I am hired for consideration by a particular Client, I may go against his interest.” the Counsel added. 

Thereafter, Gupta argued that these ethical considerations are for the administration of Justice. Underscoring its importance, he put another example before the Bench. Gupta illustrated an example - in an ex-parte matter, where the order/ judgment is pronounced without the presence of the opposite side's counsel, and the advocate (present before the Court) relies on an overruled judgment. Based on that, the Court delivers the judgment. Pertinently, he said this from the perspective of the District Judiciary, where there are no law clerks to point out the same mistake. So therefore, it is very important that a lawyer must be told that you have a duty not to cite an overruled judgment., Gupta asserted before adding the practical difficulties that will arise from situations like these. 

"The practical difficulty that will arise is that a lawyer will inevitably give up all his other duties and will only do his duty to his Client. He will say that the only man who can sue me and get me into trouble is the Client, so I do not care about anything else; I am going to do what he is biding and whatever I have to do save him."

In this context, Gupta, further in the proceedings, also submitted that a lawyer has a unique power of compromise. He said that, in the course of the hearing, many procedural compromises may or may not have an impact. Herein, Gupta cited another practical example where a lawyer, depending on the circumstances of the matter, withdraws the petition, for example, to avoid adverse observations coming on record which may affect a future litigation.  "Can he (client) then say that I did not instruct you to do the same, you are negligent?" Gupta asked.  “This is power of the Counsel to take a decision at the spur of the moment. Now, he will not, if there is a possibility of his client filing a litigation against him for having done that, he will just proceed as if he does not need to take any decision on the part of the Client which would not be in the interest of the justice.”

Justice Trivedi observed that the question of negligence will depend on the facts of each case.

Reasoning In Shanta's Case Might Require a Re-Look

Today, the Court also witnessed the remaining arguments of the Bar Council of India. Senior advocate Guru Krishnakumar, representing the Council, highlighted some of the discrepancies in the mentioned case and requested the Bench to consider placing it before a three-judge bench for an overview.

At the foremost, Krishnakumar mentioned that in Shanta, the Court has cited the case of Lucknow Development Authority v. MK. Gupta, 1994 (1) SCC for the definition of Service. Here are the concerned paras of Shanta's case:

“The definition of `service' in Section 2(1)(o) of the Act can be split up into three parts - the main part, the inclusionary part and the exclusionary part. The main part is explanatory in nature and defines service to mean service of any description which is made available to the potential users. The inclusionary part expressly includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical of other energy, board or lodging or both housing construction, entertainment, amusement or the purveying of news or other information. The exclusionary part excludes rendering of any service free of charge or under a contract of personal service.

The definition of `service' as contained in Section 2(1)(o) of the Act has been construed by this Court in Lucknow Development Authority v. M.K. Gupta, 1994 (1) SCC.”

The Counsel articulately linked this with the fact that the question in Lucknow development was whether statutory authorities such as Lucknow Development Authority or Delhi Development Authority, or Bangalore Development Authority are covered under the Consumer Protection Act.

Based on this, the Counsel said “There is a problem in approach.”

“The only issue we have is that Shanta proceeds on the basis that this expansive definition which has been given to service will be adopted ipso jure. Which where the problem is. That expansive definition that was there was in the context of certain types of Services and in respect of a particular question….In my respectful submission , this important point is ought to be looked at.”

Citing other problems, he referred to the paragraph which stated that complicated cases can be relegated to the civil court. For convenience, the relevant para is as follows:

“In complaints involving complicated issues requiring recording of evidence of experts, the complainant can be asked to approach the civil court for appropriate relief. Section 3 of the Act which prescribes that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force, preserves the right of the consumer to approach the civil court for necessary relief.,” the Counsel submitted. 

At this, he averred “Law is absolutely hazy, where is the line to be drawn which is complication and which is not complicated.”

In view of these averments, he requested a re-look at some of the reasons in the VP Shantha's, and the same may be placed before a three-judge bench.

Senior Advocate Manan Kumar Mishra, Chairperson of the Bar Council of India, also addressed the Court, arguing against bringing lawyers under the Consumer Protection Act

The hearing in the matter is most likely to continue tomorrow.

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

Lawyer Assisting A Sovereign Function, Can't Be Brought Under Consumer Protection Act : Argument Before Supreme Court

Can Advocate Be Held Liable Under Consumer Protection Act? Supreme Court Starts Hearing

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