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TMI Blog2000 (8) TMI 1001X X X X Extracts X X X X X X X X Extracts X X X X ..... ('the Act'). 2. As the question involved in this appeal has topical importance for the legal profession, we heard the learned counsel at length. To appreciate the contentions we would present the factual backdrop as under : The appellant, now a septuagenarian, has been practising as an advocate mostly in the Courts at Bhopal, after enrolling himself as a legal practitioner with the State Bar Council of Madhya Pradesh. According to him, he was appointed as legal advisor to the Madhya Pradesh State Co-operative Bank Ltd. ('the bank') in 1990 and the bank continued to retain him in that capacity during the succeeding years. He was also engaged by the said bank to conduct cases in which the bank was a party. However, the said retainership did not last long. On 17-7-1993, the bank terminated the retainership of the appellant and requested him to return all the case files relating to the bank. Instead of returning the files, the appellant forwarded a consolidated bill to the bank showing an amount of Rs. 97,100 as the balance payable by the bank towards the legal remuneration to which he is entitled. He informed the bank that the files would be returned only after settling his dues. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the appellant and the amount shown by him was on account of inflating the fees. Alternatively, the respondent contended that an advocate cannot retain the files after the client terminated his engagement and that there is no lien on such files. 4. We would first examine whether an advocate has lien on the files entrusted to him by the client. The learned counsel for the appellant endeavoured to base his contention on section 171 of the Indian Contract Act, 1872, which reads thus : "General lien of bankers, factors, wharfingers, attorneys and policy-brokers.-Bankers, factors, wharfingers, attorneys of a High Court and policy-brokers may, in the absence of a contract to the contrary, retain, as a security for a general balance of account any goods bailed to them; but no other persons have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to the effect." 5. Files containing copies of the records (perhaps some original documents also) cannot be equated with the 'goods' referred to in the section. The advocate keeping the files cannot amount to 'goods bailed'. The word 'bailment' is defined in section 148 of the Indian Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instrumentality in respect of his taxed costs of the suit, matter or proceeding prosecuted or defended by him." 7. Before India attained independence, different High Courts in India had adopted different views regarding the question whether an advocate has a lien over the litigation, files kept with him. In P. Krishnamachariar v. Official Assignee of Madras AIR 1932 Mad. 256 a Division Bench held that an advocate could not have such a lien, unless there was an express agreement to the contrary. The Division Bench has distinguished an earlier decision of the Bombay High, Court in Tyabji Dayabhai & Co. v. Jetha Devji & Co. AIR 1927 Bom. 542, wherein the English law relating to the solicitors' lien was followed. Subsequently, a Full Bench of the Madras High Court in 1943 followed the decision of the Division Bench. A Full Bench of the Patna High Court in B. an Advocate, In re AIR 1933 Pat. 571 held the view that an advocate would not claim a right to retain the certified copy of the judgment obtained by him on the premise that an appeal was to be filed against it of course the Bench said that if the client had specifically instructed him to do so, it is open to him to keep it. 8. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortant should have its even course flowed unimpeded. Retention of records for the unpaid remuneration of the advocate would impede such course and the cause pending judicial disposal would be badly impaired. If a medical practitioner is allowed a legal right to withhold the papers relating to the treatment of his patient which he thus, far administered to him for securing the unpaid bill, that would lead to dangerous consequences for the uncured patient who is wanting to change his doctor. Perhaps the said illustration may be an over-statement as a necessary corollary for approving the lien claimed by the legal practitioner. Yet, the illustration is not too far fetched. No professional can be given the right to withhold the returnable records relating to the work done by him with his client's matter on the strength of any claim for unpaid remuneration. The alternative is that the professional concerned can resort to other legal remedies for such unpaid remuneration. 10. A litigant must have the freedom to change his advocate when he feels that the advocate engaged by him is not capable of espousing his cause efficiently or that his conduct is prejudicial to the interest involved i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on being discharged, the litigant too has a right to have the files returned to him, more so when the remaining part of the lis has to be fought in the Court. This right of the litigant is to be read as the corresponding counterpart of the professional duty of the advocate. 14. Misconduct envisaged in section 35 of the Advocates Act is not defined. The section uses the expression 'misconduct, professional or otherwise'. The word 'misconduct' is a relative term. It has to be considered with reference to the subject-matter and the context wherein such term occurs. It literally means wrong conduct or improper conduct. Corpus Juris Secundum, contains the following passage at p. 740 (Vol. 7): "Professional misconduct may consist in betraying the confidence of a client, in attempting by any means to practise a fraud or impose on or deceive the Court or the adverse party or his counsel, and in fact in any conduct which tends to bring reproach on the legal profession or to alienate the favourable opinion which the public should entertain concerning it." 15. The expression 'professional misconduct' was attempted to be defined by Darling, J. in A Solicitor ex parte the Law Society, In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al obligations' of a lawyer are, distinguished from the 'business commitments' followed by trading community. The legal profession owes social obligations to the society in discharge of the professional services to the litigants. The Bar Council of India Rules say that : "An advocate shall, if at all times, compose himself in a manner befitting his status as an officer of the Court, a privileged member of the community and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar or for a member of the Bar in his non-professional capacity may still be improper for an advocate." According to the ancient traditions, the professional services rendered by the lawyers were honorary and the reward given to him was not a compensation for discharge of his legal obligations or legal assistance but in the nature of gratitude in recognition of the honorary services rendered by him. Among the Romans, it was one of the duties, which the patrician as patron owed to the plebsian to give protection to the latter in his law suits. For those who rendered legal assistance, Gibbon says in his book Decline and Fall of Roman Empire: "On the public days ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ending (it has been said) upon implied agreement. It has not the character of an incumbrance or equitable charge. It is merely passive and possessory, that is to say, the solicitor has no right of actively enforcing his demand. It confers upon him merely the right to withhold possession of the documents or other personal property of his client or former client. It is wholly derived from and, therefore, co-extensive with the rights of the client to the documents or other property." 5. According to Cordery, the property upon which lien can be claimed is in the form of deeds, papers or other personal property which comes into solicitor's possession in the course of his professional employment with the sanction of the client and/or client's property, such as bill of exchange, application of shares, share certificates, a debenture trust deed, a policy of assurance, letters of administration or money. After referring to various authorities of English Courts, the law relating to lien and its retention has been summarised in Halsbury's Laws of England, Vol. 44(1), 1995 edn., as under : "Property affected by retaining lien.-The general rule is that the retaining lien extends to any deed, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the right of retention has been much diluted by various exceptions created by decisions, chiefly by the Courts of equity on the basis of what may be just and equitable as between the parties with conflicting interests. 6. Alfred H. Silvertown in The Law of Lien states that where documents are delivered by a client to solicitor for a specific purpose, no lien is created unless there is an agreement to the contrary. The retaining lien extends only to the extent of solicitor's taxable costs and expenses arising from the instructions of client, for which the client is personally liable. The lien does not embrace fees and expenses which are due to the solicitor in some other capacity. To attract the solicitor's lien on a document of his client, it has to be specifically shown that the client had agreed with respect to the creation of lien upon the document in case of his failure to pay the solicitor's fee. 7. The Professional Practice Handbook, Young Lawyers Section, Law Institute of Victoria 1982 prescribes that it is the duty of a solicitor, when called upon by his client, to deliver him the documents in his charge. The solicitor is subject to the ordinary law of bailee of clien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le in the market as such. Where the Act does not define 'goods', the Legislature should be presumed to have used that word in its ordinary dictionary meaning, i.e., to become goods it must be something which can ordinarily come to the market to be bought and sold and is known to the market as such. Thus, looking from any angle, it cannot be said that the case papers entrusted by the client to his counsel are the goods in his hand upon which he can claim a retaining lien till his fee or other charges incurred are not paid. In the matter of 'G' a Senior Advocate of the Supreme Court, In re AIR 1954 SC 557 this Court observed that it was highly reprehensible for an advocate to stipulate for or receive a remuneration proportioned to the result of litigation or a claim whether in the form of a share in the subject-matter, a percentage or otherwise. An advocate is expected, at all times, to conduct himself in a manner befitting his status as an officer and gentleman by upholding the high and honourable profession to whose privilege he has been admitted after his enrolment. If an advocate departs from the high standards which the profession has set for itself and conducts in a manner whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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