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The Rule of Lawyers: Examining legal advisers’ de facto legal immunity in India

Dear Clients. Ever tried fighting a lawyer in India? Don't.
Dear Clients. Ever tried fighting a lawyer in India? Don't.
Mint column: Lawyers should be the noble and independent servants of justice, the courts and their clients. Finding lawyers who do all three of those things is the exception, rather than the rule.

For starters, Indian clients have very little, if any, recourse against lawyers who give them bad, negligent or harmful legal advice, as explained in today’s Mint feature. But that is just the tip of lawyers’ legal immunity iceberg.

Let’s take a fictional but realistic example. A law firm represents you in an existence-threatening litigation in the Delhi high court against your competitor. Unfortunately, your lawyer has a party the night before with counsel and they both miss the hearing. While they sleep, the court passes an ex-parte order stopping you from trading in your biggest product. Your company loses crores of rupees before you can get a stay on the order.

What do you do?

If you are a big company or a major client, you can try to bully the law firm by threatening to give all your future work to its competitor (of which, considering the size of the market, there may not be many). If you’re good, you might cajole the firm into giving you free legal advice for the next deal or two (though you will likely get what you pay for. And you’re still sitting on your loss).

Another option is to file a local bar council complaint against the lawyer. It is estimated that the Delhi bar council disciplinary committee alone, for example, hears around 1,000 complaints against lawyers per year.

Although the bar council does not publish any statistics, it is believed that as few as one in 10 of such complaints results in any sanction against the lawyer, according to a person close to the body.

(Infamously, senior advocate RK Anand was fined only Rs 5 lakh by the bar council for inducing a witness in the 2010 BMW hit-and-run case to lie – he was only stripped of his senior advocate tag and disbarred for four months later after having been found guilty of contempt by the Delhi High Court.

And even if the bar council were to ultimately punish the advocate and disbar him or her, the client will see no compensation for the loss suffered.

As described in today’s feature, the rise in the popularity of legal advisers’ liability insurance policies could mean that this is changing, but the fact that only foreign clients ever ask for insurance might be evidence of how little hope Indian clients have of ever benefiting from it.

Getting a court to make the lawyer pay for the loss he or she has caused is tough, if not impossible. First, you’ll require saintly patience to outlast a lawyer in Indian courts. Then, you’ll have to best your ex-lawyer in the arena where he or she makes a living -- that’s something like voluntarily stepping into the ring with the heavyweight boxing champion.

Next, you’ll have to find a competent lawyer who will deign to represent you, which is easier said than done. For instance, HSBC tried recovering a fairly straightforward outstanding loan from the law firm FoxMandal Little, as it was called in 2011 before its break up with Little & Co. The bank asked a well-known Mumbai-based finance law firm to help, but the lawyers declined to act against and alienate a fellow law firm (HSBC ultimately did find other representation).

And if you do finally take your lawyer to court, the risk is there that the legal profession as a whole may blacklist you (perhaps as collective retribution or out of fear of being sued by you in future), and you may have a hard time finding good lawyers to act on your other cases and transactions.

The popular perception may be that everyone, even the most unpopular criminal, terrorist or mass-murderer, deserves a lawyer, but that rule does not seem to apply if you’re suing a lawyer.

Neither do you appear to deserve legal representation in Bangalore if you are a member of the media and (allegedly) mis-reported the bloody street battles between lawyers, cops and the media earlier this month. The upset advocates’ association issued a ban on lawyers representing media houses.

Without taking sides in the Bangalore riots and whether or not the lawyers were provoked by reporters, local goondas or the police, it is a fact that advocates are not always the best-behaved bunch. They often protest, occasionally riot, and go on strike with alarming regularity against taxes, new laws and more. It is fair to say that none of this helps reduce the growing mountain of pending cases.

You could argue that India has a rich tradition of an independent bar, whose lawyers stood up against oppression and injustice.

You could also blame a few local lawyer-cum-bar-politicos throwing their weight around; they sometimes have ambitions of graduating to the big political arena after stints at local bar associations or bar councils.

But whichever way you do look at it, it is hard to reconcile violence, mass industrial action and protests about fraternity grievances, with the ideal of the legal profession as a “noble” one.

The crux of the matter is that lawyers are effectively above the law in India. The legal profession, by definition, enjoys a de facto monopoly over the administration of and access to justice. Lawyers therefore have it good in India, under the powerful “Rule of Law” and a slow and therefore often torturous judicial system, that only they understand.

It is well-known, particularly in Delhi, that once you flash an advocates’ card, a traffic cop will smile and let “vakil sahib” drive off, no matter how drunk you are. The thinking behind this, I am told, is that the police are worried about lawyers uniting and causing trouble in criminal cases the police are fighting, or actually launch a case of their own against the cops.

If even the police is afraid of lawyers and the courts, what chance will clients ever have?

Legally India has an exclusive content partnership with Mint, which will feature the latest legal news and analysis every fortnight on Fridays in its print and web editions.

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