Cover Story

Are Expensive Advocates Advocating Against Inexpensive Justice?

The professions of education, medicine and law have always been viewed and acknowledged to be the noble professions. Historically the legal profession across the globe used to be service-oriented. In India, even post-independence, clients used to place ex-gratia payment in to counsel’s pocket at the back of their gown/black robe without settling the fee. Whereas, today’s senior advocates are charging from 6 to 25 lakh or at times even more per appearance.

In reference to the case of C. Manohar v. B.R. Poornima, the Hon’ble Supreme Court of India, opined that legal profession is essentially service-oriented. Ancestor of today’s lawyers was no more than a spokesperson, who rendered his services to the needy members of the society by putting forth their case before the authorities. Their services were rendered without regard to remuneration received or to be received. With the growth of litigation, legal profession became a full-time occupation. The trend of the legal profession has changed….. profession has almost become a trade. There is no more service-orientation.”

However, as far as the concept of relationship of ethics with the profession is concerned, that has been intact since times immemorial. Among the ancient people who can be considered as ‘lawyers’ are the orators of ancient Rome. Athenians were not allowed to take a fee to plead the cause of another. The ban on fees was however abolished by Emperor Claudius, who legalized advocacy as a profession and allowed the Roman advocates to become the first lawyers but he also imposed a fee ceiling of 10,000 sesterces, which used to be a meager amount in those times. Rome like their Greek counterparts developed a class of specialists who were learned in the law, known as jurisconsults (juris consulti). Jurisconsults were wealthy amateurs who dabbled in law as an intellectual hobby.

In the United States, a lawyer is regarded as an officer of the court and is admitted to the Bar only upon an official oath. The first regulatory Code was written in 1836 by Judge Hoffman of Baltimore. Hoffman’s resolution suggests that justice should be the only motivation of lawyers. Lawyers must quote the law objectively with ‘honour’. This was followed by Alabama’s Legal Ethics Code of 1887. The Code stated that morality was the only safeguard to having a good professional Bar.

The American Bar Association (ABA) in the year 1908, approved the Code of Professional Ethics, which continued till 1960s. This was replaced by ABA’s Code of Professional Responsibility in the year 1969. Further, in a project called: Ethics 2000, the ABA recognized its model rules of professional conduct, comprising six core duties as, (a) litigation fairness; (b) competence; (c) loyalty; (d) confidentiality; (e) reasonable fees; and (f) public service. The Model Rules were further amended in August 2002 and August 2003.

In India the history of legal profession can be traced back to the establishment of the First British court in Bombay in 1672 A.D; by Governor Aungier. In the year 1726, Mayor’s courts were established in Bombay, Madras and Calcutta, but prior to that there were no legal practitioners. In 1791, judges felt the need of attorney to protect the rights of the clients. In 1793, Bengal Regulation VII was enacted as it was felt that in order to administer justice, only men of character and education, well versed in Mohamedan and Hindu laws and the Regulations passed by the British Government would be admitted to plead in the courts.

After Independence, in the year 1961, Advocates Act was enacted. As a result, admission, practice, ethics, privileges, regulations, discipline and improvement of profession as well as the law reform are to be governed under the Advocates Act.
Many complaints of varied nature have largely surfaced on the canvas of legal profession in India. Charging excessive fees is one such ills. Many lawyers and aggrieved litigants on condition of anonymity revealed that most of the senior lawyers of Supreme Court can be retained to represent ordinary matters in the Supreme Court for a fee between 5 to 25 lakh.

The senior advocates can also be retained to appear outside Delhi after adding the bills of business class or chartered flights and five-star hotel accomodation. The amount for losses incurred on unattended cases in Delhi during the outstation trip is also added to the billings.

However, the questions arise what is the source of designating an advocate as senior and who authorise them to charge the hefty fees? The answer to first is Section 16 of the Advocates Act, 1961. The answer to charging of hefty fees is arbitrariness of seniors and absence of regulatory control.

In M.P Vashi v. Union of India (W.P. No.632 of 2011), it was argued that most designated counsels by virtue of this weight carry the court with them, and the opponent who is represented by a non-designated counsel is unable to do justice to the poor client, even if he/she has a good case. This is because the designated counsels have some face value. However, the Bombay High Court in the aforementioned case observed that senior advocates can charge fees beyond what is fixed under the Rules, as the Fee Rules are only for guidance.

In contrast to the above, advocates of M.C Setalvad’s stature had fixed a standard rate of Rs. 1040/- for special leave petitions (SLPs) and Rs. 1680/- for final hearings. In those days a senior Supreme Court lawyer charging a fees beyond Rs.7000/- per appearance was looked down upon by the members of the fraternity.

In a recent judgement in Sunitha v. State of Telangana, delivered on December 5, 2017, the Supreme Court Bench of Justices A.K Goel and U.U Lalit said that hefty fees charged by advocates should be regulated, adding that the very essence of the legal profession was to provide inexpensive access to justice. A law needs to be brought in that sets up a cap on the lawyer’s fee.
The court was hearing a plea by a woman B. Sunitha from Telangana whose husband died in a road accident. B. Sunitha said that her lawyer, who represented her accident claim case in the lower courts, asked her to pay Rs. 3 lakh over and above the Rs. 10 lakh that she had already paid to him. In her plea, Sunitha accused the lawyer of exploiting her trust.

The Supreme Court in the case allowed the appeal. Among other issues, the court took, was whether the professional ethics require regulation of exploitation in the matter of fee? The court observed that Advocate’s fee in reference to percentage of the decretal amount is illegal. In this context, reference was made to in the matter of Mr. G; a senior advocate of the Supreme Court, wherein the Supreme Court had held that the claim of an advocate based on a share in the subject matter is professional misconduct. Rule 20 of Part (VI), Chapter II, Section II of the Standard of Professional Conduct of Etiquette reads, “An advocate shall not stipulate for a fee contingent on the results of litigation or agree to share the proceeds thereof.” The claim of the respondent advocate being against public policy and being an act of professional misconduct, proceedings in the complaint filed by him have to be held to be abuse of the process of law and have to be quashed.

Reacting to senior advocates’ charging exorbitant fees, International Lawyer, Dr. Surat Singh said,

“There is a difference between being emotional and being factual. Emotionally, in India we use highly honourable terms for legal profession like noble profession. For Courts, we use honourable expression like ‘Temples of Justice’. But these are only rhetorics. The reality in India is quite different. Saving few honourable exceptions, most of the lawyers in India will not move an inch without getting fees. So legal profession has become an industry. Either we close our eyes to the reality like an Ostrich or face the facts head on.
I believe in idealism as much as in pragmatism but idealism should have some foundation to stand on. I call it pragmatic aspirational. Both Indian Legal Profession and Indian courts have to face the realities as they are – before we aspire to make them as they ought to be. So there is a need for paradigm shift in our thinking about legal profession. In this connection, many changes are needed both in the mind set as well as in the minute provisions of Indian Advocates Act, 1961 & corresponding Bar Council Rules. Both Indian Advocates Act, 1961 & Bar Council rules are based on archaic thinking and dysfunctional assumptions. In my considered opinion legal profession should be treated like any other industry. It should be governed by the rules of market and like corporate; duty of social responsibility should be fixed. For example, every lawyer must be free to charge fees whatever market can provide but he/she should be duty bound to do atleast 25% pro bono cases. (free service in public interest). Thus, it would be more realistic arrangement.”

Commenting on exorbitant fees, UK based another International Advocate Madhumita Kothari said, “Something may be treated as justified or not based on a standard. Unfortuntely there is no set industry standard for charging fees. It varies with the status of the Counsel the grandeur of his office lay out, the trail of juniors and last the quality and magnitude of work. There are other important factors like ‘face value’ which till today I have not been able to understand but the power of interpretation lies with the honourable judiciary and the associated coterie.”

When asked if the noble profession of law has become a flourishing industry, Madhumita said,

“It was always a flourishing industry. It evolved within the boundaries of various legacies. So if an individual has the right legal legacy he is bound to thrive and prosper irrespective of his merit, Thus he learns the easy way as a result of a posh legal habitat which nurtures him thoroughly.”

Renowned advocate Khursheed Zaidi, having to his credit 40 years of court practice feels, “The phenomenon of exorbitant fees charged by senior lawyers is based on the demand of rich clients, especially the corporate clients who acknowledging the talent and vast experience of the advocate are willing to hire him on a good price within their means. Zaidi further said, “In Northern India, there is an old proverb, “Mian biwi raazi, to kya karega qaazi” (If the husband-wife are willing to tie the nuptial knot what objection does the priest solemnising the marriage have?) Its a mutual agreement between the willing parties viz. the client and tbe advocate. It is not an extortion. If you call it an industry, then I will say, yes, it is!”

However, in contrast to Zaidi’s view, senior advocate Soli Sorabjee has famously viewed that the act of senior counsels charging Rupees 30-40 lakh is nothing short of extortion and it is no excuse to say that the client can afford it.

A young lawyer Harshwardhan Sharma differed with the idea of legal profession being an industry. He said, “In the current era involvement of lawyer is not limited to courts and tribunals but the lawyer is today expected to be a ‘social healer’ as with the ever-increasing laws and statutes, a lawyer is supposed to play a very constructive, educating and leading role for the society. Traditionally, the law in India has been considered to be a noble profession and the same edge has to be restored. Seniors’ act of charging exorbitant fee to the tune of 6-25 lakh per appearance does not speak well of the image, the profession has held since ages. Seniors need to justify their open-mouthed demands.”

Supporting Sharma’s view, Group Captain D.V Arora said,

“Unfortunately the noble profession has become something below imagination of any sensible and educated individual. It has undoubtedly become a flourishing business and the ‘little man’ is lost in the conglomeration of black robed senior advocates. Government must bring in a law to regulate this nighmarish critical situation. The fee structure should immediately be capped by Bar Council of India after doing necessary amendments. The deficient service of advocates should also be covered under Consumer Protection Act. It is unfortunate that out of their whims and fancies senior advocates instead of guiding the young lawyers are busy in minting money. The face value of senior advocates in courts amounts to mockery of justice.

When asked whether the retired government personnel should be restrained from legal practice as they are getting government pension or else should they surrender their pension, Group Capt. Arora replied, “The retired government personnel should neither be restrained from practice nor they should be asked to surrender their pension as that is being given to them for having rendered their long service.” Arora also supported the idea of ‘no age bar’ for practicing lawyers since they can bestow on their creamy experience to the legal profession, Ram Jethmalani is one such example.

The Lawyers Update asked Dr. Surat Singh whether the phenomenon of ‘show of face’ really works? If yes, does it not amount to mockery of justice? Dr. Singh replied, “ The criterion of charging fee is dependent on the complexity of the case, level of expertise required, time and labour involved in the case and in appropriate cases, paying capacity of the parties. Only a hypocrite or ignorant person can ignore the reality of show of face in court but those persons whose faces are recognised, are also highly accomplished, more experienced, more effective than average lawyers. But we have to make sure distinction is made on merit and capability and not on mere connections.”

Disputing to Dr. Singh’s views, Harshvardhan Sharma said, “Infact, ‘show of face’ in the higher court does not matter until and unless the judge is non-biased; hence, if the show of face business is working, then it is the judges who are creating the mockery of justice by favouring those advocates.”

A British political cartoon showing a barrister and another man throwing black paint at a woman sitting at the feet of a statue representing justice

Sharma quoted philosopher Ali-ibne-Abi Talib, who once said, “don’t give weightage to who is saying but what is he saying?”. That way in my opinion, the cases have to be won on the basis of the home work an advocate has done, the logic of his arguments and the precedents, evidence he is referring to before the judge. If a senior advocate is gaining benefit on the basis of his hard earned experience and the proper understanding of the matter, then it is not the face but the skill that works.”

Giving her views on ‘show of face’, Madhumita said, “As a very qualified practicing advocate I usually avoided briefing ‘face values’. However, whenever the client was willing to pay, it definitely yielded results after briefing ‘ face values’, even if the face value did not perform as expected. The appropriate terminology to define this phenomenon would sound very critical on my part and fearing a contempt I rather not say much. Though, I am no longer in India, I am definitely disturbed by this phenomenon. Its a global phenomena and lot of the academia are writing about it. I also propose to add my bit in the near future.

Lawyers Update asked Dr. Surat Singh whether the Bar Council of India should come forward to control and regulate the fee structure/slabs, Dr. Singh replied, “ Rules of Bar Council of India themselves must undergo necessary amendments. Most of the Rules of Bar Council of India and Provisions of Indian Advocates Act, 1961 are archaic. For example, contingency fee is not allowed in India. It is nothing short of hypocrisy. India needs to be honestly selfish. Right now most of the Indians are hypocritically selfish. Hypocrisy must go and authenticity must be respected.”

Lastly, Madhumita concluded, “Medicine and Law are professions where experience matters a lot. So experienced people are needed to sustain the quality of the profession and handle critical issues.

Leave a Comment