SC Questions Bar Association on Treating Clients as Consumers and Holding Lawyers Liable for Service Deficiencies
During a significant hearing on February 22, 2024, pertaining to the case of the Advocates Association, involving the Bar of Indian Lawyers represented by its President Jasbir Singh Malik versus D.K. Gandhi Ps National Institute of Communicable Diseases (Diary No. 27751 – 2007), the Supreme Court posed inquiries to the advocates representing the Bar Association.
“Why Can’t Client Be ‘Consumer’ & Lawyer’s Negligence Be ‘Deficiency of Service’ Under Consumer Protection Act?”
The Senior Counsel responded, stating that the client, in this context, is the recipient of the service, not in a commercial or trade capacity
Dr Prem Lata Legal Head VOICE
During the hearing of an appeal against a case lingering for 17 years, the Supreme Court, which had previously stayed an order issued by the National Commission in 2007, raised several queries. The advocate representing the Bar of Indian Lawyers asserted that lawyers choose this profession for its noble character, highlighting its role in the judicial dispensation process. The advocate emphasized the fiduciary nature of the lawyer-client relationship, comparing it to a trustee relationship where trust and faith are pivotal.
The Supreme Court posed an additional query: In instances of service deficiency or negligence leading to loss for the litigant, is it possible to sue the lawyer for damages?
The counsel responded affirmatively, stating that indeed, in such cases, the litigant can pursue legal action for damages, specifically within a civil court.
Justice Mithal inquired further, questioning whether the authority of the civil court, despite the Bar Council handling misconduct cases, could be delegated to a specialized court.
The advocate for the Bar Associations explains that there are two approaches to the issue:
- The Bar Council has the power to impose the costs under the Act itself. Bar council does that in appropriate cases.
- The advocate for the Bar Associations elucidates that when considering the jurisdiction of a civil court, it entails a general principle in law. Several inherent problems arise within this framework, rendering it incompatible and unjustified if consumer commissions are allowed to function akin to civil courts.
Background of the Case
In reference to a case decided by the National Commission back in 2007, wherein the matter of D.K. Gandhi v M. Mathias (2007 CTJ 909 (CP)NCDRC) was addressed, it was ruled that services provided by an advocate to a client during litigation fall under the purview of the Consumer Protection Act. Following this decision, various advocate bodies, including the Bar of Indian Lawyers, Delhi High Court Bar Association, and Bar Council of India, approached the Hon’ble Supreme Court. The Supreme Court, led by Justice L.S. Panta and Justice B. Sudarshan Reddy, intervened and stayed the judgment of the apex consumer commission, asserting that lawyers offer legal assistance rather than a service to their clients.
This case has traversed through various levels, beginning at the consumer forum and reaching the State Commission in Delhi. On March 10, 2006, the State Commission ruled that advocates would not fall under the purview of consumer forums. In response, the aggrieved consumer filed a revision petition before the National Commission, which extensively examined the matter, citing numerous judgments related to services provided by professionals.
Acknowledging the nobility of the legal profession, reference was made to the case of Indian Medical Association v V. Shantha (1995 CTJ 969 SC), where the terms “profession” and “occupation” were extensively discussed. It was agreed that success in every case is not guaranteed for professionals, such as doctors, and if a medical professional cannot cure a disease, it does not imply deficient services under the Consumer Protection Act. However, the services rendered are recognized under the Act, highlighting the noble and life-saving nature of the medical profession.
Similar arguments were presented in the case of M.K. Gandhi, and a precedent was found in the matter of Srimathi v Union of India (AIR 1996 Mad 427), emphasizing that although advocates are governed by statutory enactments and rules, there is no provision enabling the bar council to address disputes between advocates and clients, including compensation for damages and refunds.
The National Commission also referred to the case of K. Vishnu v National Consumer Dispute Redressal Commission in 2000, asserting that, despite advocates being officers of the court, they cannot be exempted from their fundamental role of providing services to their clients in exchange for consideration. Additionally, the National Commission cited Mathew Jackob v State of Punjab (2005 CTJ 1085 SC), where the Apex court affirmed that, in the law of negligence, professionals such as lawyers may be held liable for negligence due to their specialized skills.
The Apex court is currently reviewing the case on its merits, marking the culmination of a nearly 17-year-long legal journey. The issues under discussion hold significant interest for consumers, especially considering that, over time, various professionals have been brought within the purview of Consumer Commissions through Supreme Court pronouncements.
The National Commission’s 2007 judgment is particularly noteworthy, characterized by its thorough and reasoned approach. It extensively referenced key excerpts from earlier Supreme Court judgments. The questions now presented before the Apex court are not novel; they were comprehensively addressed in the National Commission’s order, indicating a continuity in the legal arguments and considerations surrounding this case.
With the case emerging from a 17-year hiatus and finally coming under scrutiny, there is optimism among consumers for a favourable outcome from the Apex court. As the Supreme Court deliberates on the merits of the case, I will keep the readers informed and provide updates once a decision is reached