2000 (8) TMI 1001 - SC - Indian Laws

Whether an advocate has lien on the files entrusted to him by the client? Held that - It is true that an advocate is competent to settle the terms of his engagement and his fee by private agreement with his client but it is equally true that if such fee is not paid, he has no right to retain the case papers and other documents belonging to his client. Like any other citizen, an advocate has a right to recover the fee or other amounts, payable to him by the litigant by way of legal proceedings but subject to such restrictions as may be imposed by law or the rules made in that behalf.

Summary

Issues Involved:
1. Whether an advocate has a lien for his fees on the litigation papers entrusted to him by his client.
2. Whether the advocate's refusal to return the files to the client amounts to professional misconduct under Section 35 of the Advocates Act, 1961.
3. The appropriate quantum of punishment for the advocate's misconduct.

Detailed Analysis:

1. Lien for Fees on Litigation Papers:
The primary issue was whether an advocate has a lien for his fees on the litigation papers entrusted to him by his client. The appellant argued that he had a right to retain the files under Section 171 of the Indian Contract Act, 1872, which provides a general lien for certain professionals, including attorneys. However, the court held that litigation papers do not fall within the definition of "goods" under Section 171. The term "goods" as per the Sales of Goods Act, 1930, refers to movable property that has marketability. Litigation papers, which cannot be sold or converted into money, do not meet this criterion. Therefore, the reliance on Section 171 was found to be without merit.

The court also examined the common law position in England, where solicitors had a right to retain deeds, papers, or chattels in their possession until paid. However, this right was not directly applicable to advocates in India due to differing statutory frameworks and professional ethics. The Bar Council of India Rules explicitly prohibit advocates from adjusting fees against their personal liabilities to clients and do not provide for a lien on litigation files.

2. Professional Misconduct under Section 35:
The court concluded that the refusal to return the files to the client constituted professional misconduct under Section 35 of the Advocates Act, 1961. Misconduct is a relative term and includes any conduct that tends to bring reproach on the legal profession. The court emphasized that the cause in a court or tribunal is more important than the advocate's right to remuneration. Retaining files could impede the course of justice and harm the client's interests. The court noted that an advocate has a duty to return the files to the client upon termination of engagement, which is both a legal duty and a moral imperative.

3. Quantum of Punishment:
Regarding the punishment, the court considered two factors: (1) the absence of a prior Supreme Court ruling on the issue of lien over litigation files, and (2) the appellant's possible bona fide belief in having such a lien based on certain High Court decisions. Given these considerations, the court decided not to impose a harsh punishment. Instead, the court altered the punishment to a reprimand, while making it clear that future instances of such misconduct would attract appropriate penalties as determined by the Bar Council.

Conclusion:
The court held that an advocate does not have a lien on litigation papers for unpaid fees and that refusal to return such files constitutes professional misconduct. The advocate was reprimanded, but the court warned that future violations would result in stricter penalties. The judgment underscores the professional duty of advocates to prioritize the cause of justice and the interests of their clients over their right to remuneration.