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Lawyer Fees, Monetary Gain And Ethics

The law-profession is a noble-profession wherein the clients'-concerns come before the lawyers' own, and ethics prevails over the lawyers' own self-interest. The cost of legal services varies because attorneys base their fees on the clients' ability to pay. Although a client's poverty may necessitate charging-less or nothing-at-all, it cannot be justified by his or her ability to pay for the service. We see lawyers like Ram Jethmalani charging as high as 22 lakhs per-hearing.

While there's divided opinion on this issue, with some lawyers arguing that without fee cap, lawyers would lose the notion of being a "noble profession" and turn into mere commodities that land up in the hands of the highest auctioneer. Others like Dhushyant Dave questioned whether the judges who were once attorneys, had not charged exorbitant fees? and how ironically now they believe fees ought to be capped.

He exclaimed how we do not live in a communist country where everything must be regulated. Courts ruled-that 'there should be a check on commercialization to the point of exploiting the plaintiff and inappropriate behavior to the point of intimidating the judge, a person's right to prompt and affordable justice should also be investigated if there has been a professional duty violation towards the court and the litigant.'

Ethics Of Attorney Fees.

An attorney should never take dirty/unethical money. But distinctions should be made as to what is "dirty/unethical money"? For-example- A man accused of robbing a bank-and-pocketing Rs60,000 suggests paying his lawyer a fee equal to-that sum. Before accepting it, should the lawyer first investigate how the-defendant acquired that-sum? Let us say he does look-into-it and discovers that Rs60,000 was deposited in the accused's bank account the day following the robbery.

Would the charge be against the law? Let us say Rs60,000 had been in that account prior to the dubious deposit. Then what? Ethically speaking if the deposited money was proved to be robbed money, the lawyer should not accept it. But in-the-second case where the money was deposited-in-the-bank prior to the robbing, it is ethically right to accept this money. This same fundamental-problem is seen in various-other-situations.

Also "professional misconduct" itself is not defined in the Advocates-Act or in the BCI (Bar Council of India) rules. How can conduct be regulated if it remains undefined?

Chapter 2 of "professional ethics for lawyers" by Raju Ramchandran talks about ethical-factors that attorneys should consider when determining their fees and retainers, highlighting the importance-of-transparency in fee-arrangements and written-fee-agreements (in-order-to-avoid disagreements-over-fees, particularly-for-contentious-cases).

Lawyers are expected to be open and honest with their clients about the reason behind their fees without any ambiguity, fee-amount, the range of legal services they offer, and how they are to be paid. According to Bar-Council-of-India Rule 46, 1961, all attorneys are required to keep in mind that any client who truly needs representation should get it, even if they are unable-to-pay for it entirely or adequately. Advocates have a duty to ensure free counsel is available to those who are oppressed and need legal aid.

Limitations Of Attorney Fees In Criminal Cases

In America, according to the Model-Rules, "a lawyer's fee shall be reasonable." According to the ABA Code, the assessment of the fee's excessiveness must be made from the perspective of a "lawyer of ordinary prudence." The test appears to be whether the fee is reasonable since a "clearly excessive" fee under the rules was defined as one that was higher than usual.

The Eight-Factor-Test-of-reasonableness was applied.[1] But the test-rules are poorly drafted and complicated, and are too lucid, they are intended-to-be construed in-accordance-with-their purpose.[2] Nonetheless, we discover that it is not an easy mechanism to weigh a lawyer's work and decipher whether he charges reasonably for it due to a lack of clear-cut test.[3]

Repercussions Of Exorbitant Attorney Fees In India

Charges that are excessive, charges without a written fee agreement, and the mixing of client money with the lawyer's own money are examples of such infractions. Lawyers who break ethical guidelines may be subject to disciplinary action from the Bar-Council-of-India, which could lead to the loss of their right to practice-law and be subject to civil liability and damage claims from their clients.

Supreme Court Recognizing The Issue Of Exorbitant Attorney Fees:

We see the Supreme Court acknowledging the issue of high legal costs in the case Sunitha v. State of Telangana[4]. Among other issues of whether fee can be determined with reference to percentage of the decretal amount charged? and whether the calculation of such fee can be unilateral and if the client-disputes the amount charged, whether the burden to prove the contract of fee will be on the advocate or the client?, We should concern ourselves with whether the professional-ethics require regulation of-exploitation in the matter of fee charged by advocates?[5]

Cases like KL Gauba1[6] were-looked-at, in-which it was determined that fees that's dependent on a case's success and that gives the attorney an interest or involvement in matter of the subject tend to degrade the status of the profession.[7]

In Mr. G.: A Senior Advocate[8], A lawyer's claim that's based on the subject matter's share is unethical and professional misconduct.[9]

Court held that, high-legal-fees are a violation of equal-justice for the underprivileged. Therefore, it is necessary to establish a "floor and ceiling of advocates' fees". It is "professional misconduct" on the part of lawyers to demand a portion-of-the claim-settlement as professional-fees.

To establish an effective regulatory framework for the legal-profession, the-court requested that the government enact legislation, appoint an external-Ombudsman to handle any complaints from litigants over the professional-legal-fees charged or unethical behaviour by attorneys and establish a settlement-mechanism.[10]

The Supreme-Court had concurred with the Deepa Bhure case ruling. The Supreme-Court asked for a law to be passed to stop the legal profession from becoming increasingly commercialised and to set a minimum-and-maximum-on-the-fees. The Supreme-Court cited the 131st Law-Commission-Report, analogous to public-hospitals for medical care. Even though this report was published in 1988, nothing has been done in the intervening 29 years.[11]

Self-regulation mechanism and the high-promising sections of the BCI (Bar Council of India) and Advocates-Act are all good in the books but in practise lawyers do break their ethical code of conduct for sheer greed of incoming more money. Thereafter, many suggest our government to take up the 131st report-of-the Law-Commission-of-India to regulate attorney-fees and not delay it.

In the RD Saxena v Balram Prasad Sharma case the Supreme-Court held-that an advocate cannot claim a lien over a litigation file entrusted to him for his fees.

Contingent Fees Cases:

While America considers contingent fees to be valid[12], India clearly considers it void.[13]

Would Regulating The Attorney Fees Actually Help?

Due to financial constraints, rather than because of fixed fees, most people with legal needs do not receive the help they need to resolve them. The fact that a lawyer's fee is beyond the means of the average person does not imply that it is excessive because the ethics system does not advocate that lawyers as a group satisfy the nation's legal needs.

The way in which pro-bono work is handled in the America's-Model-Rules-of-Professional-Conduct demonstrates that the ethics provision was not intended to ensure that the average person could afford to hire a lawyer. Even though the code advises-that "persons who cannot afford to pay-for legal service to-be-provided need-services,"

The merits and qualifications of a lawyer, his academic and lawyerly achievements would also be undermined because a highly efficient lawyer would not grow in his field after a certain point because the fees would be capped/regulated.[14] He and his peers would earn the same amount of money even if he were better than them at an earlier stage, as a lawyer.[15][16]There would be no special distinction for his excellence. To regulate attorney fees all these considerations are to be considered.

Courts have asked BCI to devise a method for calculating the fee that is consistent with the circumstances of the case, as specified in Rule 11.
I think, attorney-fees should be regulated because in-prevalent-days we see situations wherein a lawyer charges unreasonably, saying he has engaged himself in 40 days of intensive-workhours for the same quality-of-work which could be done by a-lawyer in 4 days. In the truest sense that would count as unethical and abuse towards his client. Young lawyers should take up cases of the poor on pro-bono.

According to Union-Law-Minister Kiren Rijiju, it is challenging to-control or set a-limit on-the exorbitant-fees some lawyers in the country charge, even-though efforts-are being made to-encourage qualified-lawyers to take on-cases for-the-disadvantaged for-free or at a low-cost.[17]

Legal professionals frequently demanding exorbitant fees is one of the main obstacles adding to the enormous backlog of cases still pending at-the-courts. Regulation of attorney-fees is necessary for emphasizing the value of the legal profession as a noble profession and to help lawyers understand that their work is more than just a means of making money. The legal profession is essential to improving how justice is administered. The public's trust in the legal system and the legal profession are inseparably linked.

Questions That Are Concern Of The Hour
Why should only the impoverished agree to exorbitant attorney fees? [18] Why can't efficient lawyers be more considerate and reasonable at setting their fee rates? How can educated lawyers who being so learned after all do not care about their profession being a "noble profession?" Is money so important that lawyers (who are aware of their client committing illegal acts) defend their clients who are potential criminals/ law breachers?

Will regulating attorney fees help or will it bring newer challenges like inefficient lawyers getting equal pay as a much more efficient meritorious lawyer just because they are in the same field for the same number of years? Would considerations be based on the success rate of an attorney only or would his seniority in the field also be considered? If merits and academic brilliance would even be a consideration in determining the upper limit of an attorney's fees?

  1. The most important details are the time and labour required, the novelty and difficulty of the legal questions involved, the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer, the fee charged in the locality for similar legal services, the amount involved and the results obtained, the time limitations imposed by the client or by the circumstances, the nature and length of the professional relationship with the client, the experience, reputation, and ability of the lawyer or lawyers performing the services, and whether the fee is fixed or contingent. Several other factors could also be considered by the courts apart from this.
  2. They are divided into two categories: maintaining access to the legal system for the poor and preventing abuse of trust.
  3. Gabriel J. Chin & Scott C. Wells, 'Can a Reasonable Doubt have an Unreasonable Price? Limitations on Attorneys' Fee in Criminal Cases', Vol. 41, Issue. 1, pp. 1 � 70 (2000)
  4. B Sunitha vs The State Of Telangana on 5 December, 2017
  5. Pooja Thakur and Piya Thakur, Supreme Court Calls For Regulating Hefty Fees Of Lawyers, MONDAQ (Dec. 21, 2017),
  6. AIR 1954 Bom 478
  7. The same thing has consistently been denounced as being unsuitable for the legal profession. An advocate may have a tendency to violate ethical standards if he has a stake in the litigation's success.
  8. (1955) 1 SCR 490
  9. It was noted in the case of VC Rangadurai versus D. Gopalan that the relationship between attorney-client is largely one of fiduciary duty. The "position of trust" is with the advocate.
  10. The standards of professional conduct and etiquette set forth by the Bar Council of India were found to have gaps that could easily be exploited to harass plaintiffs, as was done in this instance, and they lacked any guidelines regarding how attorneys should be charged for their services.
  11. Saswata Tewari, Regulation of fee of lawyers and doctors, BLOG IPLEADERS (Jan 10, 2021),
  12. Anushka Singhal, Concept of contingency fees of advocates: cross-jurisdictional analysis of contingency fee, BLOG IPLEADERS (Oct 22, 2021),
  13. The concept of contingency fees was established by the case Ganga Ram v. Devi Dasi. The court invalidated contingent fees on the grounds that they were against both professional ethics and public policy.
  14. Even though his expertise in a matter would be much more efficient and refined than his peers.
  15. Not every lawyer is going to excel the same way in the same amount of time.
  16. Because His ability to charge his client would be regulated by the government
  17. Pti, Difficult for govt to put cap on 'exorbitant' fees of some lawyers, says Kiren Rijiju E.T Times, (Feb 04, 2022)

Written By: Madhurima Mukherjee

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