One of the most important and significant part of a lawyer's professional
life is the lawyer client relationship. Once engaged professional, the lawyers
get bounded by ethical duties and observing these duties is an integral part of
the rules governing the conduct of lawyers. Even though these duties have been
addressed considerably but still certain difficulties are faced by lawyers when
observing such duties due to the different interpretations of the literature and
very little guidance is available in this matter.
We shall look over such issues arising at the very inception of the lawyer
client relation. Thereafter a purview on how lawyers have difficulties in
defining the extent to which they can take authority on behalf of a client who
might be mentally impaired or in other cases a minor. And finally, we shall see
the issues emerging during the discharge of this lawyer and client relation. To
conclude we shall understand that lawyers must be sensitized for these issues to
be well equipped to deal with the same situations.
Firstly, we shall understand what it means when we say, lawyer client
relationship. It is when a client approaches a lawyer to seek his/her advice on
legal matters or any case, and the lawyer agrees to do so for the client. Once
established in this ration, a lawyer is bound by certain obligations and ethical
duties that he/she must adhere to. These emerge out of the status and the nature
of the relation between the client and the lawyer.
This means that some of the duties would be dictated by the nature of the
contract with the client and others are based on the fiduciary nature i.e.,
trust between both. Observation of these is mandatory under the professional
conduct rules laid down on lawyers. We shall now trace and understand the
challenges that do arise from these rules. We shall mainly concentrate on issues
arising from the nature of the contract between the client and the lawyer and
not on issues pertaining to fiduciary nature i.e., "conflict of interest" or
We shall initially see the issues that sprout from the formation of such
relation, then the issues relating to conduct of authority in case of mentally
impaired or minor clients and finally the issues suspending out of the
termination of a lawyer client relation.
Ethical dilemma while forming of a lawyer-client relation
These start off in a very simple manner wherein a client requiring certain legal
advice or guidance approaches a lawyer and explains his requirements, then they
both reach an equal agreement, and a formal contract may be formed to deal with
the issue. There are no set rules that govern how the employment of a lawyer is
to be done. The Bar Council of India (BCI hereafter) does not state any
preexisting rules for the formation of a lawyer client relation. BCI states in
"It is by rule which bounds the advocate to work and accept a brief in a court
where he has proposed to practice at a consistent fees which is according to the
brief he is undertaking. However, he may elect to refuse to do so only under
So, accordingly this means that a lawyer should accept an agreement based on a
certain fee that he/she charges for that specific type of legal service. This is
how usually a lawyer client relation is formed. Therefore, even an oral
agreement wherein a fee has been decided for a type of legal service can also
establish a lawyer client relation.
So, does it mean that a lawyer is bound to accept each client that approaches
him/her or is there any sort of limit to which they can accept or refuse a case?
As per Rule 11 of the BCI, a lawyer can refuse a client under special
circumstance but there is no reference which states what can be considered a
"special circumstance". So, this is an issue which remains regarding the
formation of a lawyer client relationship.
Now to seek a solution, the American Bar Association Model rules of professional
conduct (2004) can be used as a guide. It states that a lawyer can decline a
client for providing legal services under a "good cause". So here, the term
"good cause" is equitable to "special circumstance" of the BCI.
So, in case of "special circumstance" of the BCI, a lawyer might decline a
- Refusal to accept a client on grounds of lack of knowledge:
Lawyer is unable to represent a client due to his own lack of knowledge of
expertise on the topic. This can indeed be taken as a case of special
circumstance wherein a lawyer unable to provide his advice due to lack of
professional knowledge is the imminent situation. It is one of the duties of
a lawyer to provide his/her client with representation while being fully
equipped with the certain required skillsets in terms of knowledge,
experience, and preparation regarding the case. In such cases wherein a
lawyer is unfamiliar with the case or lacks the skill to represent the
client in such a matter would account to the lawyer being able to decline
the client for acceptance of his case. In this case BCI is negotiating a new
rule i.e., Rule 4 wherein 'An Advocate may decline a specialist brief if
he/she considers himself not competent to accept the brief.'
- Refusal to accept a client on basis of the case becoming burdensome
for the lawyer:
Accepting the case might lead to cause burden to the lawyer so in such case
where a lawyer feels or is under a situation wherein he/she might not be
able to represent the client competitively due to their own lack of time due
to commitments of various natures and also not being prepared for the case
because of not being given enough preparation time. The new rule of the BCI
that is being negotiated states i.e., Rule 8, 'It is on the prerogative of
an advocate to decide to accept a brief only if they can attend to it. They
should assess and refrain from acceptance of a particular brief in case of
them not being available for the same owing to personal or other matters.'
However, the current BCI rules do not give any sort of leeway and entitle
the lawyers to accept the case even if it is outside their field of
expertise requiring them to consult or even employ other lawyers having the
required skillset for this case.
- Refusal to accept a client on basis of conflict of interest or
Rule 15 of BCI states, "An advocate must abide to his duties wherein he is
required to uphold and work in best interests of the client, this must be
done even if it causes some degree of unease to own. It is also his duty to
work in defense of his client even if he has different opinions than his
So in case of the lawyer having a conflict of interest regarding the views of
his/her client should be considered legit grounds for refusal by the lawyer to
accept a case. Otherwise, this would jeopardies the very essence of the lawyer
client relation wherein they both differ on views about the very case they are
The apex court observed regarding the same that,"It comes under the custom of
professional ethics of court where no lawyer can refuse to accept a brief when
payment is being provided by the client as per the stated fee and also taking
into account that the lawyer is available. So, any institution cannot pass a
statement saying they will not accept the case for any accused person who is
under suspicion of being a terrorist, rapist etc. as this is against the
constitution and the ethics of court." So, this decision has basically created a
sort of challenge for the lawyers when in a situation wherein they must take up
a case of an unpopular client or regarding an unpopular opinion.
Ethical dilemmas in case of authority of lawyers to make decision on behalf
In case of the BCI, there is very limited information onto the extent to which a
lawyer can take decisive actions for his/her client. This is in goodwill of the
client as all matters must be presented as the client desires however, it is the
decision and advising capability of a lawyer to present a case as he/she seems
conducive. This creates a sort of barrier in cases wherein a lawyer may be
required to take authoritative decisions for the client who are mentally
impaired or in cases of the client being a minor. Hence to cater for the same,
the supreme court stated in the case of Byram Pestonji Gariwala vs Union Bank of
"Only limited amount of authority has been given to lawyers when it comes to
being able to settle the particular case for his client due to him only being an
appointed counsel for his client. However, it has also been stated on occasions
that it is important for a lawyer to act on such instances under circumstances
which demand to do so."
This does entitle the lawyers to a limited authority over the decisive nature of
the case. However, the final settlement of the case cannot be done by the lawyer
until consent of the client is present.
And for cases of minors and mentally impaired clients, Section 46 of the
Juvenile Justice (Care and Protection) Act, 2000 gives the statement,
"In cases of a juvenile or a child being the one who is brought to court, the
ruling authority can and should give charge of the proceeding to any family
member or guardian when they deem fit."
Hence it provides that a guardian or next friend may instruct the lawyer on
behalf of the client and have authoritative powers on the case. However, under
cases of criminal nature, it is the client who is the responsible authority and
hence any advice on behalf of the client by the guardian or friend may be chosen
to be ignored by the lawyer if deemed necessary.
Ethical dilemmas during the termination of a lawyer-client relation
It usually ends with the completion of the case that was given by the client to
the lawyer. But it can also take place when a client discharges the lawyer from
the case or in other instances a lawyer withdraws from the case on own accord.
When termination of the relation does take place, the lawyer must return all the
files, documents, substances related to the case which were entrusted to the
lawyer by the client.
Also, the lawyer must provide the client with the statements relating to the
fees and the amount of money of the client given to the lawyer, which might be
unused by the lawyer for the completion of the case. However, there is an issue
as to what documents must be returned to the client by the lawyer as these are
not stated by the BCI in the rules of ethics.
However, regarding this matter it has been ruled by the supreme court that all
documents relating to the case must be returned to the client. Now another issue
had risen that what if the payment of the lawyer is not made by the client, can
the lawyer in this case withhold these documents in exchange of the payment to
be made by the client? In this matter the supreme court has ruled out in the
case of R.D. Saxena v. Balaram Prasad Sharma
"if a client does not want to continue the engagement of a particular advocate
it would be a professional requirement consistent with the dignity of the
profession that he should return the brief to the client. It is time to hold
that such obligation is not only a legal duty but a moral imperative."
It has also been decided by the apex court that a lawyer must withdraw
themselves if a client asks so. A client can change their lawyer at any instance
and is not required to give any reason for the same. As per the court:
"Any client who has employed any lawyer or advocate for his case must be given
full freedom to change them whenever they think that the lawyer cannot present
their case as they demand or that the lawyer is of a different opinion. They can
choose to do so due to any other reason as well and herein this case the lawyer
should respect the professional ethics of the court and give the brief back to
Finally, it must always be adhered to that even after the termination of an
agreement between a lawyer and a client, the lawyer must always uphold the
confidentiality in matters of the case with the client and this ethical
responsibility must always be respected as it can never be terminated once a
lawyer client relation is culminated.
For a justice and law system to work at the peak of its ability, it is important
and a need of the hour for all legal professionals to be fully dedicated towards
their work and be well qualified to deal with situations arising in their field
of expertise. They are the epitome of the legal system's framework and hence
responsibility of upholding the name of the court lies on their shoulders as
they are the officers of the legal court.
They need to be fully aware and ready to tackle and handle all sorts of
situations that may be presented to the court. Each member of the court needs to
be thorough with their duties to know the level of the official work they need
to overlook. Therefore it must be made a practice for all lawyers to be guided
through all these fundamental and professional issues that are part of the
ethical values of court.
These values are important when dealing with clients and it is on basis of these
that the lawyer client relationship is truly formed and governed. It provides
leeway to the client as well as the lawyer to mould and ascertain certain
actions so as to tackle situations are may come up during the course of the
case. They need to be sensitised about the challenges and their solutions that
can be adopted while staying within the boundary of rules laid down by the
This helps in making a lawyer professionally sound in his field of work. Only
when these are clear and understood by all members of the law framework, the
court can properly serve their clients in an efficient and effective manner.
Challenges are part of any organisational workforce however what is more
important is the fact that these are recognised by an association and then
resolved in a professional manner.
Written By: Devanshi Sharma,
- Part VI, Chapter II of the Bar Council of India Rules framed under the
Advocates Act, 1961.
- Rule 6.1 of the American Bar Association Model Rules of Professional
- (1992) 1 S.C.C. 31.
- (2000) 7 S.C.C. 264
Final Year LL.B. (Hons.) - Jindal Global Law School, O.P. Jindal. Global University