To Object or Not To Object ?

Before I delve into this week’s topic of discussion, it is my personal belief that every lawyer should give their client the best representation they can in court.

This post is mainly to address the judgment dated 02/12/2016 of the Honourable High Court of Karnataka in the case of Karnataka Power Transmission Corporation Limited Vs. M. Rajashekara and others. But before we dig into this judgment I’d like to address a few ‘definitions’ as a precursor to understanding the post.

1.    Vakalatnama: Simply put, it is a document that gives the advocate the authority to represent his client in the court of law.

2.  Power of attorney: According to Power of Attorney Act 1882,“Power-of-Attorney” includes any instruments empowering a specified person to act for and in the name of the person executing it. 1A. Definition.—In this Act, “Power-of-Attorney” includes any instruments empowering a specified person to act for and in the name of the person executing it.

3.  Contract: The definition of Contract is given under S. 2(h) of the Indian Contract Act, which states, ‘a contract is an agreement enforceable by law.’

Now, the question before the Court was whether it is mandatory to obtain a ‘no objection’ from the previous counsel when the client for whatever reasons chooses to appoint another lawyer replacing his previous lawyer.

The vakaltnama is not a contract nor is it a power of attorney and hence the client has every right to unilaterally revoke the authority he gave his advocate for whatever reasons.

As a matter of courtesy, I have always given my no-objection in the few instances that I have had to face in the past 9 years of practice. I have also always had the previous counsel giving me their no-objection when I have replaced them as a client’s lawyer. The operative action here is being courteous. According to the judgment of the Supreme Court in R.D.Saxena v. Balaram Prasad Sharma [AIR 2000 SC 2912], and in New India Assurance Co. Ltd. v. A.K.Saxena [AIR 2004 SC 311] the client cannot be compelled to obtain a no-objection from the advocate who is already on record.

Lulu and I may be amongst that percentage of lawyers who will willingly give the no objection or request the client to obtain the same as a matter of being respectful to other members of the Bar. Just like the 5 fingers which are not alike we need to accept that not all advocates will be willing to do the same. Hypothetically if there is an advocate who is harassing his/her client and abusing their power, it would be extremely difficult for the client to deal not just with the lawyer but also the case. (People who bring their grievance to the courts usually tend to be harassed from the word go, if they end up with a counsel who adds to this, their plight will be unimaginable.)

Hence the court’s ruling that the need to obtain a no-objection from the counsel already on record in the case is validated.

That is just one side of the coin. On the other hand there are clients who will misuse this same judgment to their benefit. Without going into details, advocates who handle Motor Vehicle Cases or Land Acquisition Cases might suffer the most as their clients, after having benefitted from their counsel’s work end up appointing a new counsel during the fag end of the case to avoid payment of fees.

It is true that the lawyers have the option under Section 171 of the Indian Contract Act to obtain the fees due to them but when one again reads into the judgments passed with regard to the same, it has been held that the lawyers have a right to claim their fees or a percentage of fees that has already been deposited but if one has to look realistically most Indians won’t pay for something that hasn’t yet been handed over to them. Hence how does one go about claiming the same? There is also this other little thing; though it is personal I will still mention it – Who wants to become the lawyer who becomes famous for suing their client for non-payment of fees?

This leaves everyone with one option – be extra prudent. Ensure that you take on a client who is willing to pay a part of the fees in advance. Once the case is in the court and has reached a certain stage in the case again seek for a fees for all the miscellaneous expenses incurred. Basically a lawyer just has to secure his/her fees as the case progresses instead of blatantly waiting for a lump sum at the end of the case. Then again this isn’t the most practical or realistic option. Which leaves us with just one final option – have faith in humanity and hope people act honestly.