In India, an advocate-client relationship is a relationship of ‘uberrimae fidei’ i.e. of ‘utmost good faith.’ A client relies solely on the expertise of an advocate. But to provide expertise, can the advocate charge any fees from the client? Is it not a moral duty of an advocate to charge reasonably? Should there be any cap or rules to regulate the fees charged by an advocate? Is there any law enacted to regulate advocates’ fees?
Introduction
Bombay High Court, in 2021, dismissed a petition filed regarding the hefty fees paid by the Bombay Municipal Corporation to a Senior Advocate in the case of Kangana Ranaut Vs. B.M.C. only on the ground that there is no law enacted to regulate the fees paid to the Advocates. This dismissal led to a serious discussion regarding the regulation of Advocates’ fees and the importance of laws enacted in the same area.
Unfortunately, there are no laws in India that regulate the fees charged by Advocates. Some provisions stated in other laws act as guidelines, like Article 39A of the Constitution of India and some rules stated in the Bar Council Rules.
Free legal service under Article 39A of the Indian Constitution
Article 39A of the Constitution mentions Free Legal Aid that assists the people who cannot afford legal representation and access to the court system. It guarantees equal access to the justice system to persons who are not financially sound by providing legal and professional assistance free of cost or at lower fees.
In the words of Justice P.N. Bhagwati, “Legal Aid means providing an arrangement in the society so that the mission of administration of justice becomes easily accessible and is not out of reach of those who have to resort to it for enforcement the poor and illiterate should be able to approach the courts and their ignorance and poverty should not be an obstacle in the way of their obtaining justice from the courts. Legal aid should be available to the poor and illiterate, who don’t have access to courts. One need not be a litigant to seek aid through legal aid.”
An Advocate must help people who need legal representation. This profession is his bread and butter. So, the only solution is to maintain a balance between them.
Rules of Bar Council of India on Advocate’s Fees
Chapter 2, Part 6, Rule 11 of the Bar Council of India Rules states that an Advocate cannot refuse to take briefs from the client without any valid reason. An advocate should levy fees that are at par with the fees collected by fellow advocates of his standing at the Bar and the nature of the case. He must justify his refusal to accept a particular brief, or it will amount to professional misconduct.
In the same part, Rule 20 prohibits advocates from accepting contingency fees and fees on a percentage basis. It states that ‘An advocate shall not stipulate for a fee contingent on the results of litigation or agree to share the proceeds thereof.’
Ganga Ram vs. Devi Dasi (1907) is a landmark judgment on the concept of contingency fees. The Court held contingent fees void and said that such a fee was against the public policy and went against the ethical conduct of the lawyers.
The Hon’ble Supreme Court also states that if any Advocate demands fees as a percentage in exchange for the successful result of the case amounts to professional misconduct. But it is to be kept in mind that these are mere guidelines. No directions are there for the same.
Law Commission of India on Advocate’s fees
Law Commission of India stated to make rules on the advocates’ fees and regulate the same. According to a report published by DAKSH, an average Indian (plaintiff) incurs an average cost of Rs. 465 per day for court proceedings. The free legal services offered under the National Legal Services Authority Act, 1987 are not availed by many. Moreover, what lawyers charge their clients for legal services is unregulated in India.
According to Supreme Court rules 2013, a lawyer should charge a maximum of Rs. 8000 per hearing. On the contrary, the Supreme Court Senior Advocates charge around Rs. 5 lakh to 25 lakh per hearing, and High Court Advocates charge around Rs. 3 lakh to Rs. 6 lakh per hearing. The legal fees vary from client to client as the advocates’ charge according to the paying capacity of their clients.
Cap on Advocates’ fees
Mixed reviews are on the point of putting a Cap on advocate fees. Senior Advocate Dushyant Dave from the
Hon’ble Supreme Court of India opined that there should be no cap on the fees charged by the Advocates as the Judges who are raising such points have themselves charged hefty fees when they were practicing.
Senior Advocate Gopal Singh Narayan opined that advocates are professionals and are not a commodity. There should be a cap on fees to be charged. A checking balance is to be maintained.
Conclusion
What a lawyer charges a client remains unregulated in India. The advocates’ fees rules are only for guidance. There is no bar to money charged by the advocates under the rules. As the public is the end receiver of the advocate’s service, their opinion also matters regarding making laws relating to advocates’ fees. Fortifying the Pro Bono Culture and making the Legal experts in India more open and achievable to the public will help with a constructive outcome on the lawful guide framework in India. The government should take necessary actions to check on the prices charged by these professionals. A complaint mechanism is needed to get information about such incidents. Strict action should be taken against individuals who are misusing their line of the profession by charging hefty amounts of money from people.
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