T

A B L E

O F

O N T E N T S

Table of Cases.............................................................................................................................................2 Introduction.................................................................................................................................................3 Research Methodology...............................................................................................................................4 Issues Relating to the Termination of Vakalatnama....................................................................................6 1.1Termination of Vakalatnama..............................................................................................................6 1.1.1Lawyer as an Agent...................................................................................................................7 1.2Termination of the Lawyer-Client Relationship A US Perspective................................................8 1.2.1Termination by the Client..........................................................................................................8 1.2.2Termination by the Lawyer........................................................................................................8 1.3Special Cases.....................................................................................................................................9 1.3.1Government Pleaders.................................................................................................................9 1.3.1.1Public Prosecutors..............................................................................................................9 1.3.1.2Other Pleaders..................................................................................................................11 1.3.2If Witness.................................................................................................................................11 Conclusion................................................................................................................................................13 Bibliography..............................................................................................................................................14

A B L E

O F

A S E S

C.V. Sudhindra v. Divine Light School for Blind, AIR 2009 Kar 5 Kumari Shrilekha v. State of U.P., AIR 1991 SC 537. Mutharasu Thevar v. Mayandi Thevar, AIR 1968 Mad 333. Prince George v. Government of Kerala, MANU/KE/0173/1992. Pushpa Leela v. Government of Andhra Pradesh, MANU/AP/0621/1997. Rajendra Nagrath v. V.L. Vohra, AIR 2009 MP 131. Sadat Markhan v. Joint Civil Judge, Senior Division & Ors., MANU/MH/0716/1994. State of U.P. and Ors. v. U.P. State Law Officers Association and Ors., AIR 1994 SC 1654. State of U.P. v. Ramesh Chandra Sharma, AIR 1996 SC 864.

N T R O D U C T I O N

A vakalatnama is a document through which the party filing the suit authorizes his advocate to appear on his behalf. This document is one of the primary foundations of the lawyer and client relationship, and it bases the relationship on terms somewhat akin to that of a contract. Thus, when a client executes a vakalatnama, which authorizes the lawyer to do certain acts on his behalf, this is a unilateral contract which has been executed by the client, and the same gives authority to the lawyer to appear and represent the matter on his behalf without any specific assurance or undertaking.1 A question often arises as to what the exact nature of a lawyer-client relationship is, the relationship usually being thought of as being a purely contractual one or similar to an agency. Given this basis in contract, the lawyer-client relationship can be terminated by either party at any time. A client has the right to terminate the vakalatnama and take his case to another lawyer.2 A lawyer also has the right to seek termination of the vakalatnama, although there is a higher duty of care on him. In the course of this paper the researcher has attempted to see the way the lawyer-client relationship is conceptualized and the manner in which it can be terminated and the issues that arise in such cases. Alternate jurisdictions have also been examined, to see how the termination of the relationship is treated there, and certain special cases are also looked.

1 A John, The Way Forward on Legal Regulation, sourced from www.rainmaker.co.in. 2 C.V. Sudhindra v. Divine Light School for Blind, AIR 2009 Kar 5. 3

M
AIMS AND OBJECTIVES

E S E A R C H

E T H O D O L O G Y

The aim of this paper is to look at the issues that arise when looking at the termination of vakalatnama, and consequent termination of relationship between a lawyer and client. SCOPE AND LIMITATIONS Scope: The scope of this paper is limited to studying issues relating to the termination of vakalatnama and determination of relationship between a lawyer and client, and to seeing how the relationship may be conceptualized. Limitations: As this paper does not go in depth in the various aspects that have been covered, finer points of debate may not have been fully tackled. RESEARCH QUESTIONS

What is the nature of the relationship between a lawyer and client? What issues arise when looking at the termination of Vakalatnama? How have other jurisdictions conceptualized this relationship? Are there any special cases where the lawyer-client relationship is conceptualized differently?

STYLE OF WRITING The researcher has adopted a primarily analytical style of writing with descriptive inputs where required. MODE OF CITATION A uniform mode of citation has been adopted throughout this paper. SOURCES OF DATA The researcher has relied upon primary sources of data, in the form of original judgments read by him, as well as secondary sources in the form of commentaries by jurists.

CHAPTERIZATION This paper has not been divided into chapters but rather has been written in the form of an article, with different sections dealing with different aspects of the topic. The first section looks at how the relationship between a lawyer and client can be terminated. The next section looks at how this relationship is dealt with in an alternate jurisdiction. i.e. America. The final section looks at certain special cases wherein the termination of the relationship may be handled differently.

S S U E S

T H E

E L A T I N G

T O O F

E R M I N A T I O N

A K A L A T N A M A

1.1 Termination of Vakalatnama

A question often arises as to what the exact nature of the relationship between a client and his lawyer is, and how the same can be terminated. It is felt that the relationship is, in essence, a commercial one. A lawyer renders a particular service in return for the payment of money and it is a purely commercial transaction, and not a relationship which is in the nature of a personal service.3 Hence, when a client executes a vakalatnama, which authorizes the lawyer to do certain acts on his behalf, this is a unilateral contract which has been executed by the client, and the same gives authority to the lawyer to appear and represent the matter on his behalf without any specific assurance or undertaking.4 The Courts have had instance to state that the usual principle is that a client can terminate his lawyer at any point and the Courts will not interfere, for it is not up to the Court to decide upon the choice of the client to engage a lawyer for its work and a client has the freedom to choose and to replace his lawyer.5 This question was also taken up for consideration by the Courts, and in the case of C.V. Sudhindra v. Divine Light School for Blind6 the court held that a vakalath is in the nature of a quasi-contract which can be terminated at will by the client. The case arose out of a memo being filed by the defendants seeking permission to withdraw the vakalath and engage different advocates, on account of their having lost faith in their advocates. The petitioners then filed an objection to the memo but also filed an application in which they sought to have the prayer of the defendants rejected. The applications filed by the petitioners were dismissed by the trial court and against that a writ petition was preferred. The petitioners filed the writ in which they questioned the right of an advocate to continue in a case, and whether the Trial Court was justified in dismissing an application wherein the petitioners were seeking their right to continue to remain on record.7

3 4 5 6 7

A John, The Way Forward on Legal Regulation, sourced from www.rainmaker.co.in. A John, The Way Forward on Legal Regulation, sourced from www.rainmaker.co.in. Pushpa Leela v. Government of Andhra Pradesh, MANU/AP/0621/1997. AIR 2009 Kar 5. C.V. Sudhindra v. Divine Light School for Blind, AIR 2009 Kar 5. 6

It was the contention of the petitioners that the contract of engagement of the Advocates was not on the usual terms but the vakalath was of a nature wherein the Advocate had an interest in the work that was being carried out by the defendants, and had undertaken work without charging any professional fee. Thus they argued that the vakalth could not be terminated and as the defendants were engaged in illegal activities, the petitioners were required to stay on record in order the protect the interests of the blind children.8 The court was of the opinion that the contract of vakalathnama can be withdrawn by the client at any point of time. Since the relationship is in the nature of a unilateral contract, and there is no concept of an irrevocable vakalathnama.9

1.1.1 Lawyer as an Agent

It is sometimes opined that the relationship of a lawyer and his client is akin to that of a principal and agent and the vakalatnama is a kind of power of attorney. Thus, the lawyer-client relationship is based, not in pure contract law, but more in the principles of agency law as they have been translated into the codes of professional conduct. Thus, the relationship is of a quasi-contractual nature and is, in itself ethically significant.10 The relationship still remains one which can be terminated at will.11 In the case of Mutharasu Thevar v. Mayandi Thevar12 the court held that even if the client-lawyer relationship is posited as being akin to one between a principal and an agent, an agent is merely a means to an end. An agent can never have complete authority to dictate as to who should conduct the litigation of his principal, and to allow the same would be a serious inroad on the liberty of a person.13 Thus, the court was of the view that if a principal were to be constrained to continue his litigation through a counsel not of his choice, not of his liking, it would tantamount to stifling the prosecution of a lawful suit and certainly therefore it will be against public policy. Thus, the court held that a client always has the right to revoke a vakalat which has been given by him, or in his name.14

8 C.V. Sudhindra v. Divine Light School for Blind, AIR 2009 Kar 5. 9 C.V. Sudhindra v. Divine Light School for Blind, AIR 2009 Kar 5. 10 N Webb et al, Professional Legal Ethics: Critical Interrogations (Oxford: Oxford University Press, 1999) at 130. 11 A John, The Way Forward on Legal Regulation, sourced from www.rainmaker.co.in. 12 AIR 1968 Mad 333. 13 Mutharasu Thevar v. Mayandi Thevar, AIR 1968 Mad 333. 14 Mutharasu Thevar v. Mayandi Thevar, AIR 1968 Mad 333. 7

1.2 Termination of the Lawyer-Client Relationship A US Perspective

1.2.1 Termination by the Client
Having seen the view the Indian courts have taken of the relationship between a lawyer and client, it may be instructive to see how this relationship is conceptualized in a different jurisdiction. In the United States, in Virginia, a client is given the right to discharge his lawyer at any point of time, and the termination can be at will, without there being a necessity to give any cause, and also without the the engagement agreement requiring such a condition to be present. The relationship also ends when the client dies or when a corporate client no longer functions as a corporation.15 The only condition upon the clients right to discharge is if the client matter is in court and the tribunal refuses to enter an order terminating representation or substituting new counsel.16 Thus, the rights of a client to terminate the relationship are broad, and he can bring the relationship to an end at will.

1.2.2 Termination by the Lawyer

The rights of a lawyer to bring the lawyer-client relationship to an end are slightly different and there is a more onerous burden on the lawyer. In Virginia, a lawyer may withdraw from representing his client so long as the same can be accomplished without there being any material adverse impact on the clients interests. A lawyer also needs to provide grounds before terminating the relationship and grounds that may be given to terminate the relationship, by the lawyer, include persistent and continued criminal and fraudulent activity on the part of the client; using the lawyers services to perpetuate a crime or some fraud; actions of the client being such that the advocate considers them to be repugnant and imprudent; clients failure to fulfill a substantial financial or other obligation that the attorney has previously warned the client could lead to attorney withdrawal; or an irreparable breakdown of the attorneyclient relationship due to the clients difficult behavior.17 It needs to be noted that these grounds are not exhaustive, and there may be other cogent reasons which can be supplied to terminate the relationship by a lawyer.
15 J Brandt, Ending the Attorney-Client Relationship, sourced from www.vsb.org/docs/valawyermagazine/vl1008_risk.pdf. 16 J Brandt, Ending the Attorney-Client Relationship, sourced from www.vsb.org/docs/valawyermagazine/vl1008_risk.pdf. 17 J Brandt, Ending the Attorney-Client Relationship, sourced from www.vsb.org/docs/valawyermagazine/vl1008_risk.pdf. 8

In cases where the matter being handled is already in suit, there the attorney must seek the entry of an order which permits his withdrawal or substitution of other counsel. Before withdrawing from the case, the attorney needs to have a witnessed personal conference with the client during which the attorney clearly communicates the basis for the withdrawal. An attorney has an obligation when he terminates the relationship to allow reasonable time to secure other counsel, to return all of the clients papers and property, and to refund all fees and costs not earned by the attorney.18 In the State of Maryland, there are similar obligations imposed upon an attorney. His withdrawal from a suit, while it can be voluntarily can only be made if it would not materially harm the client. Such withdrawals are easier to obtain in a civil representation as opposed to a criminal one. The relationship may also come to an end when it is in violation of another rule, or where the the physical or mental state of the lawyer is such that it impairs his ability to represent his client.19 A lawyer also needs the permission of the court before he would be allowed to voluntarily terminate his brief. Permission may be granted where the client asks his lawyer to pursue a morally repugnant activity; or if a client is seeking to use the lawyers services to commit a potential crime or fraud; or if the client fails to pay and is given notice that failure to pay will result in withdrawal. The Trial Court is given discretion as to whether permission for withdrawal may be given, and the same usually stands unless the trial court is found to have made a mistake in law.20

1.3 Special Cases

1.3.1 Government Pleaders

Having seen the normal rules relating to the termination of the relationship between a lawyer and his client, it is also instructive to see some special cases of a lawyer-client relationship where the rules of termination are slightly different.

1.3.1.1 Public Prosecutors The relationship between a public prosecutor and the government is conceptualized differently, and here termination cannot be at will. This, is because the Courts believe that in such cases the relationship is not merely a contractual one, but there is a public policy aspect as well. Thus in the
18 J Brandt, Ending the Attorney-Client Relationship, sourced from www.vsb.org/docs/valawyermagazine/vl1008_risk.pdf. 19 Client-Lawyer Relationship, sourced from www.law.umaryland.edu/.../life/.../Legal_Profession_Unknown1.doc. 20 Client-Lawyer Relationship, sourced from www.law.umaryland.edu/.../life/.../Legal_Profession_Unknown1.doc. 9

case of Kumari Shrilekha v. State of U.P.21 where the Government of UP had terminated, by order, the appointment of all Government Counsel (Civil, Criminal, Revenue) in all the districts of the State of U.P., the dismissed advocates filed a petition against this order. It was the contention of the State that the relationship of the appointees was a purely contractual one, and it depended on the terms of the contract. The State argued that the relationship was of the same nature as that of engagement of a counsel by a private party who can be changed at any time at the will of the litigant, with there being no right in the Counsel to insist on continuance of the engagement. Thus, the State believed that the relationship could not be continued against the will of either party, and it could not be said that the State does not have the right to change the Government Counsel at will.22 On the side of the petitioners it was contended that the relationship of the Government Counsel with the Government is not merely one of client and counsel as in the case of a private client, but the relationship was in the nature of public employment and so the termination of the appointment could not be equated with the termination by a private litigant of his Counsel's engagement, which is purely contractual, without any public element attaching to it.23 The Court held that the appointment of a government pleader was not one which was at the sweet will of the Government , hence it could not be terminated at any time, even without the existence of any cogent reason during the subsistence of the term. Thus, such engagements are not merely professional engagements like those between a private client and his lawyer, or purely contractual with no public element attaching to it.24 Thus, in a case where the services of an Additional Government Pleader were terminated before the expiry of term, under the Rules of appointment,25 the court held that notwithstanding such a rule, as the relationship was of a public nature it could not be terminated at will.26 Similarly, in the case of Pushpa Leela v. Government of Andhra Pradesh27 it was held that while a Government Pleader or Assistant Government Pleader is not appointed under any statute, but is merely contracted to work in cases which are instituted by or against the Government of the State, thus the termination of a pleader would not attract the principles of law as applied to other employees of the State. And also while it is
21 22 23 24 25 AIR 1991 SC 537. Kumari Shrilekha v. State of U.P., AIR 1991 SC 537. Kumari Shrilekha v. State of U.P., AIR 1991 SC 537. Kumari Shrilekha v. State of U.P., AIR 1991 SC 537. Rule 17 providing that notwithstanding anything contained in the Rules, the Government may terminate the appointment of any Government Law Officer, other than a Special Government Pleader or Special Public Prosecutor, at any time before the expiry of the term of his appointment without assigning any reasons therefor: Provided that such termination shall not be effected unless one month's notice in writing has been given to him. 26 Prince George v. Government of Kerala, MANU/KE/0173/1992. 27 MANU/AP/0621/1997. 10

the usual principle for the Courts to not ordinarily interfere with the termination of appointment of a lawyer, however in the case of a Government Pleader the rule is different and termination cannot be at will without any cause whatsoever.28

1.3.1.2 Other Pleaders This principle of Government Pleaders being engaged in public work and hence not terminable at will has been restricted in scope and is only applicable to public prosecutors. This has come about as a result of the Apex Courts decision in the case of State of U.P. and Ors. v. U.P. State Law Officers Association and Ors.29, wherein the Supreme Court distinguished the in the Shrilekha Vidyarthi case. The Court held that the latter decision was only confined to the appointment of Public Prosecutors in the District Courts, and further held that the appointment of a legal practitioner is only a professional engagement which is terminable at the will of either side and is not an appointment to the post under the Government. Thus, the Court held that the Government reserves the power to terminate the appointment of any Government Counsel. The Court further observed that the services of a lawyer are purely on a contractual basis, and Government Lawyers cannot be treated as employees but they are professional practitioner engaged to do specified work. The client engages a Lawyer for personal reasons and is at liberty to leave him also for the same reasons. He is under no obligation to give reasons for withdrawing his brief from his Lawyers.30 The same was reiterated by the Court in the case of State of U.P. v. Ramesh Chandra Sharma31 where the Court held that a Government Advocate was employed purely as a professional engagement and the Lawyer, holding such a post, could not claim to hold a civil post under the State or claim renewal of his term as a matter of right.

1.3.2 If Witness
In certain cases it becomes mandatory for the lawyer to terminate his relationship with the client, and the Courts can step in to bring the relationship to an end. One such instance is under the Bar Council Rules, where the advocate is required to be a witness in a case. Thus, in the case of Rajendra Nagrath v. V.L. Vohra,32 where the Advocate had been cited as a witness in a case relating to the division of Joint Hindu Family Property, the petitioners filed to have the advocate removed from the case, as they
28 29 30 31 32 Pushpa Leela v. Government of Andhra Pradesh, MANU/AP/0621/1997. AIR 1994 SC 1654. State of U.P. and Ors. v. U.P. State Law Officers Association and Ors., AIR 1994 SC 1654. AIR 1996 SC 864. AIR 2009 MP 131. 11

argued that he should not be permitted to continue the case as Counsel on behalf of plaintiff. Under Rule 13, framed by the Bar Council of India, regarding professional ethics, contained in Part-IV Chapter-I, framed under the Advocates Act, if an Advocate is a witness on a material question of fact, he should not continue to appear as an Advocate. And where he has reason to believe that he will be a witness and if being engaged in a case, it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an Advocate if he can retire without jeopardizing his client's interests.33 The court had a similar view and held that given the facts of the case it would not be proper for the Advocate to continue, for it is not proper for a lawyer to appear for a party in Court knowing that he was likely to be called as a witness in relation to a material fact.34 A question also arises as to whether the termination of the relationship is one which is left to the discretion of the lawyer or if it can be terminated by the Court also. This question arose before the Court in the case of Sadat Markhan v. Joint Civil Judge, Senior Division & Ors.35 The petitioner in this case relied on Rule 13 and submitted that the Advocate has a discretion as to whether to give up the case or stay on as Counsel. It was the contention of the advocate that he has a discretion and the same has to be exercised without jeopardizing the interests of the client, and therefore the Trial Court cannot determine the Vakalatnama of an advocate without ascertaining his will. The Court however was of the view that the Trial Court does have the power to determine the appointment of an advocate, and per Rule 13 it is not entirely the discretion of the Lawyer. Thus, where a lawyer is a witness in regard to a material fact and still persists in retaining both the capacities, that of a witness as well as counsel, the Court can step in and remedy the situation by determining the Vakalatnama.36 ____________________

33 34 35 36

Rajendra Nagrath v. V.L. Vohra, AIR 2009 MP 131. Rajendra Nagrath v. V.L. Vohra, AIR 2009 MP 131. MANU/MH/0716/1994. Sadat Markhan v. Joint Civil Judge, Senior Division & Ors., MANU/MH/0716/1994. 12

O N C L U S I O N

Coming to the end of this paper we see that the relationship between a client and lawyer is established through a vakalatnama which authorizes the lawyer to act on behalf of the client. The vakalatnama establishes a quasi-contractual relationship between the parties. A vakalatnama can be terminated by the client at will, and he cannot be forced to continue with an advocate against his will. There being no such thing as an irrevocable vakalatnama. A lawyer may also terminate the relationship, although there is a greater burden on him and the relationship cannot be brought to an end to the detriment of the client. The lawyer-client relationship is conceptualized in a similar manner in different jurisdictions as well, with the client having autonomy to bring an end to the relationship. The burden on the lawyer again being greater. There are certain special cases where a lawyer cannot be terminated at will, and this arises in the case of Public Prosecutors, for they are thought of as being public servants and not merely professionally engaged. This is however an exception. A vakalatnama can also be terminated by the courts, if they feel it is necessary. Such as in cases where the lawyer is also a witness to a material fact in a case.

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B
BOOKS

I B L I O G R A P H Y

N Webb et al, Professional Legal Ethics: Critical Interrogations (Oxford: Oxford University Press, 1999). P Aiyer, Legal & Professional Ethics (3rd edn., Nagpur: Wadhwa & Co., 2003). P Pant, Sanjiva Rows The Advocates Act, 1961 (6th edn., Allahabad: The Law Book Company, 1997).

ARTICLES

Client-Lawyer

Relationship,

sourced

from

www.law.umaryland.edu/.../life/.../Legal_Profession_Unknown1.doc.

A John, The Way Forward on Legal Regulation, sourced from www.rainmaker.co.in. J Brandt, Ending the Attorney-Client Relationship, sourced from www.vsb.org/docs/valawyermagazine/vl1008_risk.pdf.

14