A lawyer cannot act in dual capacity of being that of a constituted attorney of the party as well as an advocate in the same matter.
In a recent case, Delhi high court held that a person who verified the plaint and all other pleadings on behalf of the Plaintiff, is not permissible to be also appearing as the counsel for the Plaintiff. Court further clarified that, the practice of advocates acting as power of attorney holders of their clients, as also as advocates in the matter is contrary to the provisions of the Advocates Act, 1961. Any advocate who is engaged by a client would have to play only one role, i.e., that of the advocate in the proceedings and cannot act as a power of attorney holder and verify pleadings and file applications or any other documents or give evidence on behalf of his client.[1]
Provisions in CrPC
Order 3, rule 1 of the Code of Civil Procedure reads thus:
“Any appearance, application or act in or to any court, required or authorised by law to be made or done by a party in such court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent or by a pleader appearing, applying or action, as the case may be, on his behalf.”
Order 6 Rule 14 mandates that every pleading shall be signed by the party and its pleader.
It is well settled law that the constituted attorney of a suitor has no right of audience in Court or to cross-examine witnesses. The Constituted Attorney is merely entitled to ‘act’ and ‘appear’ for a party but has no right to ‘plead’ in a Court. The expressions ‘act’ and ‘appear’ do not mean ‘right to plead’ as such[2]
Constituted Attorney
It is permissible for an Advocate to act as a ‘recognised agent’ or a Constituted Attorney by virtue of Power of Attorney executed in his favour by a suitor and sign vakalatnama pleadings and affidavits on behalf of the donor of Power of Attorney to the extent provided in the Code of Civil Procedure as aforesaid.
In all such cases the signature of Constituted Attorney on pleadings, affidavits, vakalatnama and other documents is liable to be equated to signature of a party itself for all practical purposes. It follows that in all such cases the plaintiff or the defendant is deemed to have signed the pleading by the hand of his Constituted Attorney. The pleadings are required to be verified and declared by the signatory thereof with reference to personal knowledge of the averments made therein or on basis of information and belief.
Constituted Attorney as well as the role of Advocate
The question to be asked is as to whether an advocate who acts as Constituted Attorney of a suitor in pursuance of power of attorney from his client is entitled to combine his role of a constituted attorney with that of an advocate in the same cause simultaneously.
Members of the Bar are governed by the provisions contained in the Advocates Act 1961, well known principles and doctrines recognised for generations and are rightly described as partner in Administration of justice. Advocates in their professional capacity are enjoined to act with complete impartiality and detachment and not entitled to identify themselves with the clients or the cause personally.
For all practical purposes, the recognised agent of a suitor is on par with the suitor or client himself; an Advocate is not, as an Advocate is an independent person with a specific role in administration of justice. In certain situations advocates are permitted to accept power of attorneys from a client for purpose of acting in a suit or matter, sign pleadings, vakalatnama and affidavits on behalf of plaintiff or defendant as case may be. An Advocate may be appointed as a Receiver in a suit or a cause. No one can object to the Advocate accepting these assignments permissible under the law.
The question as to whether the advocate who is holding a power of attorney from a client to act and appear in a suit or matter can also act in the professional capacity in the same proceedings at the same time. The answer to this question is too obvious and has to be in negative.
Detachment and impartiality expected of an Advocate is likely to be jeopardised when an Advocate acts in both the capacities. The risk in allowing combination of two roles is far too serious.
Law prohibits such combination and rightly so. It is unfortunate that a totally wrong practice has grown up in our Court where one or the other partner of a solicitors’ firm signs pleadings and affidavits on behalf of a foreign client in pursuance of authorisation contained in the power of attorney and the same firm of Advocate/Solicitors acts, appears and pleads in a professional capacity. The said practice is not sanctioned by law. Such a practice is opposed to law.
A constituted attorney is entitled to identify himself with the interest of his client and give instruction to the Advocate representing the client before the Court. It would be strange if the lawyer constituted attorney gives necessary instruction in the matter to himself or his co-partners.
It makes no difference that the power of attorney is executed in favour of one or other partner of the firm of the Advocate and the litigation is in fact conducted by another partner of the advocate’s firm. If the vakalatnama is executed by a client in favour of firm of advocates it follows that all the partners of the said firm are engaged as Advocates by the client concerned. It makes no difference to the situation that the vakalatnama is accepted in writing only by one of partners of the firm. All the partners need not place their signatures on the vakalatnama. Each and every partner of Advocates’ firm is enjoined to act in such cases in professional capacity or no other capacity. No conflicting role can be assumed by one or other partners of the same firm in respect of the same cause or the matter.
Rule of professional ethics framed by the Bar Council clearly provide in terms that no one can accept a brief or appear as an advocate if he is likely to be a witness in the case. Affidavits may be filed under Order XIX Rule 2 of the Code of Civil Procedure. On several occasions Affidavits are filed, by the constituted attorney of the suitor. Pleadings can be signed and verified by a Constituted Attorney. Once the constituted attorney of a suitor files an affidavit, he can be summoned by the Court at the instance of other side or suo motu for cross-examination.
The very possibility of the advocate holding power of Attorney being summoned as a witness in such cases is sufficient to infer implied prohibition on combination of two capacities.
Amounting Misconduct
In the wake of globalization and increasing international trade, India has become one of the biggest commercial hubs which has consequently led to a spurt in the volume of litigation in the country, making the Indian legal fraternity a much sought after lot. It is undoubtedly a golden period for the lawyers and law firms in India which are being engaged by the foreign companies and multinationals, but at the same time it has but brought an insalubrious trend, that of the lawyers wearing two hats; of an attorney and of a client at the same time.
The Advocates Act, 1961 and The Bar Council of India Rules prescribe rules for professional conduct and ethics for lawyers. Rule 13 of the Bar council of India states that:
“13. An Advocate should not accept a brief or appear in a case in which 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 interest.”
Thus as is manifest from the said rule, it would be a professional misconduct if a lawyer were to don two hats at the same time.
The rules of conduct as per the Bar Council of India Rules may act as a guardian angel for ensuring the moral conduct of the lawyers but the legacy of the traditions of the Bar cannot be bedaubed by a few for the lucre of commercial gains. A lawyer cannot forget that this is called a noble profession not only because by virtue of this he enjoys an aristocratic position in the society but also because it obligates him to be worthy of the confidence of the community in him as a vehicle of achieving justice.
The rules of conduct of this profession with its ever expanding horizons are although governed by the Bar Council of India Rules but more by the rich traditions of the Bar and by the cannons of conscience of the members of the calling of justice of being the Samaritans of the society.
Law is not a trade and briefs no merchandise and so the avarice of commercial gains should not malign this profession. Hence there can be no divergent view on the legal proposition that an Advocate cannot act in the dual capacity, that of a constituted attorney and an advocate.
Conclusion: Final Analysis
(a) An Advocate is not entitled to act in a professional capacity as well as constituted attorney of a party in the same matter or cause. An Advocate cannot combine the two roles. If a firm of Advocates is appointed as Advocates by a Suitor, none of partners of the Advocates’ firm can act as recognised agent in pursuance of a power of attorney concerning the same cause.
(b) The existing practice followed by the firm of advocates/solicitors/attorneys particularly in case of non-resident clients combining the two roles is opposed to law and is required to be discontinued forthwith.
(c) The Prothonotary and Senior Master, High Court shall not accept any vakalatnama in favour of a firm of advocates where one or the other partner of the same firm also holds a power of attorney from the plaintiff or the defendant or any other suitor before the Court in the same cause.
Reference
- Anil Kumar And Anr vs Amit on 17 November, 2021
- Baker Oil Tools (India) Pvt. Ltd. & Ors. v. Baker Hughes Ltd. & Ors., 2011 (47) PTC 296 (Del)
- A.S. Patel v. National Rayond Corporation Limited, AIR 1955 Bom 262
- Janki Vashdeo Bhojwani and Anr. Vs. Indusind Bank Ltd. and Ors. AIR 2005 SC 439
[1] Anil Kumar And Anr vs Amit on 17 November, 2021
[2] A.S. Patel v. National Rayond Corporation Limited, : AIR1955Bom262