Apples Not Oranges: Here's Why Evaluating Lawyers Needs A Different Yardstick
What advocates do affects not only individuals but the entire administration of justice, the apex court says.
One just cannot drag a lawyer to the consumer court on an allegation of service deficiency. That, in one sentence, is the essence of the apex court verdict, which excludes advocates from the ambit of the Consumer Protection Act. The top court has stated that there is nothing to suggest that the legislature ever intended to bring professionals — those who possess advanced education and training in a specific field — within the scope of this act.
Having regard to the nature of a professional's work, where achieving success depends on many factors beyond a person's control, the court remarked that a professional, such as an advocate, cannot be treated equally or on par with a businessman, a trader, or a service provider of products or goods as contemplated in the Act.
"Consumer protection legislations are primarily product liability legislations, which are usually applicable to products or goods manufactured and sold," Vijayendra Pratap Singh, partner at AZB & Partners, told NDTV Profit.
Singh underscored that the reason for the difference in standards applicable to products or goods compared to a service like advocacy is that the latter, at times, is far more nuanced.
Litigation has an inbuilt matrix of the probability to win or lose it. While a manufacturer can guarantee that a shoe that he sells is 100% made out of leather, a lawyer cannot guarantee that his client would always win.Vijayendra Pratap Singh, Partner, AZB & Partners
The court has ruled that the legal profession is sui generis or unique in nature and is essentially a service oriented, noble profession.
The legal profession is different from other professions for the reason that what the advocates do affects not only an individual but the entire administration of justice, which is the foundation of a civilized society.Supreme Court of India
The legal profession is unique and cannot be compared to any commercial or business venture. An advocate, apart from owing a duty to their client, is an officer of the court and plays a seminal role in the judicial system, according to Indranil Deshmukh, partner at Cyril Amarchand Mangaldas.
However, this verdict does not mean that lawyers are completely off the hook for deficiencies in their service.
If a client feels that an advocate has not performed their end of the bargain and consequently, the client has suffered a loss, then the client can sue the advocate in a civil court. A complaint can also be filed in a civil court against an advocate for a deficiency of service, Deshmukh said.
"For lawyers, if you don't do your work properly, the judge takes you to task then and there in the court itself. This level of oversight is not present with products sold by manufacturers or in trade," Singh said.
A Contract Of Personal Service
While observing that a client exercises significant direct control over how his advocate performs his services during the course of employment, the court has held that an advocate's service would be classified as a contract "of personal service".
It is the solemn duty of an advocate not to transgress the authority conferred on him by his client and he is bound to seek appropriate instructions from his client before taking any action which may, directly or remotely, affect his client’s legal rights, the court said.
Abhijit Mittal, partner at Legal Scriptures, said that the intention of the top court was not to equate the services provided by a legal professional with employment in its technical sense. The term "during the course of his employment" should not be read literally, Mittal said.
On a holistic reading of the judgment, it is apparent that the court has not come to the conclusion that an advocate is an employee of the client.Indranil D. Deshmukh, Partner, Cyril Amarchand Mangaldas
The relationship between advocate and his client will be classified as an independent contractor arrangement subject to control parameters decided by the client. It will only be classified as an employer-employee relationship when the lawyer is an in-house counsel, Singh explained.
Are Doctors Covered By Consumer Protection Act?
In 1996, a three-judge bench of the apex court categorically ruled that medical practitioners or doctors would fall under the ambit of the Consumer Protection Act. However, it has now said that the 1996 verdict deserves a revisit in the backdrop of the history, object, purpose and the scheme of the Act.
The reason for this is simple. The court has observed that services provided by the "professionals" cannot be treated at par with the services provided by businesspersons or traders. As a necessary corollary, a revisit of the 1996 judgment has been proposed.
Deshmukh remarked that it is likely that the Supreme Court will set up a larger bench to re-examine this issue.
