The Supreme Court, in the case of Bar Of Indian Lawyers Through Its President Jasbir Sigh Malik vs. D.K.Gandhi Ps National Institute Of Communicable Diseases, ruled that an advocate’s services fall under “a contract of personal service” rather than “a contract for service”. In simpler terms, a “contract of personal service” refers to hiring an individual directly for their services, while a “contract for service” involves obtaining services from an independent provider.
This distinction means that in the former, the individual is considered an employee, whereas in the latter, they are always a third party.
Characteristics of Advocate-Client Relationship: Fiduciary Duties and Client Representation
In their judgment, Justices Bela Trivedi and Pankaj Mithal highlighted the distinct characteristics inherent in the advocate-client relationship. These include fiduciary duties owed by advocates to their clients, the requirement for advocates to act strictly upon client instructions without making concessions independently, and the representation of clients’ interests by advocates before the court.
Quoting from the judgment, they emphasized that advocates are perceived as agents of their clients and are bound by traditional agent-principal duties. This entails respecting the client’s autonomy in decision-making and seeking explicit instructions before making any concessions or statements that may impact the client’s legal rights.
Additionally, advocates are mandated to diligently adhere to the authority conferred upon them by their clients and to conduct proceedings in accordance with client instructions rather than personal judgment.
Accountability of Advocates under Consumer Protection Act: Examining Service Deficiencies
The Division Bench addressed whether advocates could be held accountable under the Consumer Protection Act for service deficiencies in an appeal case. This followed a decision by the National Consumer Disputes Redressal Commission in 2007, which stated that complaints against advocates could be entertained under the Consumer Act for deficient services.
The Court deliberated on whether advocates’ services fall under “a contract of personal service,” as defined by the Act, thus exempting them from liability.
After examining the definition of ‘Service’ under the Act, which excludes services provided under a contract of personal service, the Court made its observations.
Assessing Client Control: Impact on Advocate’s Service Classification
The Court referred to the decision in Dharangadhra Chemical Works Ltd. vs. State of Saurashtra and Others., emphasizing the importance of assessing whether the client exercises direct control over the advocate’s work.
Provisions of the Civil Procedure Code, such as Order III Rule 4, were cited to illustrate how advocates are appointed by clients through a document known as “Vakalatnama,” which outlines their duties. With clients exerting significant control over advocates’ services, the Court concluded that these services fall under “a contract of personal service” and are excluded from the definition of service under section 2(42) of the Act.
Consequently, complaints alleging deficiency in service against advocates practicing law would not be maintainable under the Consumer Protection Act, 2019.
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