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The Hindu : 'Advocate has no lien over case files for unpaid fees'

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Monday, August 28, 2000

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'Advocate has no lien over case files for unpaid fees'

By T. Padmanabha Rao NEW DELHI, AUG. 27. The Supreme Court has ruled for the first time that an advocate has no `lien' for his fees on the `litigation papers' and relevant documents entrusted to him by his erstwhile client. The refusal by an advocate to return the case files to the client when he demanded the same amounted to `misconduct' under Section 35 of the Advocates Act, the Bench held and said that the appellant (an advocate) in the present case is liable to punishment for such misconduct. Delivering the main judgment of the Bench, Mr. Justice K. T. Thomas altered the punishment imposed on the appellant by the Bar Council of India (BCI) to one of ``reprimanding'' him for his refusal to return the `case files' to his (advocate's) erstwhile client - a bank - after the termination of his retainership by the bank. A plea of the advocate-appellant was that he had a `lien' over the case files for his unpaid fees due to him. The bank's plea was that there was no fee payable to the appellant and the amount shown by him was on account of inflating the fees. Alternatively, the respondent - the bank - also contended that an advocate cannot retain the case files after the client terminated his engagement and that there was no lien on such files. As the State Bar Council failed to dispose of the bank's complaint against the appellant even after the expiry of one year, the proceedings stood transferred to the BCI. After holding inquiry, the Disciplinary Committee of the BCI reached the conclusion that appellant was guilty of professional misconduct. The BCI - without deciding the crucial issue, whether an advocate had a `lien' on the case papers of his erstwhile client for his unpaid fees - had chosen to
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The Hindu : 'Advocate has no lien over case files for unpaid fees'

impose punishment on the appellant debarring him from practice for a period of 18 months and a fine of Rs. 1,000. The Bench, in modifying the punishment imposed by the BCI on the appellant, made it clear that ``if any advocate commits this type of professional misconduct in future he would be liable to such quantum of punishment as the Bar Council will determine and the lesser punishment imposed now need not be counted as a precedent''. The Bench, in altering the quantum of punishment, noted that the Apex Court had not pronounced, so far, on the question whether advocate ``has a lien on the files (of his erstwhile client) for his fees'' and that the appellant would have bona fide believed, in the light of decisions of certain High Courts, that he (appellant) did have a `lien'. In these circumstances, the Bench felt that it was not necessary to inflict a harsh punishment on the appellant (a septuagenarian). A reprimand ``would be sufficient in the interest of justice on the special facts of the case,'' the Bench said. The Bench, disposing of an appeal from the advocate, cited with tacit approval an English ruling on professional `misconduct' which said, ``if it is shown that an advocate in the pursuit of his profession has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to say that he is guilty of professional misconduct.'' Mr. Justice R. P. Sethi, pronounced a separate but concurring judgment. ``No professional can be given the right to withhold the returnable records relating to the work done by him with his client's matter on the strength of any claim for unpaid remuneration,'' and that it was open for the professional concerned to resort to other legal remedies for such unpaid remuneration, the main judgment added.
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