Himalayan Co-op. Group Housing Society vs. Balwan Singh & Ors. AIR 2015 SC 2867
One
of the most basic principles of the lawyer client relationships is that
lawyers owe fiduciary duties to their clients. As part of those duties,
lawyers assume all the traditional duties that agents owe their
principals and, thus, have to respect the clients’ autonomy to make a
decisions at a minimum, as to the objectives of the representation.
Thus, according to generally accepted notions of professional
responsibility, lawyers should follow the client’s instructions rather
than substitute their judgment for that of the client. The law is now
well settled that a lawyer must be specifically authorised to settle and
compromise a claim, that merely on the basis of his employment he has
no implied or ostensible authority to bind his client to a
compromise/settlement. A lawyer by virtue of retention, has the
authority to choose the means for achieving the client’s legal goal,
while the client has the right to decide on what the goal will be.
Despite the specific legal stream of practice, seniority at the bar or
designation of an advocate as a senior advocate, the ethical duty and
the professional standards insofar as making concessions before the
court remain the same.
Generally, admissions of a fact made by a
counsel is binding upon their principals as long as they are
unequivocal; where, however, doubt exists as to a purported admission,
the court should be wary to accept such admissions until and unless the
counsel or the advocate is authorised by his principal to make such
admissions. Furthermore, a client is not bound by a statement or
admission which he or his lawyer was not authorised to make. Lawyer
generally has no implied or apparent authority to make an admission or
statement which would directly surrender or conclude the substantial
legal rights of the client unless such an admission or statement is
clearly a proper step in accomplishing the purpose for which the lawyer
was employed. Neither the client nor the court is bound by the lawyer’s
statements or admissions as to matters of law or legal conclusions.
Thus, according to generally accepted notions of professional
responsibility, lawyers should follow the client’s instructions rather
than substitute their judgement for that of the client.
Therefore,
the Bar Council of India (BCI) Rules make it necessary that despite the
specific legal stream of practice, seniority at the Bar or designation
of an advocate as a Senior Advocate, the ethical duty and the
professional standards insofar as making concessions before the Court
remain the same. It is expected of the lawyers to obtain necessary
instructions from the clients or the authorised agent before making any
concession/statement before the Court for and on behalf of the client.
While
the BCI Rules and the Act, does not draw any exception to the necessity
of an advocate obtaining instructions before making any concession on
behalf of the client before the Court, this Court in Periyar and
Pareekanni Rubber Ltd. vs. State of Kerala (1991) 4 SCC 195 has noticed
the sui generis status and the position of responsibility enjoyed by the
Advocate General in regards to the statements made by him before the
Courts. The said observation is as under:
“19…Any concession
made by the government pleader in the trial court cannot bind the
government as it is obviously, always, unsafe to rely on the wrong or
erroneous or wanton concession made by the counsel appearing for the
State unless it is in writing on instructions from the responsible
officer. Otherwise it would place undue and needless heavy burden on the
public exchequer. But the same yardstick cannot be applied when the
Advocate General has made a statement across the bar since the Advocate
General makes the statement with all responsibility.”
The
Hon’ble Court conclude by noticing a famous statement of Lord Brougham:
“an advocate, in the discharge of his duty knows but one person in the
world and that person is his client”
