Duty to the Client I: Accepting a Brief, Refusing One, and Withdrawing

Why the principle exists. Because a person nobody will represent cannot be tried fairly. If advocates could pick clients, the least popular defendant, who most needs representation, would get none. The principle protects the system rather than the advocate.

Rule 12: withdrawal

"An advocate shall not ordinarily withdraw from engagements, once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client. Upon his withdrawal from a case, he shall refund such part of the fee as has not been earned."

Three conditions and a consequence, and all four are examinable.

• "Ordinarily", so withdrawal is the exception.
• "Sufficient cause." A reason, and one a disciplinary committee would accept. Non-payment of fees may be sufficient cause; a better brief elsewhere is not.
• "Reasonable and sufficient notice." Time enough for the client to instruct somebody else. Withdrawing on the morning of a hearing is not notice.
• "Refund such part of the fee as has not been earned." Mandatory, not discretionary.

Rule 12 is also what makes a strike a professional problem. In Ex-Capt. Harish Uppal v. Union of India, AIR 2003 SC 739, the Supreme Court held that lawyers holding vakalatnamas cannot fail to attend court in pursuance of a call for strike or boycott. An advocate who stays away has, in substance, withdrawn without cause or notice.

Rule 13: the advocate as a witness

"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 jeopardising his client's interests."

Two limbs, and note that they are worded differently.

Before accepting: he should not accept where he has reason to believe he will be a witness. That is straightforward.

After accepting: the test is narrower and is qualified twice. It applies where he is a witness on a material question of fact, and he should retire only if he can do so without jeopardising his client's interests.

The reason for the second qualification is practical. A client whose advocate withdraws in the middle of a trial may be left without representation at the worst moment, and the rule prefers the client's interest to the tidiness of the position. The vice the rule addresses is that a person cannot both give evidence and test evidence: the advocate would be asking the court to believe him while arguing about his own credibility.

Rule 14: full and frank disclosure

"An advocate shall at the commencement of his engagement and during the continuance thereof, make all such full and frank disclosure to his client relating to his connection with the parties and any interest in or about the controversy as are likely to affect his client's judgement in either engaging him or continuing the engagement."

Three points.

The duty is continuing, not a formality at the outset. It applies "at the commencement... and during the continuance".

The test is the client's judgement, not the advocate's assessment of whether the connection matters. If the fact is likely to affect the client's decision to engage or continue, it must be disclosed.

The remedy is disclosure, not necessarily refusal. Rule 14 lets the client decide with full information. Contrast rule 6, which is an absolute bar and admits of no consent.

Rule 15: fearless defence

"It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means without regard to any unpleasant consequences to himself or any other. He shall defend a person accused of a crime regardless of his personal opinion as to the guilt of the accused, bearing in mind that his loyalty is to the law which requires that no man should be convicted without adequate evidence."

This is the rule that answers the question every law student is asked at a family gathering: how can you defend somebody you think is guilty.

The rule gives the answer. "His loyalty is to the law which requires that no man should be convicted without adequate evidence." The advocate is not asserting the client's innocence. He is testing whether the State has proved its case, which is a different thing, and which somebody must do if the guarantee means anything.

Note the two limits inside the rule. "By all fair and honourable means." Fearlessness does not license fabricating evidence or misleading the court, and rule 4 of Section I says the same. "Without regard to any unpleasant consequences to himself." This is the courage of chapter [The Seven Lamps of Advocacy] in a rule.

Rule 16: the prosecutor's separate duty

"An advocate appearing for the prosecution of a criminal trial shall so conduct the prosecution that it does not lead to conviction of the innocent. The suppression of material capable of establishing the innocence of the accused shall be scrupulously avoided."

Rule 16 is the most important rule in Section II for understanding what this whole subject is about, because it is the one place where the rules say plainly that an advocate's job is not to win.

A public prosecutor does not represent a client with an interest in conviction. He represents the State, whose interest is that the guilty are convicted and the innocent are not. So the rule imposes two duties: to conduct the prosecution so that it does not lead to the conviction of the innocent, and scrupulously to avoid suppressing material capable of establishing innocence.

That second duty is an obligation to disclose material that damages his own case, and no other advocate in the system has it.

Distinctions

A worked example

Rohit practises in the Sessions Court at Mumbai. Five things happen in one week.

A man accused of a violent offence, whom the newspapers have already convicted, asks Rohit to defend him at Rohit's usual fee. Rule 11 binds him to accept. Unpopularity is not a special circumstance, and rule 15 requires him to defend regardless of his personal opinion as to guilt.

Rohit realises he witnessed part of the incident from a shop across the road. Rule 13, first limb: he has reason to believe he will be a witness, so he should not accept the brief. This is a genuine special circumstance under rule 11.

In a different matter, Rohit's brother is a partner of the opposing party's firm. Rule 14 requires full and frank disclosure to his client at the commencement and during the engagement, because that connection is likely to affect the client's judgement about engaging him. Disclosure, not automatic refusal: the client may still choose him.

Three weeks into that matter the client stops paying and abuses Rohit's clerk. He may withdraw under rule 12 if that is sufficient cause, but only on reasonable and sufficient notice, and he must refund the part of the fee not earned.

Rohit is also a Special Public Prosecutor in a third matter, and the investigating officer hands him a statement that supports the accused's alibi. Rule 16 requires him scrupulously to avoid suppressing material capable of establishing the innocence of the accused. He must bring it out, even though it damages the prosecution.

Change one fact. Suppose in the first matter the Bar Association resolves that no member shall appear for that accused. Rohit is still bound by rule 11, and Harish Uppal holds that lawyers must boldly refuse to abide by a call for boycott and that no adverse consequence, threat or coercion, including expulsion, may be visited on a lawyer who refuses.

What beginners get wrong

Rule 11 is not absolute, but the exception is narrow and does not include dislike of the client or the case.

A high fee is not an escape from rule 11. The fee must be consistent with the advocate's standing and the nature of the case.

Rule 12 is not satisfied by cause alone. Notice and the refund of the unearned fee are separate requirements.

Rule 13's second limb is qualified. After accepting, he retires only if he can do so without jeopardising the client.

Rule 14 requires disclosure, not withdrawal. It is rule 6 that is an absolute bar.

Rule 16 applies to the prosecutor only, and it is the one rule that requires an advocate to produce material against his own case.

Quick revision

• Rule 11, the cab-rank principle: bound to accept any brief in courts where he proposes to practise, at a fee consistent with his standing and the nature of the case; special circumstances may justify refusal.
• Rule 12, withdrawal: not ordinarily, needs sufficient cause, reasonable and sufficient notice, and a refund of the unearned fee.
• Rule 13, witness: should not accept where he has reason to believe he will be a witness; after accepting, retires only if he is a witness on a material question of fact and can retire without jeopardising his client's interests.
• Rule 14, disclosure: full and frank, at the commencement and during the engagement, of any connection or interest likely to affect the client's judgement.
• Rule 15, fearless defence: uphold the client's interests by all fair and honourable means, defend an accused regardless of personal opinion as to guilt, because loyalty is to the law which requires that no man be convicted without adequate evidence.
• Rule 16, the prosecutor: conduct the prosecution so that it does not lead to conviction of the innocent, and scrupulously avoid suppressing material capable of establishing innocence.

Test yourself

1. State the cab-rank principle and its exception. Rule 11: an advocate is bound to accept any brief in the courts or tribunals before which he proposes to practise, at a fee consistent with his standing at the Bar and the nature of the case. Special circumstances may justify his refusal of a particular brief.

2. Give two matters that would be special circumstances and two that would not. Would be: that he has reason to believe he will be a witness, or that he has already acted for the other side in the matter. Would not be: that the client is unpopular, or that the advocate believes the client is guilty, which rule 15 expressly makes irrelevant.

3. What three things must an advocate do before withdrawing from a case? Have sufficient cause, give reasonable and sufficient notice to the client, and on withdrawal refund such part of the fee as has not been earned.

4. An advocate discovers mid-trial that he is a witness on a material question of fact. What does rule 13 require? That he should not continue to appear as an advocate, but only if he can retire without jeopardising his client's interests. The qualification exists because a client left without representation in the middle of a trial may be worse off than one whose advocate is also a witness.

5. How does rule 15 answer the question of defending a person the advocate believes is guilty? It requires him to defend regardless of his personal opinion as to guilt, on the footing that his loyalty is to the law, which requires that no man should be convicted without adequate evidence. He tests the prosecution's proof rather than asserting innocence, and he must do so by all fair and honourable means.

6. What duty does rule 16 place on a prosecutor that no other advocate has? To conduct the prosecution so that it does not lead to the conviction of the innocent, and scrupulously to avoid suppressing material capable of establishing the innocence of the accused, which means producing material that damages his own case.