Duty to the Client II: Conflict of Interest and the Duty of Confidence

"At any time" means the obligation survives the end of the engagement and the death of the client.

Rule 24: the general rule against abusing confidence

"An advocate shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client."

Rule 24 is the widest rule in Section II, and it is the one that catches conduct no numbered rule anticipated. Where a fact pattern is plainly an abuse of trust but does not fit rules 17 to 23, rule 24 is the answer, and the Preamble supports it by saying that the specific mention of these canons is not a denial of others equally imperative.

Rule 33: changing sides

"An advocate who has, at any time, advised in connection with the institution of a suit, appeal or other matter or has drawn pleadings, or acted for a party, shall not act, appear or plead for the opposite party."

Read the width of it. The bar is triggered by advising, drawing pleadings, or acting, at any time, and it stops him acting, appearing or pleading for the opposite party.

This is the rule behind the leading case. In Chandra Shekhar Soni v. Bar Council of Rajasthan, AIR 1983 SC 1012, the advocate accepted the brief of the accused after having appeared for the complainant in the same criminal case. The State Bar Council had treated that as merely unprofessional rather than as professional misconduct, and both the Bar Council of India and the Supreme Court rejected that distinction: the act was clearly contrary to rule 33, it is not in accordance with professional etiquette for an advocate retained by one party to accept the brief of the other, and it is unprofessional to represent conflicting interests except by express consent given by all concerned after a full disclosure of the facts.

The reason is confidence. Once a person has told an advocate his case, that advocate can never be safely on the other side, whatever he intends, because he cannot un-know what he was told.

Rules 18, 19 and 23: three narrower conflicts

Rule 18: "An advocate shall not, at any time, be a party to fomenting of litigation." To foment is to stir up. The rule forbids an advocate manufacturing disputes, and it connects to rule 36 and the rule against soliciting, and to the tout provisions in section 45A of the Advocates Act.

Rule 19: "An advocate shall not act on the instructions of any person other than his client or his authorised agent." Short and practical. It stops the advocate taking direction from whoever is paying, from a relative, or from a company officer who is not authorised. Where somebody else pays the fee, the client is still the client.

Rule 23: "An advocate shall not adjust fee payable to him by his client against his own personal liability to the client, which liability does not arise in the course of his employment as an advocate." So if the advocate owes the client money for something unconnected with the case, he may not set his fee off against it. The two relationships are kept apart, which protects the client from having the professional relationship used as leverage in a private dispute.

Rules 21, 22 and 22A: no interest in the subject matter

These three protect the same idea from three directions: an advocate must not acquire an interest in what the litigation is about.

Rule 21 forbids him to buy or traffic in or stipulate for or agree to receive any share or interest in any actionable claim. The rule expressly does not apply to stock, shares and debentures of government securities, to instruments negotiable by law or custom, or to a mercantile document of title to goods.

Rule 22 forbids him, directly or indirectly, in his own or any other name, for his own benefit or another's, to bid for or purchase any property sold in execution of a decree or order in any suit, appeal or other proceeding in which he was in any way professionally engaged. It does not prevent him bidding for or purchasing for his client any property the client may himself legally bid for, provided the advocate is expressly authorised in writing.

Rule 22A goes wider than execution sales: he shall not directly or indirectly bid in a court auction, or acquire by sale, gift, exchange or any other mode of transfer, in his own or any other name, for his own or another's benefit, any property which is the subject matter of any suit, appeal or other proceeding in which he is in any way professionally engaged. Rule 22A came into force with effect from 24 September 1998.

The principle behind all three is illustrated by P.D. Gupta v. Ram Murti, AIR 1998 SC 283, where an advocate purchased property from a client which was the subject matter of a dispute in which he was acting and then sold it at a profit. The Supreme Court held that an advocate must not purchase property that is the subject of litigation in which he is engaged, because it sets his own interest against his client's and against the administration of justice.

Rule 20 and the contingent fee

Rule 20 forbids an advocate to stipulate for a fee contingent on the results of litigation or agree to share the proceeds thereof. It belongs with these conflict rules because a contingent fee gives the advocate a stake in the outcome, but it is treated with the fee rules in chapter [Duty to the Client III: Fees, and What an Advocate May Not Charge].

A worked example

Sameer advises Mr Khan about a boundary dispute in January, drafts a legal notice, and is then not instructed further. In June the neighbour, Mrs Pinto, asks Sameer to appear for her in the suit that has since been filed about the same boundary.

May he? No. Rule 33 bars him: he advised in connection with the matter and drew the notice, so he shall not act, appear or plead for the opposite party. It makes no difference that he was never formally on record for Mr Khan, that months have passed, or that he believes he remembers nothing useful.

May Mr Khan consent? Chandra Shekhar Soni says it is unprofessional to represent conflicting interests except by express consent given by all concerned after a full disclosure of the facts. So consent is not impossible, but it must be express, from all concerned, and after full disclosure. In practice an advocate in Sameer's position declines.

During the suit Mrs Pinto tells Sameer she forged the survey plan. He may not disclose it: rule 17 and section 132(1) of the Bharatiya Sakshya Adhiniyam. But he may not use it either, and rule 4 of Section I requires him to restrain her and to refuse to act if she persists.

She asks him to help her prepare a fresh plan. The privilege does not attach at all. Section 132 excepts a communication made in furtherance of any illegal purpose.

The disputed strip is auctioned in execution and Sameer wants to bid. Rule 22A forbids him bidding in a court auction, or acquiring by sale, gift, exchange or any other transfer, property which is the subject matter of a proceeding in which he is professionally engaged. P.D. Gupta v. Ram Murti is the authority.

Mrs Pinto's brother, who is paying the fees, instructs Sameer to abandon a defence. Rule 19: he shall not act on the instructions of any person other than his client or her authorised agent. Paying is not instructing.

What beginners get wrong

Rule 17 does not create the privilege. It makes breach of the evidence law a professional offence. The privilege is section 132 of the Bharatiya Sakshya Adhiniyam 2023, formerly section 126 of the Evidence Act, and the rule still cites the old provision.

The privilege is the client's. The advocate cannot waive it; the client can.

Rule 33 does not need a formal engagement. Advising, or drawing pleadings, is enough.

Rule 22 has a written-authority exception, but only for buying for the client.

Rule 22A is wider than rule 22: any mode of transfer, and any property that is the subject matter of the proceeding, not only property sold in execution.

"Confidence" in rule 24 is wider than "confidential communication". It covers the whole trust reposed in the advocate.

Quick revision

• Rule 17: no breach, directly or indirectly, of the obligations imposed by what the rule calls section 126 of the Indian Evidence Act, now section 132 of the Bharatiya Sakshya Adhiniyam 2023.
• Section 132(1): no advocate is permitted at any time, unless with the client's express consent, to disclose a communication made in the course and for the purpose of his service, the contents of a document so acquainted, or advice given. Exceptions: a communication in furtherance of an illegal purpose, and a fact showing a crime or fraud committed since the service began.
• Rule 24: no abusing or taking advantage of the confidence reposed by the client. The widest rule in the Section.
• Rule 33: having advised, drawn pleadings or acted for a party at any time, he shall not act, appear or plead for the opposite party. Chandra Shekhar Soni: contrary to rule 33, and unprofessional except by express consent of all concerned after full disclosure.
• Rule 18: no fomenting of litigation. Rule 19: instructions only from the client or his authorised agent. Rule 23: no adjusting his fee against a personal liability to the client arising outside the employment.
• Rule 21: no share or interest in an actionable claim; government securities, negotiable instruments and mercantile documents of title excepted.
• Rule 22: no bidding for or purchasing property sold in execution in a matter he was engaged in; may buy for the client if expressly authorised in writing.
• Rule 22A, from 24 September 1998: no bidding in a court auction or acquiring by any mode of transfer property that is the subject matter of a proceeding he is engaged in. P.D. Gupta v. Ram Murti.

Test yourself

1. Distinguish the ethical duty of confidence from the evidentiary privilege. The ethical duty is rule 17, binds the advocate, and is enforced by a disciplinary committee under section 35. The privilege is section 132 of the Bharatiya Sakshya Adhiniyam 2023, binds the court by making the advocate not compellable, and belongs to the client, who alone can waive it.

2. Rule 17 cites section 126 of the Indian Evidence Act. Is that still the law? The obligation is, but the provision is not. The Evidence Act 1872 has been replaced by the Bharatiya Sakshya Adhiniyam 2023, and the professional communications provision is now section 132. The Bar Council rule has not been re-typeset.

3. What triggers the bar in rule 33? Having at any time advised in connection with the institution of a suit, appeal or other matter, or drawn pleadings, or acted for a party. Any of the three bars him from acting, appearing or pleading for the opposite party.

4. Can a client consent to his advocate appearing for the other side? Chandra Shekhar Soni holds that it is unprofessional to represent conflicting interests except by express consent given by all concerned after a full disclosure of the facts, so consent is not conceptually impossible but it must be express, from everybody concerned, and fully informed.

5. Distinguish rule 22 from rule 22A. Rule 22 forbids bidding for or purchasing property sold in execution of a decree or order in a matter in which the advocate was professionally engaged, with an exception for purchasing for the client under express written authority. Rule 22A is wider: it forbids bidding in a court auction or acquiring by sale, gift, exchange or any other mode of transfer any property which is the subject matter of a proceeding in which he is engaged.

6. An advocate's client tells him he intends to forge a document tomorrow. Is the communication privileged? No. Section 132 excepts a communication made in furtherance of any illegal purpose, and the exception applies whether or not the advocate's attention was directed to it. Rule 4 of Section I additionally requires him to restrain the client and to refuse to represent him if he persists.