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Very good guidance for those advocates who are unprofessional.
Dear Mr Babu,
Brgds/ G S Chadha.
Hello Mr. Suresh
i am Sathish advocate from pondy. i have read 3 of your articles in Lawyersclub india.com.
I am surprised that all three of them are sceptical about lawyers and i hope its a mere coincidence. ofcourse, there is a lot of truth in your observation regarding the growing deterioration of profession, but the entire fraternity cannot be painted with same brush.
coming to your latest article on flawed legal opinion, i wish to disagree with your perception of supreme court judgment in Central Bureau of Investigation, Hyderabad vs. K. Narayana Rao (2012 (6) CTC 569) terming it as falliable
i think it is a landmark judgment, which only confirms the legal position involving a professional opinion. Contrary to your observation, it does not immunises an advocate from any liability for his flawed opinion. It only frees him from criminal prosecution and that too only in cases when there is no mens rea in giving the opinion. An advocate's tortous liablity under civil laws are untouched by the said judgment. Similar are the views of Supreme court with regard to plethora of medical negligence cases, where though doctors are said to be exempt from criminal prosecution, their liability under civil laws are still open.
therefore your apprehensions are unfounded. If for flawed opinions the advocates are to be prosecuted, why should a judicial officer, discharging public duty, committing such flaws in judgment, which gets reversed in appellate forums be exempt from any actions. Law is an ever evolving subject and never can 2+2 is always 4. Therefore, every professional carries his own opinion on a subject and thats what makes this profession vibrant. If a professional is to be criminally prosecuted for carrying an opinion,which is not commonly acceptable, then the law can never grow. Opinions for a similar set of situation can differ based on peculiar circumstances of each case.
Therefore as advocates, we must hail this judgment.
However, i appreciate your efforts and regards
many a times the seeker of the legal opinion is a bank or a financial institution. They always come to the advocates in a hurry and seeking legal opinion within 2 or 3 days as they have to diburse the loans to meet the target. under such circumstances advocates are put under pressure to submit the report fast.resultantly some of the aspects remain to be seen. Advocates should not yield the pressure tactics of such persons and tell them clearly at the beginning itself that it will take time.That way they can at least ward off the pressure.
Mr K. Suresh Babu's article on Liability of flawed legal opinion is very interesting and informative. But the issue of unjustified legal fee being demanded by a some lawyers is not touched upon in the article. Besides the procedural and legal flaws being committed by them whether unknowingly or otherwise,the abnormal fee being demanded is causing a serious concern among the clients. Many times, the fee is calculated based on the market value of the property as on date. Is it right ?When the client starts with a trial court, imagine what is the total lawyer fee going to be by the time he comes out of the litigation either won or lost, not to talk about the mental turmoil the client has to undergo in the process. I myself have experienced this unethical behaviour with a district court lawyer who started demanding a huge sum as a percentage of the value of the property and was adamant that he would file my vakalat only after agreeing to his terms. Earlier on, he only argued my case in the trail court and won also. When the decision on payment was delayed, he went to the extent of not filing the vakalat on the due date which resulted in a ex-parte judgement. Ofcourse, it was not a final judgement and hence I could come out of it by filing a petition through a different lawyer citing some reasons. What if it was to be the final stage and the judgement followed. What I would like to know is whether there are any ethics and code of conduct stipulated for that kind of lawyers in these matters and upper fee limit specified to avoid fleecing and exploitation of the hapless clients. Is there is any mechanism for redressal of such grievances ? Kindly clarify.
Mr. K. Suresh Babu has written an enlighten Article on Liability of Flawed legal Opinion. Every organisation Government, State or Central have their fixed format of legal opinion Banks, Financial institutions and basing on that Advocate render his legal opinion. Some time pressures,or may be paid for rendering legal opinion to suit the interest of the client to get loan by mortgage etc. Advocates always try their best to scrutinize all documents perused basing on that Advocate has to render his legal opinion as per law and he should not deviate from law to render legal opinion. Inpite of best efforts some time Advocate may commit error by ignorance of law or for lack of professional efficiency and an Advocate must be afforded an opportunity if legal opinion rendered is flawed, if is explanation is not satisfied then may be proceeded against Advocate.
1. An "opinion" is only a Advocates findings /observations, based on the documents submitted to him. An "Legal Opinion" has no significance in a Court of Law.
2. The client is always at his own discretion to use the said "legal opinion" or discard it without any reference to the Advocates findings.
3. IF an "legal opinion" were to be final judgement by a private advocate, THEN there would be no need for courts to adjudicate in the matter.
4. Note: Ten different advocates can give ten different opinions and contrary opinions. However by law, a court judgement is final.
Keep Smiling .... Hemant Agarwal
AS FAR i know many clients (Only Govt Department) compells advocate to give opinion suiting there personal needs and such can easily be proved as wrong.Supreme Court judgment is favouring such erroring situations.
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