Negligence in law simply means, breach of a duty of care which results in damage. When it comes to professional negligence, we mostly hear about medical negligence cases. A mere look at the backlog of cases and filing of frivolous complaints have me wondering about the liability and duty of care that the legal professionals owe to the court, their clients and the society. As was held in Re Sanjiv Datta, Secretary, Ministry of Information and Broadcasting, by the Hon’ble Supreme Court of India, “legal profession is a serious occupation and the slipshod attitude of the members of legal fraternity is evident in the failure to be present when case is called out, incorrect and incomplete filings before the court, failure to pay court fees and other dues, failure to remove office objections etc.” It was also noted by the court that this not only amounts to contempt of court but is an action of ‘positive dis-service to the litigants’ and portends the unfortunate fate of the judicial system.
A professional, including a legal professional, is liable under law of Torts and law of Contracts to exercise reasonable care while giving advice or performing services. This has been observed in a number of judgments by the High Courts and Supreme Court of India.
Such dereliction of duty towards the client, the court and the legal profession itself, is shameful. A few remedial actions that can be opted for in cases of negligence by a legal professional are listed below.
- Section 5, The Legal Practitioners (Fees) Act, 1926 states that,
Liability of legal practitioner to be sued – No legal practitioner who has acted or agreed to act shall, by reason only of being a legal practitioner, be exempt from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties.
- If any person is receiving legal aid under the ‘Supreme Court Middle Income Group Legal Aid Scheme’ of the Supreme Court of India, then the advocate who is appointed will have to return the brief along with the fee received under the scheme, if he/she is found to be negligent in the conduct of the case assigned to him/her.
This goes on to show that the Supreme Court of India gives high regard to good professional practice by lawyers.
- Supreme Court has started imposing fines on lawyers for filing of frivolous Public Interest Litigations (PILs) and petitions, for example, in July 2017, Supreme Court imposedm a fine of Rs.1 lakh on a lawyer for wasting judicial time. He had sought scrapping of all colonial laws.
- Professional bodies also govern misconduct and negligence by a legal practitioner. Sections 35 and 36 of the Advocates Act, 1961 empower the State Bar Councils and the Bar Council of India to take action against the advocate enrolled with them if they fail to perform their duties or are liable for negligence in professional practice. The Disciplinary Committee of Bar Council of India in, BCI TR Case No.138 of 2005 found the advocate guilty of gross negligence in discharge of his professional service to the client and imposed a fine on him as well.
A common man might fail to understand the nuances of law and how the procedure of the court goes about. It is imperative for a lawyer or a legal practitioner to perform his duty towards the clients as well as the court, with utmost diligence and care. A legal professional’s conduct not only affects his/her clients but also the society at large.
has been authored by Jaya Mitra
 Jackson and Powell on Professional Negligence, 3rd Edition, paras 1-04, 1-05 and 1-56.