Why lawyers can’t be sued in consumer courts

The fundamental issue before the court was: should the members of the legal profession be covered under the consumer protection laws? This further raises the issue, whether the Parliament intended to include the legal profession or the other professions within the purview of Consumer Protection Act, 1986, as re-enacted in 2019?

The apex court has made it clear that professionals cannot be called businessmen or traders nor clients or patients be called consumers. The terms ‘business’ or ‘trade’ have ‘commercial’ connotation.

On the other hand, the term ‘profession’ involves learning or science. The nature of work of a professional is also skilled and specialised one. Most of the work of the professional is mental. Therefore, the success would depend upon many other factors beyond a man’s control.

Renowned American legal scholar Roscoe Pound has explained profession. Historically, there are three ideas involved in a profession. Organisation, learning and the spirit of public service. The remaining idea, that of earning a livelihood is incidental. When the lawyers do well professionally, they make a good living. Consequently, the top court has held that the professionals cannot be treated equally or at par with the businessman or a trader or a service provider of products or goods as contemplated in the Consumer Protection Act.

The next question is, whether the legal profession is different from other professions? It is recognised in a catena of decisions that the legal profession cannot be equated with any other traditional profession. It is not commercial in nature. It is essentially service oriented. In fact, it is a noble profession. An advocate owes his duty not only to his client but also to the court as well as the opposite side. It needs to be understood that what the advocates do, affects not only an individual but the entire administration of justice.

There is a need to take into consideration certain other aspects which clearly distinguish the legal profession from other professions. The lawyers frequently navigate through complex legal landscapes shaped by diverse factors. The lawyers often face ambiguity and uncertainty in their work. The lawyers on both sides employ strategies to bring results in favour of their clients. The results are dependent upon the decisions of judges. Thus, the lawyer is controlled by ‘uncertainty’ throughout. The lawyers have no control over their environment. The environment is controlled by the presiding judge. Moreover, whenever a conflict arises, the lawyers’ duty towards the court is considered paramount. The duty to the clients gets relegated to number 2.

It has been further held that legal representation of an advocate for a fee does not constitute a service under consumer protection laws. As an advocate, he is entitled to practice in all courts. However, he can act for any person only when he is appointed by such person by executing, ‘vakalatnama’. He can do only what he has been authorised through the ‘vakalatnama’. The services rendered by an advocate constitute a contract of ‘personal service’. Hence, a complaint alleging deficiency in service shall not be maintainable under the Consumer Protection Act.

This leads us to another fundamental question. Does it mean that advocates are not liable for their professional misconduct? They are liable. Not under the Consumer Protection Act, but under the Advocates Act, 1961. The Act provides comprehensive provisions. Further, the Bar Council of India has framed the rules. If an advocate is found guilty of professional or other misconduct by the disciplinary committee of the State Bar Council or the Bar Council of India, he/she would be punished in accordance with the statutory provisions and the rules.
It is often alleged that the State Bar Councils and the Bar Council of India are not playing their role with utmost responsibility. The members of the disciplinary committees belong to the same legal fraternity. Resultantly, it leaves much to be desired.

The Advocates Act needs to be more effective. Maybe, the Parliament and the Indian Bar Council need to review the legislation. The object and purpose of the Act is not to provide the escape routes to the legal fraternity, but to ensure that the members of the legal profession discharge their different duties free from misconduct. The administration of justice will suffer seriously if Bar Councils fail to perform their role. The object is not to target the legal fraternity but to bring them within the discipline of the Act and the rules.

This being the legal position, the Supreme Court has proposed review of its 1995 ruling in the Indian Medical Association matter. In this case, the apex court had held that healthcare services are covered under the Consumer Protection Act. The doctors could be sued for deficiency in service and negligence. The bench has referred this ruling (1995) to a larger bench for reconsideration and re-evaluation of the application of consumer protection laws to other professional services, including the doctors. A wholesome view needs to be taken. The caveat is added. A practicing professional has an obligation to maintain probity and high standard of professional ethics and morality. There is no exception to this.

(The writer is Professor Emeritus and former director of the National Judicial Academy)