Changing an advocate by a litigant
A litigant has the right to change his advocate when he feels that the advocate engaged by him is not capable of espousing his cause efficiently or that his conduct is prejudicial to the interest involved in the case, or for any other reason, says the Supreme Court (SC) in R.D. Saxena v Balram Prasad Sharma [2000 INSC 409].
The SC adds, for whatever reason, if a client does not want to continue the engagement of a particular advocate it would be a professional requirement consistent with the dignity of the profession that he should return the brief to the client.
Such an obligation is not only a legal duty but a moral imperative, as well.
Litigant has the fundamental right to change the advocate
The SC says that in civil cases, the appointment of an advocate by a party would be deemed to be in force until it is determined with the leave of the court, (vide Order 3, Rule 4(1) of the Code of Civil Procedure).
In criminal cases, every person accused of an offence has the right to consult and be defended by a legal practitioner of his choice which is now made a fundamental right under Article 22(1) of the Constitution.
Advocate cannot keep the brief for arrears of fee
In State of Madhya Pradesh v Shobharam & Others [AIR 1966 SC 1910], the SC says that the right of the accused to change an advocate whom he once engaged in the same case, cannot be whittled down by that advocate by withholding the case bundle on the premise that he has to get the fees for the services already rendered to the client.
Advocate can exercise other remedies to get his dues
The SC adds that the advocate who relinquished the vakalath is not without remedies to realise the fee which he is legitimately entitled to.
Send a letter to the former advocate & cancel the Vakalatnama
When a litigant wants to cancel the Vakalatnama of an advocate in order to engage a new advocate, he should send a letter of cancellation to the previous advocate and ensure that he receives it.
The Vakalatnama gets cancelled when the letter of cancellation reaches the advocate.
Ask for his consent letter to engage a new advocate
The litigant can then ask for a consent letter from him to engage a new advocate. If he gives the consent letter that can be filed along with the filing of Vakalatnama of the new advocate.
If the previous advocate refuses to give the consent letter the new advocate can seek court’s permission which the court is bound to give, and thereon can file his Vakalatnama.
In conclusion
That, in other words, means an advocate who wants to appear for a litigant in the middle of a case where another advocate is already there on record, the new advocate should produce the written consent of the previous advocate.
In case he refuses to give written consent, the new advocate should obtain special permission of the court. In fact, it is binding on the court to give permission to the advocate in such circumstances.
References
- D. Saxena v Balram Prasad Sharma, delivered on 22 August, 2000
- State of Madhya Pradesh v Shobharam & Others [AIR 1966 SC 1910]
