Friday, September 21, 2012

Supreme Court: Can't sue lawyers for wrong advice

At a time when it is the norm to seek legal opinion prior to taking a decision, the Supreme Court has come to the rescue of lawyers by ruling that they cannot be prosecuted for rendering wrong advice if there is no link between them and perpetrators of a fraud or offence.

But the court said the advocate's opinion must be bona fide as all legal practitioners owe "an unremitting loyalty to the interests of a client and it is the lawyer's responsibility to act in a manner that would best advance the interest of the client".

A bench of Justices P Sathasivam and Ranjan Gogoi gave this judgment while dismissing the CBI's appeal against an Andhra Pradesh High Court order quashing criminal proceedings against an advocate for rendering legal opinion on genuineness of title deeds for sanction of loans, which resulted in a multi-crore loan fraud involving a nationalized bank.

Writing the judgment for the bench, Justice Sathasivam said, "Merely because his opinion may not be acceptable, he cannot be mulcted (punished) with criminal prosecution, particularly, in the absence of tangible evidence that he associated with other conspirators. At the most, he may be liable for gross negligence or professional misconduct if it is established by acceptable evidence but cannot be charged for the offence under Section 420 (cheating) and 109 (abetment) along with other conspirators without proper and acceptable link between them."

The court drew a parallel between lawyers and other professionals like doctors and said none of them could guarantee success - either in litigation or in treatment.

"A lawyer does not tell his client that he shall win the case in all circumstances. Likewise, a physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on," the bench said.

"The only assurance which such a professional can give or can be given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him, he would be exercising his skill with reasonable competence. This is what the person approaching the professional can expect," the court said.

"Judged by this standard, a professional may be held liable for negligence on one of the two things - either he did not possess the requisite skill which he professed to have possessed or he did not exercise, with reasonable competence in the given case, the skill which he possessed," it added.

Quoting an earlier judgment, the court said it was not necessary for every professional to possess the highest level of expertise in that branch which he practiced. It quoted another judgment of the SC, in which it had ruled that "mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct".

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