Current Advocate not giving NOC & Case Documents to Change New Advocate
2 years ago
Respected Advocates,
I have hired an advocate to deal with my divorce issue at Telangana High court, Hyderabad. The advocate has charged very high fees for my legal notice, Divorce petition charges that he demanded to pay the fees by cash. As per the advocate's request, I have paid the fees by cash but I insist him to provide the receipt which he didn't gave. I have asked my Advocate many times to provide a copy of my case documents (i.e Legal notice copy, Divorce petition copy, Legal notice reply received from the opposite advocate, Register post acknowledgement..etc) but he has never provided it. Further, I have seen my advocate not taking proper responsibility in taking up my case, when I am at risk he has been delaying my casework. The guidance my advocate has given me is wrong and have kept me in more trouble.
After understanding this situation, I met new Advocates outside to know their perspective about my case and they all revealed my case was not taken properly by my old Advocate. In fact, my old Advocate didn't reveal the first hearing date of my Divorce petition which has passed away. I have been asking my old Advocate to give me a NOC & case documents so that I can represent a new Advocate but he is not providing them. My second hearing for the Divorce petition is due in another 1 - 2 weeks. I want to give my Divorce case to the new Advocate, request you to reply to these 4 questions about the best possible way to resolve this issue.
1) It looks like my Old Advocate is trying to demand more money by not providing NOC & case documents. Is this the only way to get NOC & case documents by paying more amount to Old Advocate?
2) Even though I have cleared all the dues at my old Advocate and he is creating a problem for me to change my new Advocate, Do I have any risk in future that my old Advocate can create problems?
3) Without approaching my old Advocate for NOC - What are alternative ways to give my case to a new Advocate, get my case documents and how much time this process will take?
4) During this Covid situation getting a NOC from my Old Advocate or giving my case to a new Advocate through alternate ways, can't these things are done online and do they need to be done physically?
A.Hi,
In civil disputes, an advocate appointed by a party is presumed to be in effect until the court determines otherwise (see Order 3, Rule 4(1) of the Code of Civil Procedure). A litigant must be able to replace his or her advocate if he or she believes that the one he or she has hired is incapable of effectively advocating his or her case, or if his or her conduct is harmful to the interests at stake in the lis, or if he or she believes that his or her conduct is detrimental to the interests at stake in the lis. If a client did not desire to continue working with a certain advocate for whatever reason, it would be a professional duty to do so. In these situations, it is a moral necessity, not a legal requirement, for the advication to return the files.
Thank you. Kindly rate the answer.
In civil disputes, an advocate appointed by a party is presumed to be in effect until the court determines otherwise (see Order 3, Rule 4(1) of the Code of Civil Procedure). A litigant must be able to replace his or her advocate if he or she believes that the one he or she has hired is incapable of effectively advocating his or her case, or if his or her conduct is harmful to the interests at stake in the lis, or if he or she believes that his or her conduct is detrimental to the interests at stake in the lis. If a client did not desire to continue working with a certain advocate for whatever reason, it would be a professional duty to do so. In these situations, it is a moral necessity, not a legal requirement, for the advication to return the files.
Thank you. Kindly rate the answer.
Helpful
Helpful
Share
Ayantika Mondal @ Prime Legal
Responded 2 years ago
A.Hi,
In civil cases 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). A litigant must be entitled to replace his advocate if he believes that the one he has hired is incapable of effectively advocating his case, or if his conduct is detrimental to the interests at stake in the lis, or for any other reason. It would be a professional requirement consistent if a client did not wish to continue the engagement of a specific advocate for whatever reason. It is a moral imperative and not a legal obligation of the advication in these cases to give back the files.
Thank you, Kindly rate the answer
In civil cases 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). A litigant must be entitled to replace his advocate if he believes that the one he has hired is incapable of effectively advocating his case, or if his conduct is detrimental to the interests at stake in the lis, or for any other reason. It would be a professional requirement consistent if a client did not wish to continue the engagement of a specific advocate for whatever reason. It is a moral imperative and not a legal obligation of the advication in these cases to give back the files.
Thank you, Kindly rate the answer
Helpful
Helpful
Share
A.1. No this is not the only way. Unless there is some fee due he should give you the documents without any issues.
2. No there are no risk and he shall not create any problem lest he does he himself will land into pronlem.
3. NOC is no mandatory and your lawyer can tell the situation to the court, also cite COVID as reason but papers are necessary. Court will listen. ( Look at Karnataka High Court Judgement Below).
4. You can lodge a complain to the Bar Council of Telangana with a copy to the old Advocate and you shall receive all very next say the the advocate receives the copy of the letter.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Miscellaneous First Appeal No. 6526/2013 (LAC)
Decided On: 02.12.2016
Karnataka Power Transmission Corporation Ltd. Vs.
M. Rajashekar and Ors.
Hon'ble Judges/Coram:
H.G. Ramesh and John Michael Cunha, JJ.
1. Whether vakalatnama filed by a new advocate is to be accepted in the absence of 'no objection' of the advocate already on record, is the short question for consideration in this case.
2. Registry has raised an objection on the vakalatnama of the appellant filed by Sri Ajith Anand Shetty, advocate; objection is that the vakalatnama does not contain 'no objection' of the advocate already on record for the appellant.
3. We have heard Sri Ajith Anand Shetty, learned counsel, on the objection raised by the Registry. The learned counsel submitted that a party to a litigation has an absolute right to appoint an advocate of his choice, to terminate his services, and to appoint a new advocate. Hence, a party cannot be compelled to obtain 'no objection' from the advocate already on record. Insisting for 'no objection' from the previous advocate will
amount to putting a restriction on the right of a party to appoint an advocate of his choice. He sought for overruling of the objection raised by the Registry. In support of his submission, he relied on two decisions of the Supreme Court in R.D. Saxena v. Balaram Prasad Sharma [MANU/SC/3273/2000 : AIR 2000 SC 2912], and in New India Assurance Co. Ltd. v. A.K. Saxena [MANU/SC/0913/2003 : AIR 2004 SC 311], and also a Division Bench decision of this Court in Sri C.V. Sudhindra & Ors. vs. M/s. Divine Light School for Blind & Ors. [MANU/KA/0284/2008 : ILR 2008 KAR 3983].
4. To examine the question raised, it is relevant to refer to the following observations made by the Supreme Court in R.D. Saxena v. Balaram Prasad Sharma [MANU/SC /3273/2000 : AIR 2000 SC 2912]: "15. A litigant must have the freedom 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 lis, or for any other reason. 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. It is time to hold that such obligation is not only a legal duty but a moral imperative. 17. If a party terminates the engagement of an advocate before the culmination of the
proceedings that party must have the entire file with him to engage another advocate. But if the advocate who is changed midway adopts the stand that he would not return the file until the fees claimed by him is paid, the situation perhaps may turn to dangerous proportion. There may be cases when a party has no resource to pay the huge amount claimed by the advocate as his remuneration. A party in a litigation may have a version that he has already paid the legitimate fee to the advocate. At any rate if the litigation is pending the party has the right to get the papers from the advocate whom he has changed so that the new counsel can be briefed by him effectively. In either case it is impermissible for the erstwhile counsel to retain the case bundle on the
premise that fees is yet to be paid. 18. Even if there is no lien on the litigation papers of his client an advocate is not without remedies to realise the fee which he is legitimately entitled to. But if he has a duty to return the files to his client on being discharged the litigant too has a right to have the files returned to him, more so when the remaining part of the lis has to be fought in the court. This right of the litigant is to be read as the corresponding counterpart of the professional duty of the advocate. 23. We, therefore, hold that the refusal to return the files to the client when he demanded the same amounted to misconduct under Section 35 of the Act. Hence, the appellant in the present case is liable to punishment for such misconduct. 42. ........It is true that an advocate is competent to settle the terms of his engagement and his fee by private agreement with his client but it is equally true that if such fee is not paid he has no right to retain the case papers and other documents belonging to his client. Like any other citizen, an advocate has a right to recover the fee or other
amounts payable to him by the litigant by way of legal proceedings but subject to such restrictions as may be imposed by law or the rules made in that behalf. ......." (Emphasis and underlining supplied)
5. In the context of the question raised, the following observations made by a Division Bench of this Court in Sri C.V. Sudhindra & Ors. vs. M/s. Divine Light School for Blind & Ors. [MANU/KA/0284/2008 : ILR 2008 KAR 3983] are also apposite:
" We are therefore of the considered opinion that the contract of vakalathnama can be withdrawn by the client at any time. There is nothing known as irrevocable vakalathnama. Precisely the same right has been exercised by respondent No. 1 herein (defendant No. 7 in the suit) who had earlier engaged the petitioners on their behalf as Advocates to represent them. ......
" ......if the Advocate feels that he has any genuine claim or grievance against his client, the appropriate course is to return the brief with endorsement of no objection and agitate such right in an appropriate forum, in accordance with law and not indulge in arm twisting methods by holding on to the brief."
6. As could be seen from the observations made in the two decisions extracted above, a party to a litigation has an absolute right to appoint an advocate of his choice, to terminate his services, and to appoint a new advocate. A party has the freedom to change his advocate any time and for whatever reason. However, fairness demands that the party should inform his advocate already on record, though this is not a condition precedent to appoint a new advocate.
7. There is nothing known as irrevocable vakalatnama. The right of a party to withdraw vakalatnama or authorization given to an advocate is absolute. Hence, a party may discharge his advocate any time, with or without cause by withdrawing his vakalatnama or authorization. On discharging the advocate, the party has the right to have the case file returned to him from the advocate, and any refusal by the advocate to return the file
amounts to misconduct under Section 35 of the Advocates Act, 1961. In any proceeding, including civil and criminal, a party has an absolute right to appoint a new Advocate. Under no circumstance, a party can be denied of his right to appoint a new advocate of his choice. Therefore, it follows that any rule or law imposing restriction on the said right can't be construed as mandatory. Accordingly, Courts, Tribunals or other
authorities shall not ask for 'no objection' of the advocate already on record, to accept the vakalatnama filed by a new advocate.
8. As observed in the decisions referred to above, if an Advocate is discharged by his client and if he has any genuine claim against his client relating to the fee payable to him, the appropriate course for him is to return the brief and to agitate his claim in an appropriate forum, in accordance with law.
9. As stated above, under no circumstance, a party can be denied of his right to appoint a new advocate of his choice. The right is absolute and not conditional. Hence, the objection raised by the Registry on the vakalatnama is overruled. Hereafter, the Registry shall not ask for 'no objection' of the advocate already on record, to accept the vakalatnama filed by a new Advocate.
2. No there are no risk and he shall not create any problem lest he does he himself will land into pronlem.
3. NOC is no mandatory and your lawyer can tell the situation to the court, also cite COVID as reason but papers are necessary. Court will listen. ( Look at Karnataka High Court Judgement Below).
4. You can lodge a complain to the Bar Council of Telangana with a copy to the old Advocate and you shall receive all very next say the the advocate receives the copy of the letter.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Miscellaneous First Appeal No. 6526/2013 (LAC)
Decided On: 02.12.2016
Karnataka Power Transmission Corporation Ltd. Vs.
M. Rajashekar and Ors.
Hon'ble Judges/Coram:
H.G. Ramesh and John Michael Cunha, JJ.
1. Whether vakalatnama filed by a new advocate is to be accepted in the absence of 'no objection' of the advocate already on record, is the short question for consideration in this case.
2. Registry has raised an objection on the vakalatnama of the appellant filed by Sri Ajith Anand Shetty, advocate; objection is that the vakalatnama does not contain 'no objection' of the advocate already on record for the appellant.
3. We have heard Sri Ajith Anand Shetty, learned counsel, on the objection raised by the Registry. The learned counsel submitted that a party to a litigation has an absolute right to appoint an advocate of his choice, to terminate his services, and to appoint a new advocate. Hence, a party cannot be compelled to obtain 'no objection' from the advocate already on record. Insisting for 'no objection' from the previous advocate will
amount to putting a restriction on the right of a party to appoint an advocate of his choice. He sought for overruling of the objection raised by the Registry. In support of his submission, he relied on two decisions of the Supreme Court in R.D. Saxena v. Balaram Prasad Sharma [MANU/SC/3273/2000 : AIR 2000 SC 2912], and in New India Assurance Co. Ltd. v. A.K. Saxena [MANU/SC/0913/2003 : AIR 2004 SC 311], and also a Division Bench decision of this Court in Sri C.V. Sudhindra & Ors. vs. M/s. Divine Light School for Blind & Ors. [MANU/KA/0284/2008 : ILR 2008 KAR 3983].
4. To examine the question raised, it is relevant to refer to the following observations made by the Supreme Court in R.D. Saxena v. Balaram Prasad Sharma [MANU/SC /3273/2000 : AIR 2000 SC 2912]: "15. A litigant must have the freedom 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 lis, or for any other reason. 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. It is time to hold that such obligation is not only a legal duty but a moral imperative. 17. If a party terminates the engagement of an advocate before the culmination of the
proceedings that party must have the entire file with him to engage another advocate. But if the advocate who is changed midway adopts the stand that he would not return the file until the fees claimed by him is paid, the situation perhaps may turn to dangerous proportion. There may be cases when a party has no resource to pay the huge amount claimed by the advocate as his remuneration. A party in a litigation may have a version that he has already paid the legitimate fee to the advocate. At any rate if the litigation is pending the party has the right to get the papers from the advocate whom he has changed so that the new counsel can be briefed by him effectively. In either case it is impermissible for the erstwhile counsel to retain the case bundle on the
premise that fees is yet to be paid. 18. Even if there is no lien on the litigation papers of his client an advocate is not without remedies to realise the fee which he is legitimately entitled to. But if he has a duty to return the files to his client on being discharged the litigant too has a right to have the files returned to him, more so when the remaining part of the lis has to be fought in the court. This right of the litigant is to be read as the corresponding counterpart of the professional duty of the advocate. 23. We, therefore, hold that the refusal to return the files to the client when he demanded the same amounted to misconduct under Section 35 of the Act. Hence, the appellant in the present case is liable to punishment for such misconduct. 42. ........It is true that an advocate is competent to settle the terms of his engagement and his fee by private agreement with his client but it is equally true that if such fee is not paid he has no right to retain the case papers and other documents belonging to his client. Like any other citizen, an advocate has a right to recover the fee or other
amounts payable to him by the litigant by way of legal proceedings but subject to such restrictions as may be imposed by law or the rules made in that behalf. ......." (Emphasis and underlining supplied)
5. In the context of the question raised, the following observations made by a Division Bench of this Court in Sri C.V. Sudhindra & Ors. vs. M/s. Divine Light School for Blind & Ors. [MANU/KA/0284/2008 : ILR 2008 KAR 3983] are also apposite:
" We are therefore of the considered opinion that the contract of vakalathnama can be withdrawn by the client at any time. There is nothing known as irrevocable vakalathnama. Precisely the same right has been exercised by respondent No. 1 herein (defendant No. 7 in the suit) who had earlier engaged the petitioners on their behalf as Advocates to represent them. ......
" ......if the Advocate feels that he has any genuine claim or grievance against his client, the appropriate course is to return the brief with endorsement of no objection and agitate such right in an appropriate forum, in accordance with law and not indulge in arm twisting methods by holding on to the brief."
6. As could be seen from the observations made in the two decisions extracted above, a party to a litigation has an absolute right to appoint an advocate of his choice, to terminate his services, and to appoint a new advocate. A party has the freedom to change his advocate any time and for whatever reason. However, fairness demands that the party should inform his advocate already on record, though this is not a condition precedent to appoint a new advocate.
7. There is nothing known as irrevocable vakalatnama. The right of a party to withdraw vakalatnama or authorization given to an advocate is absolute. Hence, a party may discharge his advocate any time, with or without cause by withdrawing his vakalatnama or authorization. On discharging the advocate, the party has the right to have the case file returned to him from the advocate, and any refusal by the advocate to return the file
amounts to misconduct under Section 35 of the Advocates Act, 1961. In any proceeding, including civil and criminal, a party has an absolute right to appoint a new Advocate. Under no circumstance, a party can be denied of his right to appoint a new advocate of his choice. Therefore, it follows that any rule or law imposing restriction on the said right can't be construed as mandatory. Accordingly, Courts, Tribunals or other
authorities shall not ask for 'no objection' of the advocate already on record, to accept the vakalatnama filed by a new advocate.
8. As observed in the decisions referred to above, if an Advocate is discharged by his client and if he has any genuine claim against his client relating to the fee payable to him, the appropriate course for him is to return the brief and to agitate his claim in an appropriate forum, in accordance with law.
9. As stated above, under no circumstance, a party can be denied of his right to appoint a new advocate of his choice. The right is absolute and not conditional. Hence, the objection raised by the Registry on the vakalatnama is overruled. Hereafter, the Registry shall not ask for 'no objection' of the advocate already on record, to accept the vakalatnama filed by a new Advocate.
Helpful
Helpful
Share
Read Related Answers
Sapinda relationship
Dear Client,
Under the Hindu Marriage act marrying within your pinda ie Sa- Pinda is prohibited under the sec 5 of the Hindu Marriage Act for the reason that the biological offspring would be genetic...
Is any legal obligation for me to share the property within my brothers and sister
Dear Client,
All children of your parents have a right to equal share in the property regardless if it is a male or a female but only in the circumstance of a partition or will or when died intestate...
My parents trying to control my life they want to control me like papate.
Dear Sir/Madam
If you have attained age of majority then you may stay away from your parents with your independent income and intimate them by issuing a legal notice.
Money fraud done by brother
Dear Client,
In the given situation, when you are an independent working woman, nothing can prevent or restrict you from walking out of your home to look for the destiny of your choice. You have the...
Inquiry Regarding Maintainability of GWOP Case
Dear Madam
GWOP is to be filed where children physically resides or physically goes and attendance school otherwise it is not maintainable on the ground of territory
Read Blogs on Family
Family Lawyers
Find Lawyers by Location
