Ethical Dilemmas in the Lawyer–Client Relation: Concerns and Solutions
| Date | 01 January 2020 |
| Author | Anirban Chakraborty |
| Published date | 01 January 2020 |
| DOI | 10.1177/2322005819893279 |
| Subject Matter | Articles |
Ethical Dilemmas in the
Asian Journal of Legal Education
7(1) 25–34, 2020
Lawyer–Client Relation: Concerns
© 2019 The West Bengal National
University of Juridical Sciences
and Solutions
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DOI: 10.1177/2322005819893279
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Anirban Chakraborty1
Abstract
Lawyer–client relationship is the most important aspect of professional life of lawyers. When lawyers
enter into professional relation with their clients they become bound by several ethical and professional
duties. These duties are a mixture of status and contract emerging out of the nature of the relationship
governing lawyer and client. Observing these duties is indispensable under the rules governing standards
of professional conduct for lawyers. Lot has been written about these duties and the need to observe
them, but the untraded area in the literature remains some of the challenges that arise in course of
observing these duties due to some equally competing issues. The lawyers often face these challenges
in their professional life, but little guidance is available to address them effectively. In this context, the
aim of this article is to trace some of these competing issues and challenges and discuss the legal and
regulatory framework that help to address them. The article begins by exploring the issues that arise
at the very formation of the lawyer–client relationship. In the second part, the article examines the
issue of lawyer’s scope and authority to make decisions in legal transactions for their clients. Also it
covers the issues involving extent of lawyer’s authority to take decisions on behalf of mentally impaired
or minor clients. Finally, the article looks into the issues that come up during the discharge of the
lawyer–client relationship. The article concludes on the note that to ensure an effective and satisfactory
lawyer–client relation it is an imperative that lawyers are sensitized with these issues and the principles
they can look at for their resolution.
Introduction
On the morning of 8 May 2019, the entire legal fraternity of India wakes to learn in shock and mourn that
one of its great son Professor N.R. Madhava Menon has set on his heavenly journey renouncing this
world forever. It was an irreparable loss because rarely a great talent and persona like him is born. A
person coming from a very humble background, reached to the zenith of the Indian legal fraternity with
his sheer hard work, impeccable personal discipline and professional commitment. There is hardly any
field in Indian legal profession where he has not left a mark by his scholarship and contribution. He has
been a phenomenal law teacher, a serious academic scholar, a visionary administrator and reformist and
1 Maharashtra National Law University, Khapri, Nagpur, India.
Corresponding author:
Anirban Chakraborty, Maharashtra National Law University, Khapri, Nagpur, Maharashtra 441108, India.
E-mail: anir_chak@yahoo.com
26
Asian Journal of Legal Education 7(1)
a noteworthy leader in the field of continuing legal and judicial education. But of all the achievements
he commands, he will always be especially remembered for his contribution in the reform of Indian
Legal education. The highlight of his professional career came with his role in founding the National
Law Schools at Bangalore and Kolkata which today has received global admiration. As a law teacher he
has dedicated his life in improving the quality of the legal professionals in India. Till the day of his
demise, he has worked tirelessly to develop programmes which would provide opportunity and training
to law students and lawyers to improve their professional competence and quality. The author had a long
association with Prof. Menon and appreciates Asian Journal of Legal Education’s initiative to publish a
special issue dedicated in the memory of this celebrated personality. Availing this opportunity and to pay
personal tribute to this great law teacher this article contributes on a theme very dear to Prof. Menon,
professional responsibility of lawyers. The article addresses some fundamental issues involved in the
lawyer–client relationship.
A lawyer–client relationship may be established when a client approaches a lawyer for some legal
advice or service and the lawyer accepts to provide the same. But when a lawyer enters into a relation
with his client to provide his legal service, she becomes bound by several ethical and professional duties.
These ethical duties are a mixture of status and contract emerging out of the nature of the relationship
governing the lawyer and client. That is to say that some elements of this relationship are based on the
contractual relation that the lawyer is entering with his client to provide his legal service. Others are
based on his obligations emerging from the fiduciary relation that a lawyer has with his client and the
same cannot be entirely waived by the lawyer or his client. Observing these duties is indispensable under
the rules governing standards of professional conduct of lawyers. Lot has been written about these duties
and the need to observe them, but the untraded area in the literature remains some of the challenges that
arise in course of observing these duties due to some equally competing issues. The lawyers often face
these challenges in their professional life, but little guidance is available to address them effectively. This
article aims to trace the issues and challenges that arise in course of a lawyer–client relation by exploring
the rules governing the standards of professional responsibility. It also discusses the guidelines for
lawyers based on the existing legal and regulatory framework to resolve these challenges. The article
however does not intend to indulge into the issues arising from the fiduciary nature of the lawyer–client
relationship, for example, ‘conflict of interest’ and ‘confidentiality’. It only aims to address the range of
issues that emerges from the contractual nature of this relationship.
The article begins by exploring the issues that informs the very formation of the lawyer–client
relationship. It then examines the issues emerging in connection to decision-making in a case and with
special reference to mentally impaired or a minor client. Finally, it examines the issues in termination of
lawyer–client relationships and the duties of lawyers towards clients at the end of the lawyer–client
relationship. The article concludes by highlighting the importance of the knowledge of the rules that
governs these issues to ensure an effective and satisfactory relation between the lawyer and clients.
Ethical Dilemmas of Lawyers During the Formation of
The Lawyer–Client Relationship
Majority of lawyer–client relationships begin in a very straightforward manner. A client comes to a
lawyer’s office, explains about his legal issues or requirement, reaches an agreement and formally
engages the lawyer to deal with his legal issues. There are no mandatory rules that are required to be
completed with appointment of a lawyer. The existing Bar Council of India Rules governing ‘Standards
Chakraborty 27
of Professional Conduct and Etiquette’ for advocates in India1 (will be referred hereafter as BCI Rules)
does not specify any requirement for forming a lawyer–client relationship. Rule 11...
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