No criminal action against lawyer if legal advice goes wrong, liable to malpractice if established by convincing evidence: Rajasthan HC

0

The High Court of Rajasthan has observed that if a legal advice given by a lawyer goes wrong, he will not submit it to criminal prosecution, as a lawyer. At most, he can be held liable for gross negligence or professional misconduct, if this is established by the filing of evidence in the file.Dr. Judge Pushpendra Singh Bhati observed: “If a legal opinion given by a…

The High Court of Rajasthan has observed that if a legal advice given by a lawyer goes wrong, he will not submit it to criminal prosecution, as a lawyer. At the most, he can be held liable for gross negligence or professional misconduct, if the latter is established by the recording of evidence.

Dr Justice Pushpendra Singh Bhati observed,

If a legal opinion given by a lawyer goes wrong, he will not be subject to criminal prosecution, as a lawyer. As stated above, a lawyer, at most, can be held liable for gross negligence or professional misconduct, if established by placing compelling evidence on record, but a lawyer cannot be charged offences, as here alleged, with other conspirators. .

The panel considered that if a lawyer is prosecuted simply for giving a legal opinion/opinion, it will not be possible for a lawyer to give such a professional opinion, more particularly, when such a professional opinion, if it is judged unfavorable to the client, this would lead to criminal action against a lawyer and, in such circumstances, the system of administration of justice would suffer, because lawyers being an important component of the system of administration of justice justice would not be able to give their professional advice without fear and favor.

The lawyer, however, is bound by his professional conduct, but may only give advice to the best of his ability and ability; a lawyer never assures his client that his legal opinion/advice would result in a win-win situation for his client, under all circumstances. Once an opinion is given by a lawyer, it is the prerogative of the party concerned to adhere to it or not. Such professional advice cannot, however, result in criminal prosecution, as professional advice is a very delicate matter between a client and a lawyer, for which the lawyer cannot be held criminally liable.

In this case, the petitioner, a lawyer, had challenged an order charging him for allegedly giving bad legal advice to his client, the municipality. Regarding the allocation of land in the municipality, it was alleged that the petitioner acquired pecuniary benefits, while adopting corrupt and illegal means, thereby causing the municipality/state a huge loss in the amount of Rs. 7.18, 800/-. Accordingly, the trial court had made the charges under Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act and under Section 120B IPC.

The High Court held that on the basis of professional advice/opinion alone, the solicitor’s prosecution, as was done in the present case, cannot stand in the eyes of the law. The court added that this is all the more so when the prosecution failed to prove a prima facie case that the claimant, lawyer Rani Dan, was involved in a conspiracy to cause financial loss to the state treasury.

She observed that at the stage of laying the charges, the trial court is only required to presume prima facie whether a case against the accused can be established. The court noted that the facts emerging from the case can be taken at face value. If the facts reveal the existence of elements constituting the alleged offenses, then the charges can be formulated, added the court.

The High Court said,

“The word “presume” in Section 228 Cr.PC was consciously inserted by Parliament, with the intent that if the Court strongly suspects that the accused is in any way connected with the commission of the offenses alleged , then it may proceed to lay charges against the accused.The said word is to be read ejusdem generis to the opinion that there is reason to form an opinion that the accused has committed the offense alleged.

Furthermore, the court also observed that it would also be irrelevant whether said opinion was formed on the basis of direct or circumstantial evidence.

As a result, the applicant-lawyer was removed from his post.

Adv. LD Khatri and Adv. Dhan Raj Vaishnav appeared for the Claimant while PP NS Bhati appeared for the Respondent.

Case title: Gopi Kishan c. State of Rajasthan, through Pp with related subject

Quote: 2022 LiveLaw (Raj) 197

Click here to read/download the judgment

Share.

Comments are closed.