HOW REASONABLE IS 'REASONABLE' : The Dichotomy of Reasonable Duty of Care in Legal Representation

ABSTRACT:

?Imagine you have a big ball of yarn with lots of different colors woven together. Each color represents a different aspect of being reasonable in the law. Maybe one color stands for fairness, another for common sense, and another for following rules. By unraveling this ball of yarn, we can see how all these different aspects fit together and understand how they influence what it means to be reasonable. This abstract also aims to simplify the understanding of the duty of care in legal practice. The duty of care is the obligation that legal professionals, such as advocates, have towards their clients. It encompasses the responsibility to act in the best interests of the client, provide competent advice, and exercise diligence in legal representation. By delving into pertinent legal precedents and case studies, this article seeks to unravel the dimensions of reasonableness intertwined with duty of care and resultant negligence, offering insights into its interpretation, application, and significance within the realm of law

?A FEW WORDS MORE:

?In the world of law, when someone hires an advocate, they trust them to take care of their legal matters reasonably and responsibly. This trust is based on the idea of duty of care, where the advocate promises to look out for their client's best interests. But sometimes, things don't go as planned, and clients end up facing problems because their advocate didn't do their task properly. This delicate equilibrium between diligence and reasonableness serves a cornerstone for evaluating conduct, decisions, and its outcomes, be positive or negative. This is where the concept of reasonableness comes into play. It's important for advocates to act reasonably when representing their clients. But what exactly does "reasonable" mean in this context??

REASONABLE DUTY OF CARE VS NEGLIGENCE IN LEGAL REPRESENTATION:

?As per Tort laws, reasonable care is “the degree of caution and concern for the safety of the self and others an ordinarily prudent and rational person would use in the same circumstances.” It acts as a minimum standard that must be met, and failure to provide reasonable care in a situation can leave a litigant in a position to be guilty of negligence.

?Negligence, on the other hand, signifies a failure to uphold the duty of care, resulting in harm or injury to the client. In legal contexts, negligence encompasses various elements, including the breach of duty, causation, and resultant damages. When an advocate fails to act reasonably and carefully, he jeopardizes the interests of their client and open the door to unwanted repercussions.

?Advocates owe their clients a duty of care. Negligence is a failure to exercise the degree of care considered reasonable in the circumstances, resulting in financial or other loss. Clearly, the mere fact that an advocate fails to achieve what a client hoped to achieve with the advocate’s advice and assistance does not, in itself, mean that the advocate was negligent.

?In a case, the Supreme Court observed that “there is a difference between the Giving of improper advice and giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the on the part of legal practitioner in the exercise of profession does not amount to professional misconduct”;[1] ---- the verdict of the court was not guilty which has been elaborated above. Advocates have been regarded as the officers of the court.

?Equally clearly, advocates do have a responsibility to their clients. An advocate who fails to provide a legal service to a client with at least reasonable care and skill and whose failure causes the client to suffer a financial or other loss may well have breached his or her duty of care. The breach of that duty may amount to negligence and the client cannot be made to suffer the loss with is a direct result of such negligence and deficiency in service.

?In determining whether an ordinary individual is negligent in causing injury to another, the standard of care is usually expressed in a simple fashion by speaking of what a reasonable prudent person would do under similar circumstances.[2] The standard in the case of an advocate is somewhat more complicated. It is composed of at least two elements and possibly three.

• The first has to do with the care and diligence which he must exercise.
• The second is concerned with the minimum degree of skill and knowledge which he must display.
• The third may involve any additional skill which he may himself possess.

?When these three are aptly combined in a statement, ?a lawyer is answerable in damages for any loss to his client which approximately results from a want of that degree of knowledge and skill ordinarily possessed by others of his profession similarly situated, or from the omission to use reasonable care and diligence, or from the failure to exercise in good faith his best judgment in attending to the litigation committed to his care.[3]

Thus an advocate should use "such skill, care, and diligence as men of the legal profession commonly possess and exercise in such matters of professional employment." Negligence in the practice of law can manifest in various scenarios:

• Unreasonable delay in legal proceedings: Failure to promptly initiate legal action, especially when the statute of limitations is nearing expiration.
• Errors in pleadings: Mistakes in legal documents such as complaints, answers, or motions, which may result in adverse outcomes for the client.
• Filing lawsuits in the wrong court or on the wrong legal theory: Choosing an incorrect jurisdiction or legal strategy that harms the client's case.
• Improper service of legal documents: Failure to serve legal documents correctly or failure to persist in serving them, leading to delays or dismissal.
• Allowing a case to proceed by default: Failing to respond to legal actions or court deadlines, resulting in a default judgment against the client.
• Errors in legal advice or settlement negotiations: Providing incorrect advice or negotiating unfavorable settlements for the client.
• Failure to ensure proper execution or recording of legal documents: Neglecting to properly execute contracts, wills, or other legal instruments, rendering them unenforceable or invalid.
• Errors in estate management: Mishandling estate accounts, failing to properly distribute funds, or making errors in estate planning documents.
• Negligent drafting of legal instruments: Drafting contracts, wills, or other legal documents with errors that result in adverse consequences for the client.

The consequences of advocate's negligence can be significant, both for the affected clients and the advocates themselves. Clients may suffer financial losses, emotional distress, or other adverse outcomes as a result of their advocate's negligence. Advocates found to be negligent may face professional repercussions, including disciplinary actions by regulatory bodies, malpractice claims, and reputational damage. Professional liability insurance and adherence to bar association regulations provide mechanisms for addressing claims of advocate negligence and compensating affected clients. Overall, advocates are expected to uphold a high standard of care and competence in their professional practice, ensuring that they fulfill their ethical and legal obligations to their clients effectively and responsibly.

CLIENT - ADVOCATE RELATION ON TRUST AND RELIANCE :

?“Relationship between an advocate and his client is of trust and therefore sacred, such acts of professional misconduct and the frequency which with which such acts are coming to the light distress as well as sadness us, preservation of the mutual trust between the Advocate and the client is a must otherwise the prevalent judicial system in the country would collapse and fail.” opined in the matter of Vikas Deshpande v. Bar Council Of India & Ors[4].

Law always requires the test of reasonableness. Meaning thereby, the cause of non-appearance of the Advocate must be justifiable. It is the professional obligation of an Advocate to appear on behalf of his Client or make such alternate arrangements as necessary. But, if there is no sufficient reason and the Advocate by choice, omits to appear for a particular matter or before a particular bench, then is the innocent litigant to suffer injustice?

This relationship between an advocate and their client is deeply fiduciary, founded on trust and reliance. Clients entrust advocates with their legal matters, expecting thorough representation and protection of their rights. The Hon'ble Supreme Court, while deliberating in Rafiq v. Munshilal[5], on this same issue, while most recently even in a Revenue (GST) matter, the said judgement was once again celebrated by the Hon'ble Calcutta High Court in Jayshree Bhardwah v. Deputy? Commissioner Of Revenue W.B.State Tax & Ors[6]. wherein this doctrine was heavily delved into.

?CASE STUDY :

?A.?FACTS?

Smt. Jayshree Bhardwah, the Petitioner herein, is the proprietor of a business named M/s. Annapurna Caterer. Due to her limited knowledge of the GST regime, Jayshree Bhardwah hired a Chartered Accountant, Mr. Sandeep Kumar Jha, to handle her tax affairs. Mr. Jha, the CA herein, was entrusted with GST registration, accounting, and income tax matters. He used his email address for GST registration and had full access to tax portals and financial transactions. All payments related to taxes and other financial expenses were made through bank transfers to the CA.

In September 2022, the Petitioner discovered that her business account at Union Bank of India was blocked by the Revenue Department for GST recovery and as such the Petitioner was rendered being unaware of legal proceedings initiated against her by the Revenue Department due to her CA's control over GST portal access. Notices under Section 56(18) of the GST Act, summoning for documents, were sent to her registered email, but she remained uninformed. Thereafter, a show cause notice under Section 74 was also issued culminating into an order under Section 74 imposing liability of tax, interest and penalty. Pursuant to such order, recovery proceeding was initiated against the Petitioner. Upon gaining such information, the Petitioner immediately tried to contact the CA, but to her utter dismay, failed miserably as the CA was untraceable and it came as a bolt from the blue when the Petitioner learnt that the CA was a fraud and had misappropriated the funds of the Petitioner. hence, she lodged a written complaint on before the Police Station, Bagdogra.

Being aggrieved by and dissatisfied with such untoward happenings, the Petitioner preferred a statutory appeal accompanied by an application under Section 5 of the Limitation Act, 1963, seeking condonation of delay. Despite her efforts, the appeal was dismissed and got rejected solely on the ground of limitation.

The Petitioner, aggrieved by the dismissal of her appeal, filed a writ petition before the Hon’ble Calcutta High Court. In the writ petition, she requested an opportunity for a hearing before the appellate authority, putting her reliance on the Supreme Court judgment in the case of Rafiq & Anr. v. Munshilal & Anr[7] (1981) contending that the Petitioner should not be made to suffer due to laches caused because of the misconduct of the CA.

B.?ISSUE

1. What happens when the advocate, lawyer, Chartered Accountant or as a matter of fact any agent entrusted by a litigant, fails to perform his duties and obligations directly impacting the litigant’s interest?
2. While an individual typically bears responsibility for their agent’s fault, does the same principle apply to legal and financial professional standing on the same stead be regarded as ‘agents’ of the litigants?
3. Whether the litigant should be absolved of liability or consequences resulting from the advocate's or CA's misconduct, particularly if the litigant can prove that they acted in good faith and reasonably relied on the professional expertise of their advocate or CA?

?C.?RATIO AND THE JUDGEMENT

?In the instant case, the Hon'ble Calcutta High Court laid down that once a litigant engages a lawyer, provides instructions, pays the fees, and entrusts them with their case, the litigant should not be faulted for not actively overseeing their lawyer's actions. The Hon’ble Court recognized that the litigants shouldn't be burdened by the shortcomings of their chosen legal representatives and disposed the writ petition in the favour of the Petitioner.

?The Hon’ble Court appreciated the fact that the Petitioner's claim of ignorance of circumstances/ proceedings under the GST law and resultant suffering that is to say imposition of tax liability, interest and penalty, was due to the breach of trust by her Chartered Accountant, and that the Petitioner should receive a fair opportunity of being heard. Consequently, by setting aside the appellate order dismissing the appeal based on the limitation ground, the Hon’ble Court directed the concerned authority to reconsider the appeal on its merits, after affording the petitioner, a reasonable opportunity to present her case, without going into the misdoings of her CA.

D.?ANALYSES ON RATIO

1. ?The legal argument taken by the Petitioner in the above referred case before the Hon’ble High Court highlighting the principles of justice that a litigant who has done everything in his power expected of him should not suffer for the inaction whether willful or not, deliberate and non deliberate omissions, etc. of his Advocate or any legal representative.
2. In the above-referred matter, the Hon’ble Supreme Court thus established the principle and recognized the litigants' right to remain supremely confident, after engaging a lawyer, and that the latter will look after his interest.
3. Consequently, an innocent party will not suffer, merely because his learned advocate had defaulted and/or failed to exercise his reasonable due of care; in the instant case, even there was no failure on the part of the learned advocate, but it was only a matter of consequential discord in the array of documents in office, due to necessary renovation.
4. Therefore, in the light of the above ratio held by the Hon’ble Apex Court, the instant matter JAYSHREE BHARDWAJ VERSES DEPUTY COMMISSIONER OF REVENUE W.B. STATE TAX & ORS.[11] ,the Hon'ble Single Bench, Calcutta High Court laid down the same principles and upheld the principles of justice that a litigant who has done everything in his power expected of him should not suffer for the inaction whether willful or not, deliberate and non deliberate omissions, etc. of his learned Advocate or any legal representative.
5. The delay on the part of the lawyer or his agent is a sufficient cause to condone the delay as long as there are no willful latches and negligence on the part of the party/litigant who has engaged the concerned lawyer; more so, since in the instant case, there was a blatant failure and deficiency of service on the part of the CA, the Hon’ble Court recognized that the Petitioner must be granted an opportunity of hearing before the appellate authority and the appeal be considered on merits.
6. The delay in the instant matter, was not attributable to the Petitioner of the above-referred case, nor was the same under anyway in control of the Petitioner, and hence the Petitioner should not have not suffered for such a delay which was beyond his control.
7. Thus, the judgment passed in the above-referred case sheds light on the doctrine of duty of reasonable care owed by professionals to their clients, emphasizes the need for accountability and redressal in cases of professional misconduct and negligence and thereby means and steps taken by the Judiciary to protect the interests of the litigants/clients who are victimized by such negligence on the part of their chosen one.
8. Thus the argument of the Petitioner was squarely supported by the observations made in the case Rafiq vs. Munshilal by the Hon'ble Supreme Court[8] highlighting the inherent trust placed by parties (litigant) in their legal representatives and the expectation that they should not suffer for their advocate's lapses. The proposition established in Rafiq & Anr vs Munshilal & Anr[9] where the Apex Court held that

"The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr. A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe he is better informed on this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law. If there is a stay of dispossession it will continue till the disposal of the matter by the High Court.’[10]

?CONCLUSION

?When we talk about being reasonable in law, we mean acting in a way that most people would agree is fair and sensible, considering the situation. It depends on factors like the specific details of the case, people's expectations, and what's considered normal or acceptable in that situation.

Being reasonable in law isn't just about following your gut feelings—it's about following established rules and principles that have been developed over time. These rules provide guidance for advocates, judges, and others connected to the discipline of law to make fair and just decisions.

The concept of reasonable duty of care is paramount which denotes the obligation of legal professionals, such as Advocates, Chartered Accountants and even the Authorized Representatives, appearing before the judicial or quasi judicial authorities, as the case may be, to act with diligence, competence, and ethical conduct in serving their clients' interests.

However, the dichotomy arises when such professionals fail to uphold this duty, resulting in harm or loss to their clients.

The central theme of this article was to discuss the importance of trust and reliance between clients and their representatives through a detailed analysis of the legal precedents and a real-life case study.

The case study of Jayshree Bhardwah[12] sets an example of the impact of professional negligence on clients and the subsequent legal recourse available to them. Thus the judgment discussed above not only holds the principle that clients should not bear the brunt of their representatives' failures, whether deliberate or inadvertent but also strikes a balance between the duty of reasonable care of the professionals to their clients and to what extent the duty of care shall be deemed 'reasonable'.

AUTHORED BY:

STUTI BANSAL,

ADVOCATE, CALCUTTA HIGH COURT

&

PRINCIPAL LITIGATION ASSOCIATE

M/s. BHATTACHARYYAS & ASSOCIATES

Special Mentions: Boudhayan Bhattacharyya , Sougata Banerjee , Stuti Bansal Shwetank Shrutshrava Prasad , Rinki Saha , Tulika Roy Himangshu Ray

[1] PANDURANG DATTATRAYA KHANDEKAR VS BAR COUNCIL OF MAHARASHTRA, BOMBAY AND ORS. [AIR 1984 SC 110]

[2] THIS DERIVES, OF COURSE, FROM THE FAMOUS CASE OF BLYTH V. BIRMINGHAM WATERWORKS, 11 EXCH. 781, 156 ENG. REP. 1047 (EX. 1856). SEE GENERALLY PROSSER, TORTS, § 31 (2D ED. 1955).

[3] HTTPS://SCHOLARSHIP.LAW.VANDERBILT.EDU/CGI/VIEWCONTENT.CGI?ARTICLE=4112&CONTEXT=VLR, LAST VISITED ON MARCH 29, 2024;? VANDERBILT LAW REVIEW, VOLUME 12 ISSUE 3 ISSUE 3 - SYMPOSIUM ON PROFESSIONAL NEGLIGENCE,? ARTICLE 9, THE ATTORNEY’S LIABILITY FOR NEGLIGENCE,? JOHN W. WADE

[4] AIR 2003 SUPREME COURT 308

[5] infra

[6] (2023) 117 GSTR 497 (Cal)(SB)

[7] AIR 1981 SC 1400; 1981 (2) SCC 788

[8] RAFIQ & ANR VS MUNSHILAL & ANR ON 16 APRIL, 1981, supra

[9] supra

[10]? PARA. 3, PG - 1401 (REF. AIR); PARA. 3, PG- 789 (REF. SCC)

[11] supra

[12] supra