If you are stuck in such a situation, here is what to do.

Mr. Sameer was involved in a property dispute in the city of Ratnagiri that had been ongoing for nearly five years. A few months ago, the trial court passed a judgment in his favor. This decision was made because the opposing party, Mr. Verma, and his legal counsel repeatedly failed to appear before the court commissioner for the cross-examination of witnesses, despite being given multiple opportunities. Consequently, their right to cross-examine was forfeited, and the case was decided in Mr. Sameer’s favor.

Upon learning of the order, Mr. Verma appointed a new lawyer and filed an appeal, requesting one final chance to contest the case. They argued that their previous lawyer had failed to inform them about the court proceedings. The judge showed leniency and granted their appeal, but with a condition: Mr. Verma had to pay a cost of ₹50,000 to Mr. Sameer for the significant waste of time and resources.

On the next hearing date, when the opposing party paid the amount in court, Mr. Sameer’s lawyer, Advocate Akash, collected the money directly. Mr. Sameer didn’t object at that moment, assuming the lawyer would hand it over after the proceedings. However, when he approached Advocate Akash about the money after the hearing, the lawyer dismissed his query, stating that costs awarded in such matters typically go to the lawyer as an unstated rule. Mr. Sameer was shocked and argued that the court had ordered the costs to be paid to him, and he had always paid his lawyer’s fees for every appearance. Advocate Akash refused to discuss the matter further.

Distressed by this, Mr. Sameer is now confused about his next steps. He feels that his lawyer has unethically withheld money that rightfully belongs to him, especially after he has diligently paid all professional fees.

Advice in such cases

If you find yourself in a situation where your lawyer has kept court-ordered costs intended for you, it is crucial to act methodically and assert your rights. Here are the steps you should consider:

• Formal Communication: Your first step should be to communicate with your lawyer formally. Send a registered letter or an email clearly stating the facts and requesting the transfer of the court-ordered cost amount. This creates a written record of your request.
• Review Your Agreement: Carefully examine the ‘Vakalatnama’ and any fee agreement you signed with your lawyer. Usually, these documents do not entitle the lawyer to keep costs awarded to the client. Unless there is an explicit clause stating otherwise, the money is legally yours.
• Seek a Second Opinion: Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think. A different, unbiased lawyer can provide clarity on your rights and the professional conduct expected of your current lawyer.
• File a Formal Complaint: If the lawyer refuses to return the money, you can file a complaint for professional misconduct with the Disciplinary Committee of the State Bar Council where the lawyer is enrolled.

Applicable Sections of Law

This situation involves rules of professional ethics and potentially criminal law. The primary regulations are:

• The Advocates Act, 1961: This Act governs the legal profession in India. Section 35 of the Act empowers the State Bar Council to take disciplinary action against advocates for professional misconduct. Misappropriating a client’s funds is a grave form of professional misconduct.
• Bar Council of India Rules: These rules detail the standards of professional conduct and etiquette. Specifically, Rules 25 to 27 mandate that an advocate must keep accounts of the client’s money and must not misuse or convert it for their own use. The money must be returned to the client upon request.
• Bharatiya Nyaya Sanhita, 2023 (BNS): If the lawyer’s actions amount to criminal intent, it could be considered a Criminal Breach of Trust. Section 316 of the BNS deals with criminal breach of trust by persons entrusted with property, including agents and attorneys. This is a serious criminal offense.

If you are the complainant

As the person filing a complaint against the lawyer, you need to be systematic.

• Gather All Evidence: Collect all relevant documents, including the court order awarding the costs, receipts of fees you paid to the lawyer, your bank statements, and any written communication (emails, letters) with the lawyer regarding the issue.
• Draft a Clear Complaint: Write a detailed complaint outlining the sequence of events chronologically. Clearly state the facts, the amount misappropriated, and your attempts to resolve the issue directly with the lawyer.
• Consult with Lawyer: Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think. An independent lawyer can help you draft the complaint correctly and guide you through the process of filing it with the Bar Council.
• File with the Bar Council: Submit your complaint along with supporting documents to the State Bar Council. The council will initiate disciplinary proceedings against the advocate if they find a prima facie case.

If you are the victim

Realizing your legal representative has acted unethically can be distressing. Here is how to approach the situation as a victim:

• Remain Calm and Objective: Avoid emotional confrontations. Your strength lies in a calm, fact-based approach. Document everything immediately, including the date, time, and content of the conversation where your lawyer refused to return the money.
• Understand Your Rights: The money awarded by the court as “costs” is meant to compensate you for the litigation expenses and harassment you endured. It is your money. A lawyer can only claim it if you have a pre-existing agreement (preferably written) to that effect.
• Consult with Lawyer: Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think. A new lawyer can represent your interests against the previous lawyer.
• Consider Changing Your Lawyer: Given the breach of trust, it is often advisable to change your lawyer for the ongoing case. You can request a “No Objection Certificate” (NOC) from your current lawyer or, if they refuse, apply to the court to discharge them from your case.

How the police behave in such cases

Approaching the police can be an option, but it has its own challenges. Police may initially be hesitant to register a First Information Report (FIR) against a lawyer for such an issue. They often perceive it as a civil dispute or a matter of professional misconduct best handled by the Bar Council. They might advise you to approach the Bar Council first. However, under Section 173 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the police are bound to register an FIR if the information discloses a cognizable offense, such as a criminal breach of trust under Section 316 of the BNS. Having a lawyer accompany you to the police station can often ensure that your complaint is taken seriously and registered correctly.

FAQs people normally have

What evidence is required?

To build a strong case against the lawyer, you will need solid evidence. Key pieces of evidence include:

• The certified copy of the court order that explicitly states the cost is to be paid to you (the plaintiff/defendant).
• Proof of your fee payments to the lawyer (receipts, bank transfer details). This shows you have fulfilled your financial obligations.
• The fee agreement or ‘Vakalatnama’. The absence of any clause allowing the lawyer to keep costs will strengthen your case.
• Any written communication (emails, text messages, letters) where you have demanded the money from the lawyer and their response.
• A detailed affidavit from you stating the facts of the matter.

How long will the investigation take?

The timeline for resolution can vary significantly. A complaint filed with the State Bar Council’s Disciplinary Committee can take several months to a few years to be decided, depending on their workload and the complexity of the case. If you file a criminal complaint, the police investigation and subsequent court trial will follow the standard criminal procedure timeline, which is also typically a lengthy process in India.

Advocate Sudhir Rao, Supreme Court of India