Advocates Lien: A Critical Review of the stance in India

Ms. Priyasha Corrie.

*Student, National Law University, Jodhpur. Rajasthan.

Email: priyasha.corrie@gmail.com

A. Introduction

The Halsbury laws of England has expressed the definition of lien as follows-

Lien is in its primary sense a right in one man to retain that which is in his possession

belonging to another until certain demands of the person in possession are satisfied. In

this primary sense it is given by law and not by contract

An advocates lien is thus the right of a lawyer to hold a client's property or money until

payment has been made for legal aid, advice and representation given. This constitutes

one of the remedies of a lawyer to which he/she can resort to when the clients fee

remained unpaid. However this remedy is no longer available to an advocate in India, a

right that is enjoyed under common law as well as other civil law countries.

This paper looks into various aspects in relation to Advocates lien in India and puts forth

arguments in favor of the existence of the right of lien of an advocate. The law in the US,

UK as well as other countries has also been stated in order to understand the International

perspective. The need for review of the stance adopted in India along with the reasoning

has been discussed. The emerging issue of GATS has also been considered which compel

Electronic copy available at: http://ssrn.com/abstract=1316289

India to adopt standards to conform to those of countries with which it is likely to trade

with in terms of legal services.

i. International perspective

i. The stand in UK

The rights of an attorney in India have been held to be the same as the rights of the

solicitor in England, except in so far as the latter have been diminished or increased by

statute1, though now the position has changed in India. An understanding of the common

law would thus put us in good stead in understanding the position in India.

Under common law, there exist three types of lien2

(1) A common law lien on property recovered or preserved by his efforts

(2) A passive or retaining lien;

(3) A statutory lien enforceable by a charging order.

Common law lien

The common law lien is a particular lien and not a general lien and is therefore not

available for the general balance of account between the attorney and his client, but

extends only to the costs of recovering of preserving the property in suit. The right is the

right to ask the court to direct that personal property recovered under a judgment obtained

by his exertions stand as security for his costs of such recovery.3

1
See Tyabji Dayabhai & Co. v. Jetha Deviji & Co, AIR 1927 Bom 542 cited from Damodar v. Morgan &
Co AIR 1934 Cal 341, 343
2
See Damodar v. Morgan & Co AIR 1934 Cal 341, 343
3
Ibid

Electronic copy available at: http://ssrn.com/abstract=1316289

Passive or retaining lien

This right is a right to retain property already in his possession until he is paid costs due

to him in his professional capacity4. This is termed as a general lien. In the context of file

transfers, the lawyer is asserting his or her right to a general retaining lien.5 This

corresponds to Section 1716 of the Indian Contracts Act, 1872.7 The general rule is that

the retaining lien extends to any deed, paper or personal chattel which has come into the

solicitors possession in the course of his employment8 and in his capacity as solicitor

with the clients sanction9 and which is the clients property.10

The following may thus be subject to a retaining lien 11- bill of exchanges, cheques,

policy of insurance, share certificates, application for shares, letters patent, letters of

administration, money, including money in a client account, although only the amount

due to the solicitor, and the maintenance received by a solicitor if not subject to an order

as to its application or bound to be applied, in effect, as trust money; or Documents in a

drawer of which the solicitor is given the key. The lien does not extend to a) a clients

original will; or b) a deed in favour of the solicitor but reserving a life interest and power

4
The Solicitors retaining lien is not different from the liens of other persons but if the exercise of it will
cause damage to the client the property may be ordered to be handed over upon payment into court
Richard v. Platel (1841) 5 Jur 835, as cited in HALSBURYS LAWS OF ENGLAND Vol 44 (1), 4th edn. Para 244
5
See Damodardas Agarwal v. R. Badrilal, AIR 1987 AP 254, 263
6
Section 171- General lien of bankers, factors, wharfinger, attorneys and policy brokers
Bankers, factor, wharfingers, attorneys of a High Court and policy brokers may, in the absence of a contract
to the contrary, retain as a security for a general balance of account, any goods bailed to them; but no other
person have a right retain, as a security for which balance, goods, bailed to them, unless is an express
contract to that effect.
7
Ibid
8
Stevenson v. Blakelock (1813) 1 M & S 535 as cited in HALSBURYS LAWS OF ENGLAND Vol 44 (1), 4th edn. ,
Para 245
9
Gibson v. May (1853) De GM & G 512 as cited in Halsburys laws of England Vol 44 (1), 4th edn. ,Para
245,
10
Sheffield v. Eden (1878) 10 ChD 291,CA as cited in Halsburys laws of England Vol 44 (1), 4th edn. Para
245
11
Solicitors rights, Halsburys laws of England Vol 44 (1), 4th edn. Para 244
of revocation to the client; or c) original court records; or d) documents which did not

come into the solicitors hands in his capacity as solicitor for the person against whom

the lien in claimed or his successors, but as mortgagee, steward of a manor or trustee.

Moreover, where documents are delivered to a solicitor for a particular purpose under a

special agreement which does not make express provision for a lien in favour of the

solicitor, as perhaps the raising of money is paid to the solicitor for a particular purpose

so that he becomes trustee of the money, no lien arises over those documents or that

money unless subsequently left in the solicitors possession for general purposes.

Otherwise the lien extends to the property whatever the occasion of delivery, except that

where a solicitor acts for both mortgagor and mortgagee and the mortgage is redeemed

the solicitor cannot setup a lien on the deeds against the mortgager.12

Statutory lien

A solicitor has by statute a right to apply to the court for a charging order on property

recovered or preserved through his instrumentality in respect of his taxed costs of the

suit, matter or proceeding prosecuted or defended by him.13

The Common law lien and the statutory lien was discussed in the case of Clifford Harris

& Co v. Solland & Ors14 where the Court opinionated that although commonly referred to

as a lien, the solicitor's right, whether under common law or the statute, is not a true lien,

which can only exist in the strict sense where the person claiming the lien has the

property which he claims to be subject to the lien in his possession.. Another aspect

12
Ibid
13
Section 73, Solicitors Act, 1974
14
2005 WL 401734
deliberated upon was that in the case of the solicitor's common law lien over his client's

documents, there is a well established principle that a solicitor who takes alternative

security from his client for his costs may be held to have waived his lien. Prima facie a

solicitor has a lien for his charges upon the papers of his client. This lien may be lost,

released, or waived in the same way as the liens which other persons possess. The main

difference between the case of a solicitor's lien and those other liens is that, where a

solicitor takes any security which is in any degree inconsistent with the retention of a

lien, it is his duty to give express notice to the client if he intends to retain the lien, and

that, should he not do so, his lien will be taken to be abandoned.

The solicitor is entitled to a lien only15

the retainer is terminated, either by the client or by the lawyer for just cause; and

the lawyers accounts for legal services or costs incurred to collect the accounts

remain unpaid.

Thus if a lawyer terminates a retainer, he is not entitled to a lien. However, if the client

terminates the retainer, the lawyer would have the right of lien provided that he was not

terminated for misconduct.

b. The Stand in US

A general or retaining lien also exists in the United States which is a possessory lien on

legal documents and on monies that come into the attorneys hand.16 The retaining lien's

15
Solicitors Lien, Available at rc.lsuc.on.ca/pdf/pmg/solicitor.pdf as visited on 5th September 2007
16
7 Am Jur 2d, Attorneys at Law, Sections 333-339
primary use is to compel a client to pay through embarrassment or worry. 17 The

majorities of states recognize the existence of attorney retaining liens and conclude that

the retaining lien is not per se unethical. In some states, there is an express statutory

provision for a general or retaining lien that supersedes the common law lien.18 Similar

riders as discussed above exist such as the lien should not be prejudicial to the interests of

the client and that when a person is terminated for a just cause, he is not entitled to the

right. Where no statute provides for a lien, an attorney secures a lien on a clients cause

of action solely by the virtue of the agreement between the parties. The lien need not be

specifically created but rather be implied where the contract indicates that the attorney is

to look to the judgment for payment of fees.19

C. The law in Canada

Canada, being a country following the common law tradition, has similar laws with that

of England. This is provided for in subsection 34(1) of the Solicitors Act, 1990 akin to

Section 73, Solicitors Act, 1974 of England.

The interesting part is the certain restrictions to this right and safeguards provided for.

Rule 2.09 of the Rules of Professional Conduct for lawyers, provides that where upon the

discharge or withdrawal of the lawyer, the question of a right of lien for unpaid fees and

disbursements arises, the lawyer should have due regard to the effect of its enforcement

upon the client's position. The lawyer's right of lien will be restricted in situations where
17
Zach Elsner , Rethinking Attorney Liens: Why Washington Attorneys are forced into "involuntary" pro
bono, 27 SEATTLE U. L. REV. 827, 832 (2004)
18
Helen Hierschbiel, Difficult Paradigm: Are lien rights absolute?, Oregon State Bar Bulletin (May 2006),
Available at http://www.osbar.org/publications/bulletin/06may/barcounsel.html as visited on 22nd
September 2007
19
Trimble v. Steinfeldt (2nd Dist) 178 Cal App 3d 646
the enforcement of the lien will prejudice materially the client's position in any

uncompleted matter (commentary to subrule 2.09(9)).

Now, one of the problems borne by the client is on discharge of the lawyer, a need arises

for the successor lawyer to consult the case papers and files. In these cases, the successor

lawyer generally does not have a remedy unless he same is prejudicial to the client. One

of the sections that can be resorted to it Section 13 of the Solicitors Act which enables

clients to bring an application for the delivering up of deeds, documents and papers

either alone or in conjunction with an application for the assessment of their lawyers

accounts. The court may direct payment of any amount found to be due, and enforce

payment according to the practice of the court in which the reference for assessment of

the lawyers bill is made. Another praiseworthy provision is in the form of subrule

2.09(10) of the Rules of Professional Conduct, which allows for the successor lawyer to

persuade the client to settle his accounts with the former lawyer.

In an interesting case, the purpose of lien was explained. It is often a mechanism intended

to prevent a client from lawyer shopping after running up an account with a prior

lawyer. Consequently, the lien mechanism should only be available in circumstances

where the client not only initiated the lawyer shopping process voluntarily, but also

unjustifiably.20

II. Evolution of the law in India

20
Metrin Mechanical Contractors Ltd. v. Big H. Construction Inc., [2001] O.J. No. 1319 (Ont. S.C.J.) as
mentioned in Solicitors Lien, Available at rc.lsuc.on.ca/pdf/pmg/solicitor.pdf as visited on 5th September
2007
The ground as to why there is no clarity as regards the existence of a lien is due to faulty

and unclear provisions in the Act. Eminent legal luminaries have pointed out that Its

provisions are defective, incomplete and inaccurately worded. The Act was neither exact

nor subtle and its language was often far from being lucid. What appears to have

happened is that during the process of revision and elaboration of the oriental draft by the

Legislative Department in India, a section here and there was borrowed from the draft

Civil Code of New York, which many legal luminaries have felt that it has not been

drafted well.21 The discussion of the same is however beyond the scope of the paper.

Advocate and attorney are synonymous terms

Firstly, the question as to whether the right of lien under Section 171 of the Indian

Contracts Act, 1872 which mentions Attorneys lien extends to Advocates or not has

been clarified. In the case of P. Krishnamachariar v. The Official Assignee of Madras22,

the Court had held hat the lien is exclusively applicable to Attorneys and solicitors not to

advocates. However since then the position has changed. In pursuance of this question, it

should be noted that the Advocates Act, 1961 had originally saved the dual system, i.e.

Advocates and attorneys, prevailing in the Bombay and Calcutta High Courts on their

original sides.23 It was left to the two High Courts to continue the system or not. These

provisions were deleted with effect from 1st January, 1977. The result is that, as a matter

of law, Attorneys are no longer recognized as a separate class of lawyers. However, since

the system prevailed for a long period in these two towns, it continues there still as a

21
PROF M.P. JAIN, OUTLINES OF INDIAN LEGAL AND CONSTITUTIONAL HISTORY, (Wadhwa, Nagpur, 6th Edition,
2006)p. 475
22
AIR 1932 Mad 256
23
S.31 of the Act. The High Courts of Bombay and Calcutta were authorized to admit Attorneys and
exercise over them power of removal and suspension from practice for reasonable cause.
matter of practice.24 The Act recognizes only one set of practitioners i.e. Advocates. The

same question arose in the case of Lalchand Ramchand v. Pyare Dasrath Chamar and

Anr25 where the Court assumed for the purposes of the case that advocates fell under the

ambit of Attorneys with respect to Section 171 of the Indian Contracts Act, 1872.

Thus for all practical purposes, there is no difference between an attorney, solicitor and

an advocate. To make the same clear, a solicitor is one who is permitted to conduct

litigation in court but not to plead cases in open court. An advocate is a general term for a

person who gives legal device and aid and who conducts suits in court. In fact under

English Law, an advocate can practice in Courts whereas a solicitor cannot. An attorney

is a member of the legal profession who represents a client in court when pleading or

defending a case.

Does an advocate have a lien over a clients file?

Prior to the R.D. Saxena26 case, the stance adopted by Courts in relation to whether an

advocate has a lien or not over his clients files, was varied. The rule at common law that

a solicitor is entitled to a lien for his costs on property recovered or preserved by his

exertion had always been applied by Courts in India27 in earlier cases.

One of the earliest cases is the case of Tyabji Dayabhai & Co. v. Jetha Devji & Co.28 ,

which put forth that a Court can declare that an attorney has a lien on money in Court,

24
PROF M.P. JAIN, OUTLINES OF INDIAN LEGAL AND CONSTITUTIONAL HISTORY, (Wadhwa, Nagpur, 6th Edition,
2006) p. 474
25
AIR 1971 MP 245
26
AIR 2000 SC 3049
27
Rajendar Lal v. Ram Krishna Gupta, AIR 1952 Him Pra 11, 14
28
AIR 1927 Bom 542
which is a common law lien. The mere fact of there being a fund in Court is sufficient to

give notice to the third party of the possibility of a solicitor being entitled to a lien for his

costs. However the same could not be described as a charge as under the Solicitors Act

in England.

An attorney has also been held to have a lien upon the proceeds of such judgment and

is entitled to have its proceeds pass through his hands when he has by his labour and

money obtained a judgment or his client.29

The nest case under scrutiny is Damodar v. Morgan &Co.30. In this case the Court

clarified that an attorney is only entitled to a particular lien in respect of fees due to him

for that matter and cannot have a general lien for monies due to him though he has the

right on papers and document. Whether he gets the money or not, the lien to be paid out

of those funds is to be confined to the costs incurred in respect of those funds. Besides

Section 171 dos not have the effect of depriving attorneys of the passive or retaining lien

which they possessed prior to the passing of the Contract Act.

In Narayandas, Sundarlal v. Narayandas Harbhagat31 ,it was held that an attorney

has lien over its clients papers but when he discharges himself, he is bound to give

inspection and even production to the new solicitor, engaged by the client. If a solicitor

discharges him he is not, according to English Law entitled to lien and the same applies

in India32 He has also to give delivery without prejudice to the lien held by him, but this

29
Cullianjee v. Raghowjee, ILR 30 Bom 27
30
AIR 1934 Cal 341
31
AIR 1932 Bom 363
32
See Damodardas Agarwal v. R. Badrilal, AIR 1987 AP 254,265; See also Ismail v. Richard Butler,
[1996] 2 All ER 50; Atool Chandra v. Shosee Bhusan (1904) 6 Cal WN 215, Re Mc Corkindale (1880) ILR
6 Cal 1
does not apply when the client discharges him. The Court further explained that where a

solicitor takes a case, he is bound to prosecute or defend the claim whether his client is

rich or poor. He could, before his accepting the clients case, have protected himself by

getting his client to deposit sufficient funds for the prosecution of his clients matter. He

cannot in such a case, refuse to hand over papers to a new solicitor. Thus the

propositions stated in this case are similar to the position in England with respect to the

right of lien on discharge by the client or by the advocate himself. However, the

researchers opinion is that collection of an advance will still not suffice to secure his

interests. It is generally the situation that advances are not given to a service provider

even if given, it might not be sufficient to fulfill the amount claimed. Besides, in a

country like India, people are hesitant to give advances until they are sure of results or the

capability of the lawyer.

In another case of A.K. Bijili Sahib v. Dadhamia Bhalambai33, the aspect of

professional misconduct was broached. It was held that a pleader who retains the papers

of his client because his fees were not paid in full does not act wrongly as to commit

misconduct. The reason was not stated but the Court explained that when an advocate

acts in accordance with law (At that time the Common Law was applied as well), it

would not amount to misconduct.

In the case of Lalchand Ramchand v. Pyare Dasrath Chamar and Anr34, the Court held

that an advocate has no lien under Section 171 over documents since the same is

mitigated by a contract to the contrary. The Court put forth that when a document, which

is wholly or partly foundation of a suit, is delivered to an Advocate, who is engaged for

33
A1R 1936 Mad 48
34
AIR 1971 MP 245
filing the suit and prosecuting it, the necessary inference is that the Advocate is to file the

document along with the plaint or at the first hearing of the suit. Since such a document is

meant to be produced in Court at the earliest opportunity, exercise of right of lien over it,

as conferred by Section 171, will be excluded by an implied contract to the contrary.

Now this seems to be a very interesting argument. But the flaw that lies in it is that the

documents are not necessarily meant to be filed in the Court. There are various other

purposes of the documents. Besides, it is only the copies that are filed and the originals

lie with the advocate. Just because the documents are filed in the Court, it in no way

creates an implied contract to the contrary.

Subsequently, in the case of Damodardas Agarwal v. R. Badrilal35, it was decided

whether an advocate obtains possession of the money which is the fruit of his exertion, or

whether it is still in deposit in Court, in either case, his lien or right to be paid out of those

funds is confined to the costs incurred in respect of those funds, subject only to this that

he has the ordinary rights of set-off, which one creditor has against another. However in

this case the Court opinionated that Section 171 applies only to solicitors and not to other

practitioners to whom, the common law lien would apply.

The problem with the cases was that none of them came with a clear cut proposition and

there was too much of variance to come to a comprehensible and cogent conclusion.

Nevertheless the dust has settled with the case of R.D.Saxena v. Balram Prasad holding

that advocates do not have the right of lien over case files.

35
AIR 1987 AP 264
 III. The R.D. Saxena Case

The reasons as to why lien has not been held to be valid in respect to case files, which

the researcher seeks to negate, are as follows:

1. One of the reason adopted by Justice Thomas was that files containing copies

of the records (perhaps some original documents also) cannot be equated with

the goods referred to in section 171. The word goods mentioned in

Section 171 of the Indian Contract Act, 1872 is to be understood in the sense

in which the word is defined in the Sales of goods Act, 1930 under section

2(7)36. This is because Chapter-VII of the Indian Contract Act, 1872

comprising Sections 76 to 123, had been wholly replaced by the Sales of

Goods Act, 1930. This definition has also been held to require the necessary

ingredient of marketability, which in the Courts opinion is not present in

case files. As per the definition of Bailment in Section 148 37 of the Indian

Contract Act, 1872, there is neither delivery of goods nor any contract that

they shall be returned or disposed of.

2. Secondly, the Court amplified that every person has a right to choose his

lawyer under Art. 22(1) of the Constitution and it is the lawyers legal and

moral imperative to return the files in order to supplement that right.

Withholding the files restricts that right.

36
Goods- "every kind of movable property other than actionable claims and money; and includes stock and
shares, growing crops, grass, and things attached to, or forming part of the land which are agreed to be
severed before sale or under the contract of sale.
37
148. "Bailment", "bailor" and "bailee" defined -A "bailment" is the delivery of goods by one person to
another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or
otherwise disposed of according to the direction of the person delivering them. The person delivering the
goods is called the "bailor". The person to whom they are delivered is called the "bailee".
 3. The Court also felt that Rules 2838 and 2939 of the Bar Council Rules could be

resorted to by the advocates and no mention of a lien is there in the Rules.

The advocate may also resort to legal remedies for unpaid fee or

remuneration. The Court further said that the dispute regarding fees is a lis to

be decided in an appropriate proceeding in the Court.

4. Lastly, the Court laid a great emphasis on the aspect of professional

misconduct which arises due to withholding the files from the client. The

Court has amplified that it is open to an advocate when he takes up the case to

assure himself whether his client is a person of substance and after taking up

the case, it is his duty to proceed with due diligence and honesty whether his

client is poor or rich. It will be really dangerous if a solicitor can be heard to

say in the middle of a case that he refuses to act any further for his client

unless he is paid all the costs incurred by him and at the same time object to

give the papers over to another solicitor. This would undermine the trust that a

person has for the profession.

IV. A critical review of the R.D. Saxena case

38
28. After the termination of the proceeding, the advocate shall be at liberty to appropriate towards the
settled fee due to him, any sum remaining unexpended out of the amount paid or sent to him for expenses
or any amount that has come into his hands in that proceeding.
39
29. Where the fee has been left unsettled, the advocate shall be entitled to deduct, out of any moneys of
the client remaining in his hands, at the termination of the proceeding for which he had been engaged, the
fee payable under the rules of the Court, in force for the time being, or by then settled and the balance, if
any, shall be refunded to the client.
 The researcher disagrees with the view put forth in the R.D. Saxena case. The reasons

are discussed below.

A. Case files can be classified as goods

Section 2(7)40 of the Sale of Goods Act, 1930 provides the definition to the term Goods

to mean every kind of moveable property other than actionable claims and money .The

word goods is of very general and quite indefinite import, and primarily derives its

meaning from the context in which it is used.41 An attorneys lien has always been used in

the context of case brief and papers apart from other articles like documents, deeds etc.

This becomes evident on perusing cases on this topic in the United States, U.K. and the

world over. Additionally, India also follows the common law tradition and this entails

that lien include case files too since Section 171 does not whittle away the common law

as regards lien.42

40
Section 2(7) of the Sale of Goods Act ,1930 reads Goods means every type of movable property other
than actionable claims, and money ;and includes stick and shares ,growing crops ,grass and things attached
or forming part of the land which are agreed to be severed before sale or under contract of sale
41
The Noordam (No. 2) [1920] AC 904, 908-9, Sunrise Enterprises v. Govt. of NCT 2000 (10) SCC 420 as
cited in POLLOCK AND MULLA, THE SALE OF GOODS ACT (Justice K. Ramamoorthy ed., Butterworths, New
Delhi, 5th edition, 2001)p.39
42
Damodardas Agarwal v. R. Badrilal, AIR 1987 AP 254,264
The scope of the term has been expanding over recent judicial decisions to include

water43, oil44, gas45, sale of decrees46, software47, computer disks48, animals49, dead

bodies50, organs51 from a live donor and blood52 and severed timber53. It becomes apparent

that goods is of such a wide import that case briefs also falls under the purview of this

category since it is capable of being bought and sold.

The intention of the legislature is also important to note in this regard. A statute is an

edict of the legislature and the conventional way of interpreting or construction of a

statute is to seek the intention of its maker. 54 A statute is to be construed according to the

intent of them that make it55 and the duty of judicature is to act upon the true intention

of the legislature- the mens or sententia legis.56 The Supreme Court of India has referred

to the cardinal principal of construction57 as combining both literal and purposeful

43
Ferens v. OBrien (1883) 11 QBD 21 as cited in POLLOCK AND MULLA, THE SALE OF GOODS ACT (Justice K.
Ramamoorthy ed., Butterworths, New Delhi, 5th edition, 2001)p.37
44
Longhurst v. Guildgord Godalmung [1963] A.C 265 as cited in POLLOCK AND MULLA, THE SALE OF GOODS
ACT (Justice K. Ramamoorthy ed., Butterworths, New Delhi, 5th edition, 2001)p.37
45
CST v. M.P Electricty Board AIR 1970 SC 732 as cited in POLLOCK AND MULLA, THE SALE OF GOODS ACT
(Justice K. Ramamoorthy ed., Butterworths, New Delhi, 5th edition, 2001)p.37
46
Vithaldas v. Jagjivan (1939) 41 BOM LR 33 as cited in POLLOCK AND MULLA, THE SALE OF GOODS ACT
(Justice K. Ramamoorthy ed., Butterworths, New Delhi, 5th edition, 2001)p.39
47
St. Albans City & District Council v. International Computers Ltd. (1996) 4 All ER 481 C.A as cited in
POLLOCK AND MULLA, THE SALE OF GOODS ACT (Justice K. Ramamoorthy ed., Butterworths, New Delhi, 5th
edition, 2001)p.36
48
Advent Systems v. Unisys Corpn (1991) 825 F 2d 670 as cited in POLLOCK AND MULLA, THE SALE OF GOODS
ACT (Justice K. Ramamoorthy ed., Butterworths, New Delhi, 5th edition, 2001)p.36
49
Gopal Krishna Pillai v. KM Mani, AIR 1984 SC 216 as cited in POLLOCK AND MULLA, THE SALE OF GOODS
ACT (Justice K. Ramamoorthy ed., Butterworths, New Delhi, 5th edition, 2001)p.39
50
POLLOCK AND MULLA, THE SALE OF GOODS ACT (Justice K. Ramamoorthy ed., Butterworths, New Delhi, 5th
edition, 2001)p.38
51
POLLOCK AND MULLA, THE SALE OF GOODS ACT (Justice K. Ramamoorthy ed., Butterworths, New Delhi, 5th
edition, 2001)p.38
52
Belle Bonfils Memorial Blood Bank v. Hansen (1978) 579 P 2d 1158 as cited in POLLOCK AND MULLA, THE
SALE OF GOODS ACT (Justice K. Ramamoorthy ed., Butterworths, New Delhi, 5th edition, 2001)p.38
53
State of M.P v. Orient Paper Mills (1977) 2 SCC 86 as cited in POLLOCK AND MULLA, THE SALE OF GOODS
ACT (Justice K. Ramamoorthy ed., Butterworths, New Delhi, 5th edition, 2001)p.35
54
G.P. SINGH, THE INTERPRETATION OF STATUTES (Wadhwa & Co. , Nagpur, 10th edition,2006) p.2
55
Prithi Pal Singh v. Union of India, AIR 1982 SC 1413, 1419; Maunsell v. Olins 1 All ER 16, p.19
56
SALMOND: Jurisprudence, 11th Edition , p. 152. As cited in G.P. SINGH, THE INTERPRETATION OF STATUTES
(Wadhwa & Co. , Nagpur, 10th edition,2006) p.3.
57
Ameer Trading Corporation Ltd v. Shapoorj Data Processing Ltd., AIR 2004 SC 355,360
approaches. The intention of the legislature with respect to the term lien in the context

of Attorney has to be to include case files. The Indian Contract Act, 1872 was framed

by the British and the principles of common law would have been taken into

consideration at that point of time. As already stated looking at the English cases, it

becomes clear that the lien intended would have been to include case files, the possession

of which ordinarily lies with an advocate and over which he could exercise a lien. The

purpose of an attorneys lien also has been to secure the interests of an unpaid attorney

and to prevent lawyer shopping to the extent that the attorneys interests is harmed.

An effect of the judgment is that an advocate does not have lien over the case files but he

has lien over deeds, cheques etc. This stems from the judgment of Sethi J. This seems to

be contradictory since these documents generally form a part of a case file and the

instances of documents like deeds, bills of exchange ending up in the hands of an

advocate in the capacity of an advocate as a from of security is very rare. Moreover, the

argument that has been used for case briefs that the client might need the same also holds

true for these documents and thus there is a contradiction on this count. The intention of

the legislature could thus not have been restricted in nature.

Now, Section 14858 of the Indian Contract Act, 1872 has two requirements 1) delivery of

goods 2) any contract that they shall be returned or disposed of. In the case of Attorneys

lien, there is delivery of goods in that the lawyer is conferred with the possession in order

to perform his duty as an attorney by representing the clients in a suit. As soon as the
58
148. "Bailment", "bailor" and "bailee" defined -A "bailment" is the delivery of goods by one person to
another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or
otherwise disposed of according to the direction of the person delivering them. The person delivering the
goods is called the "bailor". The person to whom they are delivered is called the "bailee".
purpose is accomplished, the files will be returned or otherwise disposed of according to

the direction of the person delivering them i.e. the client. Thus a contract of bailment is

also present in this transaction between the advocate and the client.

B. The right of lien is the best solution for remitting a lawyer

The argument that advocate can institute a suit for his unpaid fee proves impractical in

that suing a client is liable to damage the reputation of the advocate. Who wants to be

known as the attorney who sues their clients? Instead of suing a client for fees, the

attorney may assert a lien for attorneys fees.59

There is no express provision that provides for lien over litigation files. Now just because

Rules 2860 and 2961 of the Bar Council of India Rules do not provide for an advocates

lien and that these clauses merely provide for deducting the money of the client at the

hand of the advocate, the same does not prevent the application of other sections from

other Acts which provide an indication of the existence of an advocates lien. Besides, a

situation could arise where the attorney had no such monies with him and this aspect has

not been accounted for by the Bar Council. It is here Section 171 comes to the rescue.

C. Right of lien does not restrict art. 22(1)

59
Zach Elsner , Rethinking Attorney Liens: Why Washington Attorneys are forced into "involuntary" pro
bono, 27 SEATTLE U. L. REV. 827, 828
60
28. After the termination of the proceeding, the advocate shall be at liberty to appropriate towards the
settled fee due to him, any sum remaining unexpended out of the amount paid or sent to him for expenses
or any amount that has come into his hands in that proceeding.
61
29. Where the fee has been left unsettled, the advocate shall be entitled to deduct, out of any moneys of
the client remaining in his hands, at the termination of the proceeding for which he had been engaged, the
fee payable under the rules of the Court, in force for the time being, or by then settled and the balance, if
any, shall be refunded to the client.
The court in this case held that there was violation of Art 22(1) 62. This argument is

erroneous because the advocate has retained the goods to only get his unpaid fee from the

client and does not prevent the client from employing another lawyer.

The researcher accepts that there are no proper provisions in relation to advocates lien

and certain restrictions will have to be imported with the right by the legislature. The

advocate will have to take the interests of the client into account if the same is to be

harmed. This is discussed in the chapter on suggestions.

C. Does withholding the files from the client amount to professional

misconduct?

There is no dispute as to the proposition that law is a noble profession and that it is of

utmost importance to foster the trust of the public in the judiciary. Thus it is imperative

that instances of professional misconduct are minimized and a stringent stand is taken

against the same.

Chapter V of the Advocates Act 1961 contains provisions for dealing with the conduct of

Advocates. The world "misconduct" is not defined in the Act but the punishment for

misconduct is put forth in Section 3563.

62
22. Protection against arrest and detention in certain cases. (1) No person who is arrested shall be
detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he
be denied the right to consult, and to be defended by, a legal practitioner of his choice.
63
35. Punishment of advocates for misconduct.
(1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any
advocate its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its
disciplinary committee.[(1A) The State Bar Council may, either of its own motion or on application made
to it by any person interested, withdraw a proceeding pending before its disciplinary committee mid direct
the inquiry to be made by any other disciplinary committee of that State Bar Council;](2) The disciplinary
However it is hard to conceive that exercising a right of lien would amount to

misconduct. Why is it that this right is exercised? This is due to the default of the client in

not remitting the lawyer. Retaining the case files by the advocate as security against the

payment of the fees can in no way amount to misconduct and is merely a safeguard

adopted by the advocate. Imagine a situation where the advocate remains unpaid and the

right of lien is also taken away from him. The clients propensity would be to turn

complacent and he would take longer time than required to fulfill his obligations of

remitting the advocate. This would be highly prejudicial to the interests of the advocate

who instead of availing his right, has to file a suit for receiving remuneration which

would in turn result in further expenses for the advocate. It must be borne in mind that the

advocate has performed his duty of putting his efforts into the preparation of the case

files and the arguments and he should be remunerated for his time and effort. In the case

of Groom v Cheesewright64 , Kekewich J stated 'it is only common justice that when a

solicitor has expended his brains and time and resources in working for a client, he

should be paid out for the use of his industry and skill'. In Re Born, Farwell J said it

would be ' monstrous' if the solicitors did not have a lien 'as the company would never

have recovered the money without their exertions' and that it was clear that ' justice calls

committee of a State Council, shall fix a date for the hearing of the case and shall cause a notice thereof to
be given to the advocate concerned and to the Advocate General of the State.(3) The disciplinary
committee of a State Bar Council after giving the advocate concerned and the Advocate-General an
opportunity of being heard, may make any of the following orders, namely: - -(a) Dismiss the complaint or,
where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be
filed;(b) Reprimand the advocate;(c). Suspend the advocate from practice for such period as it may deemed
fit;(d) Remove the name of the advocate from the State roll of advocates. (4) Where an advocate is
suspended from practice under clause(c) of subsection (3) he shall, during the period of suspension, be
debarred from practicing in any court or before any authority or person in India.(5) Where any notice is
issued to the Advocate-General under subsection (2), the Advocate-General may appear before the
disciplinary committee of the State Bar Council either in person or through any advocate appearing on his
behalf.
64
[1895] 1 Ch 730
for such a lien'.65 In fact, the striking down of this right amounts to spurring clients not to

pay the advocate since the institution of a separate suit is bound to take time. Advocates

who have just started practicing and who generally suffer from insufficient funds will

bear the brunt of this excessively rigorous provision.

The main basis on which it is claimed that there should be no right of lien over client files

is that in certain cases the successor lawyer would need to use the files and thus an

advocates lien could prove disastrous for the continuance of the suit. No doubt, it is

accepted that the client engages a lawyer for personal reasons and is at liberty to leave

him also, for the same reasons. He is under no obligation to give reasons for withdrawing

his brief from his lawyer.66 But apart from exercising this right, there is a corresponding

duty to remit the lawyer. However, the researcher does concede that this right should

have certain restrictions attached with it.

One of the restriction that should be applied to this right should be in line with the

commentary to Rule 2.09 of the Rules of Professional Conduct of Canada which puts up

that a lawyers right to enforce the lien on client documents may be restricted if to do so

would prejudice the client. In determining whether to permit a lawyer to enforce his or

her lien, the Courts look to client interests. The interests of the client must be given great

weight.67 The lawyer must assess the prejudice to the client, particularly in uncompleted

matters. If the prejudice to the client is material, then the lawyer should take steps to

ensure the clients interests are not compromised. Where client interests can be preserved
65
See Clifford Harris & Co v. Solland & Ors, 2005 WL 401734
66
State of U.P. v. U.P. State Officers Association, AIR 1994 SC 1654, 1661
67
Appleton v. Hawes (1990), 47 C.P.C. (2d) 151 (Gen. Div.), additional reasons at 2 W.D.C.P. (2d) 154. As
cited in Solicitors Lien, Available at rc.lsuc.on.ca/pdf/pmg/solicitor.pdf as visited on 5th September 2007
by allowing access to the file, courts have upheld the lien, subject to the clients right to

inspect the documents at the lawyers office. This way the interests of the client are also

preserved.68

Another practice that should be codified is that when a former lawyer is exercising his

lien, the successor lawyer and the counsel should be allowed access to the files and

decides what documents are needed for the continuance of the clients case. Thus the lien

is exercised on one hand and on the other these encumbrances would compel a client to

pay the lawyer instead of going through the hassles.

Apart from this, there are certain precautions that have to be exercised by the Advocate in

order to ensure that he is remunerated so that he does not have to resort to exercising his

lien. The steps that he could take are to try his best to acquire a retainer in advance

(though as mentioned earlier the same rarely happens). Obtaining alternative security or

guarantee from the client about the payment of money would also put the advocate in

good stead. He could also bill frequently and maintain a proper record of the same. These

measures would prevent the lawyer from the need to exercise the right of lien.

D. Advocate as an agent

The researcher also feels that Section 217 and Section 221 of the Indian Contract Act,

1872 could be resorted to in case of an advocates lien. The relationship between a client

and an attorney or pleader is that of principal and agent.69

68
Solicitors Lien, Available at rc.lsuc.on.ca/pdf/pmg/solicitor.pdf as visited on 5th September 2007
69
Matthews v. Munster (1887) 20 QBD 141, as per Lord Esther, 142; See generally Radha Mohan Lal v.
Rajasthan High Court, AIR 2003 SC 1467, Rengadurai v. Gopalan AIR 1979 SC 281
 221. Agent's lien on principal's property - In the absence of any contract to the

contrary, an agent is entitled to retain goods, papers, and other property,

whether movable or immovable of the principal received by him, until the amount

due to himself for commission, disbursements and services in respect of the same

has been paid or accounted for to him.

The right of the agents lien on the principals property is a particular lien, and is

restricted to the goods in respect of which the commission was earned, disbursement

made or services rendered. The agent has no lien over property where it is entrusted to

him for a special purpose which is inconsistent with the lien claimed. 70 The lien extends

to only to the retention of the property till his dues are paid. The lien is lost when the

agent parts with the possession or where the goods are lost beyond the control of the

agent.71 All the various aspects in relation to Section 221 should apply to advocate as an

agent too.

Section 217 of the Act, which defines the agents general right to retain principals

money also extends to advocates but that lien is confined to the costs incurred in a

particular case only and is not a general lien as under this section.72

V. Recent trend- GATS

70
POLLOCK AND MULLA, INDIAN CONTRACT AND SPECIFIC RELIEF ACTS (Nilima Bhadbade ed.,Butterworths, Delhi,
12th edn., 2001) p. 2273
71
Kishun Das v. Ganesh Ram AIR 1950 Pat 481, 483
72
Damodardas Agarwal v. R. Badrilal, AIR 1987 AP 254, 263
A recent phenomenon has been the GATS which if signed by India is likely to change the

face of legal services in India and the world. The General Agreement on Trade in

Services (GATS), negotiated during the Uruguay Round of multilateral negotiations, is a

multilateral, comprehensive framework of rules governing trade in services.73 Legal

Service has been classified as a professional service under the category of Business

services as per the World Trade Organization's Classification list of Services Sector

(W/120). Legal services refer to legal advisory and representation services, legal or

juridical procedures, and the drawing up of legal instruments or documentation.

India enjoys a strong position in respect of legal services in that English is a widely

spoken language and also follows the Common Law tradition. Legal education in India is

also gradually catching up with the high standards of Western Countries. Thus it has the

necessary expertise and knowledge base to compete at the international level though there

we are backward in certain areas especially infrastructure. Nevertheless the ramification

of opening up the legal sector is significant in terms of job creation and boosting the

domestic economy.

Thus it is imperative that no stones must be left unturned in liberalization of trade in

services. All Governmental measures affecting or restricting international trade must

eventually have to be eliminated. In the legal service context of India the rules and

regulations of the Bar Council of India, established under the Advocates Act, 1961, will

73
A Consultation Paper of legal services under GATS, Available at
http://www.commerce.nic.in/trade/consultation-paper-legal-services-GATS.pdf as visited on 1st October
2007
surely be included.74 Moreover, there is also a phenomenon of the unification as far as

International economic relations are concerned. Many members have made amendments

in their laws to accommodate the international trend. This is also as a result of the

pressure of Globalization due to which a Transnational Commercial Law is emerging.

This has facilitated transformation of national lawyers into global service providers.75

These serve as important reasons for India to provide for advocates lien apart from a

host of other changes.

Additionally, many member countries viz US, EC, Australia, Singapore, Japan, China,

Switzerland, New Zealand and Brazil have requested India for taking commitment in

Legal Services. These requests have also been reflected in the process of plulilaretal

requests which are mostly for Foreign Legal Consultants in only corporate and

international law.76 Since solicitors lien on case files of the client have been recognized

in most of the abovementioned countries as well as other countries of the world, Indian

Law shall have to amend its provisions accordingly.

VI. Suggestions

It is high time that the law in relation to advocates lien in India undergoes a change. The

law prevalent in the country, the existence of this right in most of the countries and the

emerging issues makes it evident that it is a right crucial to securing the interests of legal

practitioners in recovering their fees.

74
Rajiv Dutta, World Trade Organisation and Legal Services: The Indian Scenario, Available at
http://www.insolindia.com/shimlaPDFs/worldTradeOrg.pdf as visited on 1st October 2007
75
Ibid
76
Supra Note 75
One of the most important changes that need to be carried out is that the rights and

obligations of the Advocates should be codified in unambiguous terms. Thus a new

legislation or section(s) should be incorporated in the Advocates Act, 1961 to provide

for an advocates lien to the likes of the right that exists in England in unequivocal terms.

Thus an advocate should be held to have a right of lien over the clients litigation files or

documents provided it does prejudice the client.

The restrictions to this right should also be provided for. In the case of Lucky-Goldstar

International, Inc. v. International Manufacturing Sales Co.77, certain laudatory

guidelines were put forth in relation to attorneys lien which are summarized below-

1. An attorney should consider the following factors before asserting a retaining lien

on the former client's files:

(1) the financial situation of the client, (2) the sophistication of the client in dealing with

lawyers, (3) whether the fee is reasonable, (4) whether the client clearly understood and

agreed to pay the amount now owing, (5) whether imposition of the retaining lien would

prejudice the important rights or interests of the client or of other parties, (6) whether

failure to impose the lien would result in fraud or gross imposition by the client, and (7)

whether there are less stringent means by which the matter can be resolved or by which

the amount owing can be secured.

2. The burden of proof of proving that the lien harms the clients interest should lie

with the client.

3. Besides, the lien should not be exerted in cases where the files are required for

criminal defense or asserting fundamental rights.

77
636 F.Supp 1059 (DC N.Ill. 1986)
Certain other restrictions to the right could also be imported into the statutory provision

in order to cater to the need of maintaining the dignity of the profession and safeguard of

the interests of the client. These are that the client could be given access to the documents

when he or she requires certain information mentioned in the documents. He/she could be

allowed to take copies of the same under certain circumstances. No lien should exist if

the advocate withdraws from the case for no good reason. The legislature should specify

those documents or paper on which lien cannot be exercised. Besides, negotiations

between the former lawyer and the successor lawyer should occur if the latter requires the

case files or documents for the pursuance of the case. Here again copies of the same can

be given to the lawyer, provided it does not act prejudicial to the right of lien enjoyed by

the former lawyer. All these riders should be codified.

VII. Conclusion

On both the counts of interpretation of law and rationality, an advocate should be allowed

to have a lien over his/her clients file subject to reasonable restrictions. In light of the

recent phenomenon of the opening of the legal services of India under GATS as well,

there is a need to review the stance in India in relation to Advocates lien.