Negligence in Legal Profession

The word ‘negligence’ has its roots from the Latin word ‘negligentia’ meaning ‘failing to pick up’. So the general meaning of negligence is being reckless and careless while doing something but the legal meaning of Negligence is the conduct of an individual which fails to conform to a required standard of duty of care. In other words, Negligence is an actionable wrong which consists in the neglect of the ordinary care or skill towards a person to whom the defendant owes a duty of observing ordinary care and skill by which neglect the plaintiff has suffered injury to his person or property.

For more than a century, in England it was held that barristers cannot be sued for breach of professional duty. It was the notion earlier that there is no contractual obligation towards their clients and the fees received by them are considered in the nature of honorarium. In Swinfen v. Chelmsford (Lord), (1860) 5 H&N 890, Pollock C.B. said- “We are all of the opinion that an advocate in the English Bar, accepting a brief in the usual way, undertakes a duty, but does not enter into any contract or promise, express or implied. Cases may indeed, occur where, on an express promise (if he made one) he would be liable in assuming it; but we think a barrister is to be considered not making a contract with his client, but as taking upon himself an office or duty, in the professional discharge of which not merely the client but the court in which the duty is to be performed, and the public at large, have an interest.”

Halsbury’s Laws of England states the law as follows: “If a barrister acts honestly in the discharge of his duty, he is not liable in action by his client for negligence or for want of skill, discretion or diligence in respect of any act done in the conduct of a cause or in setting drafts or in advising. No action is maintainable against a barrister for un-skillfully drawing pleadings. The law requires of counsel nothing but the honest discharge of his duty to the best of his judgment and he means what he does to be for the benefit of his client, he is not responsible to his client for anything he does. The immunity from action is not confined to litigation, but extends to all cases where the relation of counsel and client exists.”

In India, Section 5 of the Legal Practitioners (Fees) Act, 1926 provides that no legal practitioner i.e., advocate, vakil, pleader, mukhtar or revenue agent, who has acted or agreed to act shall, by reason only of being a legal practitioner, be exempt from liability to be sued in respect of any loss or injury due to any negligence in the conduct of his professional duties. In Manjit Kaur v. Deol Bus Service, AIR 1989 P&H 183, plaintiff’s husband died in a road accident, filed an appeal through her counsel for enhanced compensation. The case remained on the daily list for two weeks and then it was dismissed in default because the counsel failed to appear on behalf of the client. The application for re-hearing of the appeal also became time-barred, because the counsel did not communicate with the party anything about the appeal for years. The High Court found the behaviour of the counsel as incompetent and warned him for such lapses in future. He was also directed to return the fees to client and to compensate the party for costs of Rs. 1000, for re-hearing of the appeal.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

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