Your
Advocate
Q:
I am a junior lawyer just striving to build up a career at the Bar and
at the same time make a living for my family. Recently I appeared in
a Special Tribunal case on behalf of its two accused who were previously
known to me. I cross examined the prosecution witnesses and finally
argued the case before Special Tribunal,2 of my district. The accused
were ultimately convicted and sentenced to suffer life imprisonment.
The tadbirkars of the case got seriously dissatisfied with
me and wanted the money back on the ground that I gave them assurance
for acquittal but failed. The accused is in jail now. I told them that
the judgement is wrong and the higher court in appeal would acquit him.
Accordingly my clerk applied for certified copy of the judgement and
after collecting |he same I my{elf wen| to a lawymr of High Co}r| in
Dhaka. The learned senior lawyer rebuked me in front of my clients saying
|hat I had come |o him beyond time fixed for appeal and the right to
appeal is lost for ever. He said he might try a writ but there is no
certainty of relief because it is discretionary. He also demanded much
higher fees for writ. Later I came to know that the senior lawyer told
the client that I had finished the case as I could not take cross-examinations
on right points and also failed to show right decisions of the higher
court. The Clients are now so angry with me that they wanted not only
the money back but also to file a complaint in the Bar Council against
me. Sir, a) I am a lawyer and have the right to represent the clients
in court. Can the client demand the money back? b) Should the senior
lawyer tell the client that I have finished the case? Is it my fault
if the accused are convicted? c) can a case not be out of time? d) can
a junior lawyer not make mistakes? e) what Bar Council has to do if
a complaint is lodged against me? I am desperately in need of your answer.
Sk.Abedur Rahman, Advocate, from E-mail
Your
Advocate: I have gone through your query word for word. The
first reaction that I had is- this is the reason for which Bangladesh
Bar Council introduced Clinical Legal Education Programme roughly 10
years back which now has developed into Bar Voca|ional Course(BVC).
Now I feel the anxiety of our senior lawyers who amid much of adversities
conceived and strove for an institutional training for the junior lawyers
in these days of huge influx in the Bar population. Your questions have
also ser~ed to send a message to the lealers of the Bar |hat they should
be much more cautious about the input of the training course and try
to do everything possible nor making it more and more effective in giving
a lawyer of tomorrow proper orientation, that is, how to 'think like
a lawyer'. I don't know in what batch you have taken the training in
the Bar Council. If you have taken thm training you are supposed to
learn what should be the professional approach particularly of a junior
lawyer. I am sorry to say that you are seriously lacking in professionalism
and has failed to take right approach to a ca{e and to the court and
the clients. In my detection you have committed several wrongs. Firstly,
you cannot receive a brief from your clients with a promise or undertaking
to bring them a relief. Tha| offends against your professional ethics.
And your mistaken approach has now given your clients handle to get
their money back. This is unbecoming of a lawyer. Secondly, you did
take a wrong and inexcusable approach in not advising your clients to
engage a senior lawyer in a case involving complicated questions of
law, facts and higher punishment. Thirdly, you seemed to be oblivious
of the Limitation Act which plays crucial role in pursuing |he case
in the higher forums. The common knowledge of law that is- for filing
an appeal there is a limitation of time didn't bother you or touch your
professional sense in any way. A lawyer practising at the Bar must not
do any act, which would not have been done by a man of ordinary prudence.
This is a kind of soldiering for the rights of the litigants. Professional
common sense must be developed. The senior lawyer was perfectly right
is saying that you had finished the casm. This is a casm of special
limitation prescribed by a special statute. Court does not have power
to condone the delay. So the zight to appeal and all the privileges
which might be available |o the convicts in an appeal are lost for good.
The remedy that the convicts are now left with is very limited and discretionary
and the lawyer will have to do much of extra toil to find a footing
in the narrow corridor of law. So, you can understand the damage you
have done not only to |he client but also to yourself as a professional
lawyer. Fourthly, the Bar council has much to do about it. If a complaint
is lodged it can proceed against you for professional misconduct and
award punishment if the allegations are found proved.
I hope you will
find ansers to all your q}estions in my comments that I have already
made. Accused may be convicted, lawyers may commit mistakes, cases may
run out of time but certainly not in the way things have taken place
in your case. Senior lawyer's comment in presence of the client is not
expected but if any senior flares up in the circumstance he is not to
blame because much heavier damage is done by you than the one done by
his comments. This is much more a case of reflections than of excuses.
Your advocate M. Moazzam Husain is a lawyer of the Supreme
Court of Bangladesh. His professional interests include civil law, criminal
law and constitutional law.
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