Legal loopholes in consumer protection
While the issue of liability of legal professionals for negligence and deficiency of services falls within the scope of the Consumer Protection Act, and under judicial scrutiny by the Supreme Court
While the issue of liability of legal professionals for negligence and deficiency of services falls within the scope of the Consumer Protection Act, and under judicial scrutiny by the Supreme Court, it is worthwhile to analyse the parameters and factors for consideration to determine the liability - requiring a breach - a lapse in the use of a reasonable standard of professional care.
At the outset, we need a comprehensive understanding of the implications of lawyers' negligence/inadequate representation/service deficiency and consequential client-loss/harm.
For any liability claim, three elements are factored viz. a) triggering event-cause of action b) evaluating identifiable harm/loss/injury qualifying for compensation c) compensation/payment mechanism.
While client dissatisfaction is very common and every potential loss of a legal claim cannot be a compensable harm and cannot be attributable to service deficiency, it makes sense to understand which unsatisfactory results are avoidable through reasonable care and which ones are not.
Some of the acts or omissions of the lawyers that may constitute deficiency in service as defined under the CPA, 1986 are - failure to apply the law correctly to a client's situation, negligent drafting, default of non-appearance, clumsy documentation, funds misappropriation, breach of confidentiality etc. and the client-complainant must show that he/she would have received the intended benefits but for the alleged/asserted negligence of the lawyer.
However, a failure to choose the best strategic course of action does not necessarily amount to a breach of duty.
Secondly, for evaluation, it is important to recognise what loss/damage caused to the client qualifies for compensation, what unfavourable results could have been avoided through reasonable professional care.
And then ascertain the fault and fix the liability through fact-finding inquiry to establish the necessary causal links of negligence/deficiency in service/misconduct/breach of implied contractual obligation and fiduciary duty against the advocate.
Finally, the compensation based on the loss/injury sustained by the client could be calculated factoring the clients' overall claim value, hourly billable rate, or fees-structure of the lawyer-client engagement, or insurance coverage is a workable alternative for protecting the client interests.
The big question is - whether the client is a consumer and whether the consumer fora would be able to serve the avowed purpose of providing remedies to victims of legal service deficiency, enforcing negligent lawyers to bear the costs and consequences thereof, and deterring further legal negligence, without jeopardising the sanctity and privity of lawyer-client relationship, conflict of interest and public policy etc?
When lawyering is business and nobody is above law, justice demands that legitimate claims be heard by the appropriate forum, because significant harm is happening, and it is going uncompensated.
(The writer is Legal Consultant & Member, Telangana State Consumer Forum, Hyderabad)