India has a huge backlog of cases. Cases remain pending for many years. It is not fair on the part of victims who await justice. Many times poor people cannot file their complaint due to lack of resources and due to their incapability to bear expenses of litigation. Contingency lawyering could be a solution if implemented effectively.
The confidence of the public in the legal system is integral for its functioning. Legal redress should be made available to a victim promptly. It is unfair to the injured party to have sustained the injury with little hopes for a resolution. One of the main problems Indian judiciary is facing is the backlog of cases and delay in justice. Indian judiciary requires reforms which will help facilitate its process and deliver justice as quickly as possible. One of these reforms is contingency lawyering. The Bar Council of India needs to take some reformatory measure in order to contribute effectively.
What is Contingency Lawyering?
In contingency lawyering, a lawyer charges contingent fees to his client. Black’s Law Dictionary defines contingent fees as – A fee charged for a lawyer’s services only if the lawsuit is successful or favourably settled out of court… Contingent fees are usually calculated as a percentage of the client’s net worth recovery. They are commonly used in civil litigation to provide assistance to individuals or entities who cannot afford to hire lawyers to vindicate their rights. Contingency fees make it easier for the poor to pursue their civil rights which otherwise require one to be wealthy enough to seek litigation in the first place.
Contingency lawyering in India
Lawyers in India are not allowed to charge contingency fees. Part VI, Chapter II, Section II, Rule 20 of the Standards of Professional Conduct and Etiquette of The Bar Council of India Rules bars any lawyer to charge contingent fees. Rule 20 reads as – An advocate should not stipulate for a fee contingent on the results of litigation or agree to share the proceeds thereof. In the matter of G, A Senior Advocate of Supreme Court (1955) 1 SCR 490, wherein the Supreme Court held that the claim of an advocate based on a share in the subject matter is a professional misconduct. The Supreme Court further emphasized this principle in the case of Sunitha v. State of Telangana & Anr (2017). We cannot stick to the age-old ideologies and rules.
Contingency lawyering in other countries
In the USA contingency fees are standard in personal injury cases. However, some jurisdictions in the United States prohibit contingency fees in criminal cases or a certain type of family cases.
Contingent fees agreement are valid in all provinces of Canada, but with some restrictions on what cases are to be handled on a contingent fee basis.
Contingent fees have been allowed in South Africa since 1997.
Contingent fees are a widespread practice in South Korea. Until 2015, they were allowed in both criminal and civil cases. On 23 July 2015, the Supreme Court of South Korea ruled that contingent fee agreements in criminal cases were void as against public policy.
On 4 November 2008, the Supreme Court of Spain annulled the prohibition on contingent fees. From that year onwards, lawyers ever allowed to get into contingent fee agreements.
Implementing contingency lawyering in India
India has a huge backlog of cases. Cases remain pending for many years. It is not fair on the part of victims who await justice. Many times poor people cannot file their complaint due to lack of resources and due to their incapability to bear expenses of litigation. Contingency lawyering could be a solution if implemented effectively. Since lawyers charge fees based on the percentage of net recovery, clients are not required to pay anything before or during the process. Cases can be settled out of the court or through trial. It necessary to bring judicial reforms with changing times. We cannot stick to the age-old ideologies and rules.
Attorney General KK Venugopal in his speech ‘Roadmap to truly affordable and timely justice’ talked about contingent fees. He said, “there is something known as a contingent fee, where you as a lawyer take complete responsibility from beginning to end, in which event the client does not pay anything except the court fees. 30% would be maximum that a lawyer gets if he gets a money decree… it is for the judge to see that the rest of the amount (70%) is distributed directly to the client…” He also mentioned that this concept would be “abhorrent” to the Bar Council of India as it would be against Rule 20 of the Bar Council Rules. Next Revolution will come from Law – Navneet Chugh
Instead of prohibiting contingent fees, efforts should be taken to taken to regulate it. Contingent fee agreements should have provisions for rules and regulations, its violation, the purview of the agreement. Contingent fee agreements should be in a written format stating scope of representation, advocate fees, jurisdiction, breach, termination and notice. These measures would open door to speedy legal redressal thus broadening the scope of the judiciary and ensuring public interest.
By – Priyanka Chauhan
Government Law College, Mumbai
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Student at Government Law College Mumbai