Legal remedies for professional negligence of lawyers
Seeking remedies for professional negligence is a relatively less explored area in Bangladesh. While there is significant public dissatisfaction (possibly the most visible in cases of gross negligence by doctors) about the professional care that people receive from various professionals, it does not appear that there is any proportionate number of court cases filed to seek remedies for professional negligence. In conjecture, lack of awareness about the duties of professionals, slow pace of court proceedings, chance of potentially inadequate compensation (possibly attributable to some extent, to the absence of professional negligence insurance), too much emphasis on destiny and de-emphasis on human responsibility for human actions, and so on could be the potential reasons for this paucity. Whatever that may be, the exploration of the factors contributing to this trend of agitating relatively few professional negligence cases is beyond this write-up.
Following the trend of lack of legal claims against professionals for professional negligence, filing suits seeking remedies for professional negligence by lawyers is probably very rare. And generally, in the case of a lawyer's professional liabilities, the focus has been on the Bangladesh Legal Practitioner's and Bar Council Order, 1972 and Canons of Professional Conduct and Etiquette. However, the High Court Division (HCD) of the Supreme Court in M/S. Islamia Automatic Rice Mill Ltd v Bangladesh Shilpa Rin Sangstha & Ors (2003) 23 BLD (HCD) 139 has addressed the issue.
In this case, the petitioner company approached the HCD for drawing a contempt proceeding against Bangladesh Shilpa Rin Sangstha (BSRS) and an advocate working for BSRS. The petitioner had defaulted on loans disbursed by BSRS and Agrani Bank. There were separate legal proceedings for recovering those loans under The Bangladesh Shilpa Rin Sangstha Order, 1972 and money suit under the Code of Civil Procedure, 1908 (Money Loan Court Act not being in existence at the time) and also writ petition filed by the petitioner company for clinging on to its property mortgaged as security for the loan. The essential claim of the petitioner, relevant for this write-up, is based on the handing over of machinery of the company in pursuance of a public auction. The petitioner argued that during the pendency of the writ petition, this action of BSRS, as per the legal opinion of its legal adviser, was contemptuous. Since there was no stay order by the HCD, in the writ petition, the petitioner's contempt proceeding was liable to be doomed. The HCD, in this case, not only rejected the petition but also imposed on the petitioner the burden of paying a 'cautionary cost' of Tk. 25,000 for a frivolous claim impleading a senior lawyer which too is probably a relatively rare thing in Bangladesh.
In the course of dismissing the petitioner's claim, the HCD also took the occasion to delve into the professional liability of Advocates in Bangladesh for professional negligence. Referring to a string of English cases, the HCD held that a lawyer is immune from an action in negligence so far as the matter pertains to actual advocacy in the Court or related with a litigation. However, it also held that when a matter relates to giving a legal opinion or doing other paperwork not connected with the litigation, lawyers can be liable for negligence. The HCD observed that a lawyer 'owes a duty of care to his client. So in discharging his professional duties as a lawyer he must be careful and must not be careless though not necessarily he must be right.' (Para 16) It also held that 'the lawyers of this country are under the obligation to act reasonably and carefully in discharging their professional duties except so far it relates to actual advocacy in a Court of law otherwise he will be liable to his client either in negligence for breach of contract or in tort.' (para 18)
From the judgement, it would be evident that the petitioner, in this case, sought to press a contempt petition and did not invoke the claim of professional negligence of the lawyer. In other words, the issue of professional negligence of lawyers was not a matter in issue. Thus, the findings of the HCD would appear to be in obiter and this does not appear to be binding in future cases. But by touching an issue which is very scarcely addressed in our legal discourse, it would seem this obiter may prove to be important in future.
For an affected person, agitating a professional negligence claim against a lawyer in the court instead of the tribunal to be constituted under the Bangladesh Legal Practitioner's and Bar Council Order, 1972 would be much more important for several reasons. The foremost one would be that the emphasis of the Bar Council's Order and the Cannon is mainly on professional misconduct and not necessarily on professional negligence. The Tribunal is a professional disciplinary body mainly tasked with the duty of maintaining the professional standard and thus, cannot be the best forum for seeking any remedy for professional negligence. And it is also not trite that the tribunal would consist of the lawyers i.e. the peers of a lawyer against whom a remedy for professional negligence is sought. Thus, it is possible that in years to come, this area of law may be explored more by the future victims of professional negligence by lawyers willing to take up their case in the court of law.
The writer is an Associate Professor at Department of Law, North South University.