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Thursday, October 11, 2012


Can a legal practitioner be held  liable for a legal opinion provided by him? In a matter CBI charge sheeted a legal practitioner and a panel advocate for the Vijaya Bank, who was arrayed as Accused No.6. The duty of the panel advocate was to verify the documents and to give legal opinion. The allegation against him was that he gave a false legal opinion in respect of 10 housing loans. HELD no primafacie case against the practicing lawyer was concerned.

The Hon’ble Supreme Court of India in Central Bureau of Investigation, Hyderabad Vs K Narayana Rao17 observed:

In the banking sector in particular, rendering of legal opinion for granting of loans has become an important component of an advocate’s work. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skills.

A lawyer does not tell his client that he shall win the case in all circumstances. A surgeon cannot guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while understanding the performance of the task entrusted to him, he would be exercising his skill with reasonable competence. This is what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of the two findings, viz., (1) either he was not possessed of the requisite skill which he professed to have possessed, or, (2) he did not exercise, with reasonable competence in the given case, the skill which he did possess.

In Jacob Mathew Vs State of Punjab & Anr.17a the court observed, to determine whether the person charged has been negligent or not, he has to be judged like an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices.

In Pandurang Dattatraya Khandekar Vs Bar Council of Maharashtra & Ors.17b the court laid, that there is a world of difference between the giving of improper legal advice and the giving of wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of a legal practitioner in the exercise of his profession does not amount to professional misconduct.

Therefore the Supreme Court held that the liability against an opining advocate arises only when the lawyer was an active participant in a plan to defraud the Bank.

Prepared by: S. Hemanth
Advocate at Hemanth & Associates