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.
