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November 23, 2003 

Your Advocate

This week your advocate is M. Moazzam Husain of the Supreme Court of Bangladesh. His professional interests include civil
law, criminal law and constitutional law.

Q: My younger brother divorced her wife in December 2003 and her wife filed a case under the Nari O Shishu Nirjaton Ain in January 2003. Police arrest my brother the very next day of filing of the case. In her case alleged that her husband used to torture her physically and also demanded dowry form her. Since the my brother is in the jail. We engaged a lawyer for my brother. The lawyer moved bail petition for several time in the court, but failed. In the mean time, some of our relatives advised us to move bail petition in the High Court. But the problem is, the first lawyer is not giving the papers of the case back. He is saying that he wants to do it by himself. But we don't want him any more to deal with the case. We have paid all the fees of the lawyer. Now, we are in a great difficulty. Can you please advice us what should we do in this circumstances?
Abul Kashem,
Mirpur, Dhaka

Your Advocate: Your whole concern , as it appears from a plain reading of the query, is that you want to get your brother released on bail. You have meanwhile tried for bail several times through a lawyer but failed. Now upon advice of some of your relatives you have decided to move the Hon'ble High Court Division for bail of your brother. In the circumstances you want back the file from the lawyer once for all. The lawyer is found to be unwilling to return your file and wanted to do the needful in the High Court Division all by himself. You are not satisfied and want to start things afresh by a new lawyer. The refusal of the lawyer has made you aggrieved and you want a way out.

True it is that you have the right to get your case dealt with by a lawyer of your choice. But that should not mean that once you have engaged a lawyer you can take the brief back at will without showing any reasonable cause, that is, "misconduct" on his part. The words of the query suggest that your lawyer tried for bail several times but failed, nothing more nothing less. This failure may be the cause of your sorrows and sufferings but does not constitute misconduct on the part of a lawyer so as to justify a move for total cut-off from him. He is well within his competence to desire that he would appear in the higher forum, provided that he is a lawyer of that court. But on the other hand the mere fact that your original lawyer is a lawyer of the High Court Division as well does not confer upon him the right to prevent you from engaging a new lawyer in the higher court in that a bail-petition in the High Court Division arising out of a case pending in the lower court is a separate case and you have the right to engage a separate lawyer and do your things independent of the original lawyer. In that event also you can not demand your file back from the original lawyer. He remains to be your lawyer in respect of the original case. If there is no case against your lawyer, other that the one disclosed, you must have been swayed by wrong advice given by your relatives who are seemingly non-lawyers. Advice of the lay people in technical matters very often proves fatal.

Yours is not a case of taking back the brief from a lawyer but a simple case of taking his help in procuring certified copies of the papers required for filing bail petition in the High Court Division. Collect all the necessary certified copies and, if you decide not to engage the same lawyer in the High Court Division, approach any other lawyer of your choice for the purpose. There is no legal or ethical bar for you to try bail for your brother in the higher court through a different lawyer. If you still find your lawyer non-co-operating with you in your new approach his conduct amounts to "misconduct" and you, meaning your brother, acquire legal right to cancel the appointment given to the particular lawyer as per Order III of the CPC and ask him to return the brief and also make a complaint to the Bangladesh Bar Council asking for an action for violating professional etiquette.