Private practice versus government service

The government seeks to curb its law officers’ appearances for private parties…

The new NDA government has directed its law officers, including the Attorney General, Solicitor General and additional solicitor generals, not to take private legal cases as it amounts to conflict of interest and dilutes the purpose of their appointment to the posts of responsibility.

This became imperative in view of the increasing number of requests from law officers, appointed for cases in the Supreme Court and the high courts, to appear in private cases and also instances of few law officers appearing for the private parties in the past, during the UPA regime.

The law ministry has also in the past censured its legal officers for acting independently without seeking permission. There have been reports of law officers providing legal opinions to other government departments without informing the law ministry. In 2010, the ministry had pulled up its then senior-most law officer in the Delhi High Court for having represented a private party. It is learnt that the oil ministry had then asked the law ministry for his replacement in another case claiming that he took stand against its instructions in the Essar Steel case.

Even the BJP-led Karnataka government was not happy with its counsel appearing in cases against the Gujarat riot-accused (for the National Human Rights Commission) as well as for former telecom minister A Raja in the 2G spectrum case.

Last month, the law ministry reiterated to all 13 of its law officers that they should exhibit “restraint” while seeking permission to appear in private cases. It told them that such requests in the future should only be made for “compelling reasons and in exceptional circumstances” as their primary role is to defend the government in the courts.

“The number of private cases taken up by law officers is so large that it tends to take away a sizeable amount of their time and, in the process, government cases suffer,” law secretary PK Malhotra said while reminding the top law officers of Rule 8(1) of the Law Officers (Condition of Service) Rules, 1987, which states that they cannot “hold briefs in any court for any party except the Government of India and other institutions enumerated therein.”

Legal experts feel that instances of law officers appearing for private parties are not unknown and the government can keep them motivated by allowing them to take 2-3 private matters per month. “The major problem is that the payment is very low. All law officers are senior lawyers and they hardly get anything compared to other senior lawyers appearing in private matters. Secondly, the government does not settle bills in time,” senior lawyer KK Venugopal said, adding that, “I was paid a year after laying down my office.”

According to him, law officers should get a fixed salary and should be paid handsomely per case.

This step should have been taken a long time ago to prevent conflict of interest situations, say experts.

Former Solicitor General Mohan Parasaran said that a government lawyer hardly gets any time for private work. “My 10 years of experience shows that one can’t do justice to his work if one takes private matters. There can’t be any comparison between the private and the government work when it comes to earning potential. The government can’t pay like private parties do. There are always two sides. But then, some sacrifice has to be made. If it is economics, then the judges are worse off,” he said.

Supporting him, former additional solicitor general Vivek Tankha said that similar directions were also issued earlier, only to be breached after sometime. What is new in the last month’s communication is that the government would not like to give any relaxation now, he said.

However, he feels that it is not only the money but the prestige attached to the post which is important. “Holding this position is also a matter of honour and prestige. Somewhere, you have to make some sacrifice. And then, the payments are not that bad. Apart from a fixed honorarium and a stipulated amount per case, a law officer gets paid separately from the state governments and handsomely from central and state PSUs,” he said, adding that getting timely payments, however, still remains a big issue.

Activist lawyer Prashant Bhushan feels that such rare practices are better avoided, otherwise law officers won’t devote enough time on government briefs. “Even law officers charging huge fees from PSUs is not proper. A uniform fee structure should be charged, even from these PSUs and corporations.”

Rule 8 restricts a law officer from holding briefs in any court for any party except the Centre or the state government or any university, government school or college, local authority, public service commission, port trust, port commissioners, government-aided or government-managed hospitals, a government company, any corporation owned or controlled by the state, and any body or institution in which the government has a preponderating interest.

Besides, a law officer cannot “advice any party against the government or a PSU; cannot defend an accused person in a criminal prosecution without the permission of the government; or accept appointment to any office in any company or corporation without the government’s permission.” The officers cannot even leave the headquarters during court vacations without the central government’s permission.

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First published on: 21-11-2014 at 03:55 IST