Can I change my advocate without his no objection certificate (NOC)?
Answer: Usually, when you want to change your advocate, you may need the consent or “no-objection” from the existing advocate for engaging a new advocate in his place. However, if he refuses to give the “no-objection”, you may approach the court (where the case is pending) for permission to change your advocate, which is generally granted by the court, subject generally to your paying the (due or remaining) professional fee to the existing advocate if the advocate insists.
Firstly, let me point out that you have a right to appoint your own advocate. In criminal cases, this right is much stronger than in civil cases. In a criminal case where a person has been arrested, he has been given a fundamental right to appoint an advocate of his choice. It is pertinent to point out that a fundamental right guaranteed under the Constitution cannot be taken away by other laws and supersedes all other laws. In this regard, clause (1) of Article 22 of the Constitution is reproduced as under:
“22. Protection against arrest and detention in certain cases.—(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.”
Likewise, Section 303 of the Criminal Procedure Code gives a statutory right to have an advocate of your choice:
“303. Right of person against whom proceedings are instituted to be defended.— Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice.”
In civil cases also, as per Order 3 Rule 4 of the Civil Procedure Code, you have the right to appoint an advocate of your choice and such appointment continues till the court permits it to be terminated on the request of the client or the advocate, and the relevant provision is reproduced as under:
“Order 3 Rule 4. Appointment of pleader
4. Appointment of pleader.—(1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorised by or under a power-of-attorney to make such appointment.
(2) Every such appointment shall be filed in Court and shall, for the purposes of sub-rule (1), be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client.”
It is also noteworthy that various high courts and the Supreme Court have made their own separate rules in this regard. However, most of these rules are similar. The rules made by a high court are applicable also on the lower courts within its jurisdiction.
For example, the relevant rules under the Supreme Court Rules, 2013, for change of advocate-on-record are reproduced as under:
“15. No person having an advocate-on-record shall file a vakalatnama authorizing another advocate-on-record to act for him in the same case save with the consent of the former advocate-on-record or by leave of the Judge in Chambers, unless the former advocate-on-record is dead, or is unable by reason of infirmity of mind or body to continue to act.
16. Where a party changes his advocate-on-record, the new advocate-on-record shall give notice of the change to all other parties appearing.
17. No advocate-on-record, may, without the leave of the Court, withdraw from the conduct of any case by reason only of the non-payment of fees by his client.
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19. No person having an advocate-on-record, shall be heard in person save by special leave of the Court.
20. No advocate-on-record shall authorise any person whatsoever except another advocate-on-record, to act for him in any case.”
The high court rules are generally similar in nature, though the language may differ slightly. One may have to refer to the rules of a particular high court to be fully sure of the exact position under its rules.
Thus, you may notice that usually no-objection or consent is needed from the existing advocate for changing the advocate. However, it can also be done with the leave (i.e., permission) of the court, which is generally granted if the existing advocate refuses or neglects to give his consent or no-objection. As mentioned above, in a criminal case, the right to have an advocate of one’s choice has been placed on a much higher pedestal of being a fundamental right.