'Lawyer can't be prosecuted for wrong advice' :SC

Lawyers cannot be held liable for criminal prosecution if their advice causes pecuniary loss to the client, unless they were part of a conspiracy in the fraudulent transaction, the Supreme Court has ruled.
 The apex court said that professionals like lawyers, doctors and surgeons cannot be expected to give 100 per cent assurance to their clients or patients of success, unless there was a deliberate attempt to defraud the victim.
 A bench of justices P Sathasivam and Ranjan Gogoi passed the ruling dismissing an appeal filed by the CBI challenging a decision of the Andhra Pradesh High Court which quashed a criminal case filed by the agency against K Narayana Rao, panel advocate of public sector Vijaya Bank.
 It was the case of the CBI that Rao along with officials of
the bank and certain others had defrauded the bank to the tune of Rs 1.27 crore in the disbursal of housing loans.

 "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 practising and while undertaking the performance of the task entrusted to him, he would be exercising his skill with reasonable competence," Justice Sathasivam writing the judgement said.
 "The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal," the bench said. 
 The apex court said a lawyer does not tell his client that he shall win the case in all circumstances nor would a physician assure the patient of full recovery in every case.
 "A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100 per cent for the person operated on," the bench said.
 The court said a professional may be held liable for negligence on one of the two findings, viz., either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess.

 "Therefore, the liability against an opining advocate arises only when the lawyer was an active participant in a plan to defraud the bank.
 The apex court said the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both.
 "Even if some acts are proved to have committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy.
 "In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence," Justice Sathasivam said. 
 The apex court, however, said, it is beyond doubt that a lawyer owes an "unremitting loyalty" to the interests of the client and it is the lawyer's responsibility to act in a manner that would best advance the interest of the client.
 "Merely because his opinion may not be acceptable, he cannot be mulcted with the criminal prosecution, particularly, in the absence of tangible evidence that he associated with other conspirators.
 "At the most, he may be liable for gross negligence or professional misconduct if it is established by acceptable evidence and cannot be charged for the offence under Sections 420 (cheating) and 109 (abetment)of IPC along with other conspirators without proper and acceptable link between them," the bench said.
 The apex court while upholding the high court's decision, however, made it clear that if there is a link or evidence to connect Rao with the other conspirators for causing loss to the institution, undoubtedly, the prosecuting authorities are entitled to proceed under criminal prosecution.
 "Such tangible materials are lacking in the case of the respondent herein," the bench added.

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