The clauses that cost clients money
A vakalatnama is short, printed, and usually handed across a desk with the page already folded at the signature line. Three clauses deserve a slow read, because each has a financial consequence.
- Authority to compromise. Most forms authorise the advocate to settle on your behalf. Under Order XXIII Rule 3 of the Code of Civil Procedure, 1908 a compromise recorded by the court binds the parties, and a client who later says he never agreed faces an uphill argument where the vakalatnama conferred that power. To keep control, strike the word “compromise” and initial the deletion.
- Authority to engage another advocate. A substitution clause means the person appearing may not be the person you chose. Sometimes necessary in a busy court, but know it before the first hearing.
- Withdrawal and fees. Some forms record that the advocate may seek discharge on non-payment. Legitimate, but not a blank cheque: ask for the fee arrangement in writing, with what is included and what costs extra.
Who signs, and how
Every party on whose behalf the advocate is to act should sign. Where one of several plaintiffs signs, the others may be treated as unrepresented at the first hearing. For a company, partnership or society, the signatory acts in a representative capacity and the board resolution or authorisation should be attached; a defect here is a standard objection at the filing counter.
A thumb impression is valid where the client cannot sign, but the contents must be read over and explained in a language the client understands, and the attestation should record that this was done and by whom. The document does not require notarisation, and paying a notary for it is an unnecessary expense; what it does require is the advocate's acceptance signed with the enrolment number. Do not leave that portion blank.
On the civil side it is filed with the plaint or the first application; on the criminal side it accompanies the memo of appearance. In the Calcutta High Court and in most e-filing systems the signed copy is scanned and uploaded, with the physical copy produced when the registry calls for it — so keep the inked original and never part with your only copy.
Changing your advocate without a fight
Clients often believe they are trapped once a vakalatnama is signed. They are not. The relationship is one of agency and can be terminated; what is required is that the court and the outgoing advocate be told. The usual course is a fresh vakalatnama in favour of the new advocate with a no-objection letter, or, where that is refused, an application to the court seeking permission to change with reasons. Until the court records the change the old advocate remains on the record and keeps receiving notices — which is how clients miss dates after they have mentally moved on.
Two further points. A vakalatnama does not carry the proceedings past the death of the client; the legal representatives must file their own. And one signed for a suit does not extend to the appeal; a fresh one is needed at each stage, which is why appellants are sometimes surprised to find their advocate is not on record in the higher court.
Three questions asked at the signing
Can I limit what my advocate may do? Yes, by striking out specific powers and initialling the deletion, and by recording the limit in the engagement letter. Courts respect a clear limitation and are unimpressed by a later claim that a broad clause was not understood.
Am I bound by what my advocate says in court? For admissions and submissions made on your instructions, yes in substance — that is what representation means. Where he acts outside instructions your remedy lies against him, but the order may still bind you until set aside.
Do I get a copy? Insist on it, and photograph the signed page. In a fee dispute or a complaint, the copy in your hand is the only evidence of what you authorised. If the terms are unclear before you sign, have the draft reviewed first.