With the increasing complexities of legal disputes and the enactment of numerous laws, the need for the general population to hire legal professionals is becoming a necessity to navigate through complex legal processes.

Engaging legal professionals not only involves cost but also involves one’s trust and confidence as the client’s properties, rights and interests are now in the hands of these professionals. Therefore, understanding what these professionals do and how they should conduct themselves is crucial in helping clients positively.

The Jabmi Act 2003 provides clear legal rules governing fees for legal counsels (jabmis), which prohibit the use of contingent fees where the fee amount is determined by the outcome of the case. Tthe law mandates that fees must be fixed before the jabmi taking on the case, and cannot be contingent upon the result. Furthermore, jabmi and the client are required to voluntarily execute a legal agreement specifying a reasonable fee for jabmi’s services, which shall apply regardless of the duration of the case. The fees cannot be deducted from or paid through the property that is the subject matter of the case itself.

These provisions are enshrined in the Act with the best intentions of upholding ethical standards and maintaining the nobility of the legal profession.

First, the role of legal counsel as an officer of the court is there to assist the court in bringing the truth in the dispute and fee charges are services provided to the client not on the outcome of the case. The outcome of the case depends on numerous factors including the competency of the lawyer, parties in the dispute, the judge who presides over the case, evidence and witnesses. If the fees are fixed subject to the outcome, the lawyer can resort to unethical behaviours including possible tampering with crucial evidence, buying or manipulating witnesses to prolong cases or even influencing other court officials to influence the outcome.

Second, the lawyers could also influence clients to appeal the cases even if the lawyers know that appealing will have no impact on the decision of the lower court. Further, lawyers will consider every case as a match rather than justice as contingent fees are a form of gambling. Clauses on contingent fees in legal agreements violate the Jabmi Act and Sections 16 and 47 of the Contract Act, as they constitute unlawful considerations, unlawful objects, and a form of wagering agreement.

Jabmi Act also provides provision to protect the jabmi if the client refuses to pay the jabmi for the services. If the client fails to pay the stipulated fees as per the agreement, jabmi has the right to retain possession of any documents or papers related to the case until the fees have been paid in full. However, the jabmi is entitled to receive a proportionate amount of the agreed fees under certain circumstances, such as withdrawing from the case in good faith with the client’s consent and prior leave of the court, being unable to represent the case due to infirmity or disability or withdrawing in the best interest of the client.

Legal profession is considered noble profession. The nobility of the legal profession is “maintained by the adherence and observance of a set of professional norms, ethics, maintain the honour and dignity of the law profession and promote justice through fair dealings with client, opponent, and witness”.

Say no to contingent fees.

Sonam Tshering

Lawyer, Thimphu

Disclaimer: The views expressed in this article are author’s own.