Donning two hats at once?!

A power of attorney, also known as a letter of attorney, is a formal authorization to represent or act on behalf of someone in private, commercial, or legal matters. The scope of the powers vested with a person after attaining a power of attorney was discussed in the latest judgment of Anil Kumar and Anr (Petitioner) v. Amit (Respondent) by the Delhi High Court on 17th November, 2021. The present dispute was a land related matter which involved various parties; however, the decision of the court with regards to a power of attorney holder is the highlight of the case. Mr. Amarjeet Singh Sahani (hereby referred to as “Mr. Sahani”), was acting as the Petitioner’s power of attorney holder and had validated the plaint which was to be submitted to the Court, on behalf of the Petitioner. Mr. Sahani was also representing the petitioner as his advocate in the current matter. It was made evident by the Court that advocates acting as both power of attorney holders for their clients (thus acting as the Client itself) and advocates in the issue are in violation of the Advocates Act of 1961. Any advocate representing a client may only perform one role: that is, an advocate in the proceedings. He or she cannot operate as a power of attorney holder, check pleadings, submit applications or other papers, or give testimony on his or her client’s behalf. The courts also ordered that all the Trial Courts must ensure that this component is strictly adhered to. Several court rulings have clarified this legal situation such as;

In Baker Oil Tools (India) Pvt. Ltd. & Ors. v. Baker Hughes Ltd. & Ors., 2011 (47) PTC 296 (Del), the Court held:

“Thus as is manifest from the said rule, it would be a professional misconduct if a lawyer were to don two hats at the same time. However not only that, the partnership firms have a hurdle for acting in the said two capacities even under The Partnership Act, as every partner in a partnership firm is an agent of another and if one were to be acting as an advocate for a client, the rest would also be in the same capacity by virtue of agency and the same would be the situation in case of an advocate acting as a client. However, it cannot be forgotten by any who has ever been graced with the honor of wearing the robe that the lawyer is first an officer of the court and his prime duty is to assist the court in the administration of justice. Law is not a trade and briefs no merchandise and so the avarice of commercial gains should not malign this profession. Hence there can be no divergent view on the legal proposition that an Advocate cannot act in the dual capacity, that of a constituted attorney and an advocate.” 

As a result, because of the above mentioned explanation, the Court directed Mr. Sahani to continue to possess the power of attorney of the petitioner and dissolve himself from the position of counsel for the petitioner, as holding both the positions may result to professional misconduct