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Thursday, January 21, 2016, Magh 8, 1422 BS, Rabius Sani 9, 1437 Hijri


Your Legal Adviser
Published :Thursday, 21 January, 2016,  Time : 12:00 AM  View Count : 23

Dear readers, this week Your legal advisor is Ishrat Hasan, Advocate, The Supreme Court of Bangladesh. She is  Managing
partner of the renowned law firm namely, 'The Law Consultant', Eastern Mansion, 67/9 Pioneer Road, Kakrail, Dhaka, which professionally deals mainly with corporate law, commercial law, family law, employment and labor law, land law, banking law, constitutional law, criminal law, IPR and in conducting litigations before courts of different hierarchies. She can be reached at - cell: 01521515654 e-mail: [email protected]



Query
My younger brother divorced her wife in December 2015 and her wife filed a case under the Nari O Shishu Nirjaton Ain in January 2016. Police arrest my brother the very next day of filing of the case. In her case alleged that her husband used to torture her physically and also demanded dowry from her. Since then brother is in the jail. We engaged a lawyer for my brother. The lawyer moved the bail petition for several times in the court, but failed. In the mean time, some of our relatives advised us to move bail petition in the High Court. But the problem is, the first layer is not giving the papers of the case back. He is saying that he wants to do it by himself. But we don't want him any more to deal with the case. We have paid all the fees of the lawyer. Now, we are in a great difficulty. Can you please advise us what should we do in these circumstances?
Zahidul Islam
Feni

Opinion
Thanks for your query about an convoluted matter. This sounds embarrassing  and painful for a client to recover his necessary documents when his very lawyer refuses to give them back. True it is that you have the right to get your case dealt with by a lawyer of your choice. But that does not mean that once you have engaged a lawyer you can take the brief back at will without showing any reasonable cause, that is, "misconduct" on his part. The words of the query suggest that your lawyer tried to bail several times, but failed nothing more nothing less. If there is no case against your lawyer, other than the one disclosed, you must have been swayed by wrong advice given by your relatives who are seemingly non-lawyers. Advice of the lay people in technical matters very often proves fatal. This failure may be the cause of your sorrows and sufferings, but does not constitute misconduct on the part of a lawyer so as to justify a move for total cut-off from him. He is well within his competence to desire that he would appear in the higher forum, provided that he is a lawyer of that court.
But on the other hand, he does not confer upon him the right to prevent you from engaging a new lawyer in the higher court in that a bail-petition in the High Court Division arising out of a case pending in the lower court. And both are separate case and you have the right to engage a separate lawyer or lawyers.
You can't demand your file back from the original lawyer till he provides NOC which means No Objection Certificate. He remains to be your lawyer in respect of the original case. However, a lawyer has to provide NOC whenever his client demands. But the client has to clear all dues of the lawyer before receiving NOC from the lawyer. If your lawyer refuses to give the NOC even after payment of his legal fees and costs of filing then you may present application before the court to change your lawyer or you may complain in written before the Bar Council for his misconduct. Then the Bar Council will investigate the truth and on the basis of investigation they will take action. Remember, false allegations against a lawyer before the Bar Council would be counted as a crime.
Yours is not a case of taking back the brief from a lawyer, but a simple case of taking his help of another lawyer to present an application for bail before the Hon;ble High Court Division. Here, the   certified copies of the order of rejection of the lower court are required for filing bail application in the High Court Division. Collect all the necessary certified copies and, if you decide not to engage the same lawyer in the High Court Division, approach any other lawyer of your choice for the purpose.
There is no legal or ethical bar for you to try bail for your brother in the higher court through a different lawyer. If you still find your lawyer non-co-operating with you in your new approach his conduct amounts to "misconduct" and you, meaning your brother, acquire legal right to cancel the appointment given to the particular lawyer' as per Order III of the CPC and ask him to return the brief and also make a complaint to the Bangladesh Bar Council asking for an action for violating professional etiquette.









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