Latest Judgement

This article has been researched and written by Advocate Aarun Chanda, who practices divorce law in Mumbai and Pune. It is intended solely for academic purposes and should not be construed as legal advice. Readers are encouraged to consult a qualified advocate specializing in divorce cases for professional legal guidance.

There is a particular sound in my chambers that every family law practitioner learns to dread — the soft, apologetic knock of a clerk carrying a fresh brief, followed by the words: “Sir, this matter already has three advocates on record before us.” I remember one such afternoon vividly. A client, let’s call her Mrs. Kapoor, walked in clutching a file so thick it could double as a doorstop, and the very first thing she said was not “help me with my divorce” but “please don’t be the fourth lawyer I fire.”

I laughed, mostly because I didn’t know what else to do. But as I flipped through her file — three vakalatnamas, three sets of pleadings drafted in three distinct handwriting styles, and three different theories of the case — I realised this wasn’t really a joke. It was a symptom of something every matrimonial lawyer eventually confronts: the curious, recurring phenomenon of clients changing advocates midway through a divorce.

Over the years, I have sat on both sides of that particular table — the lawyer being replaced, and once or twice, the lawyer being brought in to clean up after someone else. And I have come to believe that this churn, far from being mere client fickleness, is woven into the emotional and legal fabric of matrimonial litigation itself. To understand why, we have to look at both the human story and the legal scaffolding that permits — and sometimes complicates — this change of guard.

1. THE EMOTIONAL WEATHER OF A DIVORCE CASE

Divorce is unlike almost any other litigation I handle. In a property dispute, the client is angry about money. In a criminal matter, the client is frightened for liberty. But in a matrimonial case, the client is often grieving a marriage, negotiating with wounded pride, managing family pressure from both sides, and simultaneously trying to think clearly about maintenance, custody, and property — all at once, all while heartbroken.

This emotional weather changes constantly, and so, often, does the client’s confidence in their advocate. A client who was calm and conciliatory at the time of filing may become combative six months later after a hostile cross-examination, or vice versa — a client baying for blood at the first consultation may, after a court-mandated mediation session, want a softer, more settlement-oriented lawyer. The advocate who fit the client’s temperament in January may feel entirely wrong by August. This is not disloyalty; it is simply the nature of representing people during the most turbulent chapter of their lives.

Then there are the practical irritants that compound this emotional volatility: delayed hearings that test patience, fee disagreements that fester into resentment, a perceived lack of communication (“my lawyer never returns my calls”), family members and well-wishers who insist their own family lawyer would do a “better job,” and sometimes, quite simply, a change in litigation strategy — from contested divorce to mutual consent, or from a fault-based ground to an irretrievable-breakdown argument — that the original advocate is unwilling or unable to pursue.

2. WHAT THE LAW ACTUALLY SAYS ABOUT CHANGING YOUR ADVOCATE

Here is where the storytelling must pause for a moment of statutory sobriety, because clients rarely realise that changing an advocate is not merely a matter of walking into a new office and signing a fresh cheque. It is governed by procedure.

The starting point is Order III Rule 4 of the Code of Civil Procedure, 1908, which governs the appointment and, more importantly, the continuance and termination of a pleader’s authority to act. Under this provision, once a vakalatnama is filed, the advocate’s appointment continues for all purposes connected with the suit until it is determined — either by the client filing a written intimation to the court that the advocate’s authority is withdrawn, by leave of the court, by the advocate applying to be discharged, or by the death of either party or advocate. In plain English: a client’s right to discharge their advocate is real, but it is not informal. It must be reduced to writing and brought to the notice of the court, precisely so that the record remains clean and the opposing side is not taken by surprise mid-proceeding.

This procedural safeguard exists for good reason. Family litigation is already prone to delay; if advocates could be swapped without any notice to the court, hearings would become an endless game of musical chairs, with every change of counsel producing a fresh request for adjournment “to enable the new advocate to familiarise himself with the matter.” Courts have, quite sensibly, insisted on formality precisely to prevent this from becoming a dilatory tactic.

There is a further, uniquely matrimonial wrinkle here that many clients — and, I confess, some young advocates — overlook. Section 13 of the Family Courts Act, 1984, provides that no party before a Family Court shall be entitled, as of right, to be represented by a legal practitioner. The proviso allows the court, if it considers it necessary in the interest of justice, to grant such assistance. In practice, most Family Courts do permit representation, but the statutory design is a reminder that proceedings before these forums are meant to be conciliatory rather than adversarial in character. When a client changes advocates in the middle of Family Court proceedings, therefore, it is not simply a private contractual matter between lawyer and client — it touches the court’s own supervisory role over how the litigation is conducted, and the incoming advocate must often formally seek the court’s leave to appear.

3. THE ADVOCATE’S SIDE OF THE STORY: WITHDRAWAL, LIEN, AND PROFESSIONAL DUTY

It would be an incomplete narrative — and, frankly, an unfair one — if I told this story only from the client’s chair. Advocates, too, sometimes initiate the parting of ways, and the profession’s own rules govern how gracefully (or otherwise) that exit must be managed.

Rule 15 of the Bar Council of India Rules, framed under Section 49(1)(c) of the Advocates Act, 1961, obliges an advocate not to withdraw from an engagement once undertaken without sufficient cause and without giving reasonable notice to the client. This is a rule I have seen violated more in the breach than the observance by junior colleagues who, frustrated by non-payment of fees or an unreasonable client, simply stop appearing. That is professional misconduct dressed up as inconvenience, and it does the profession no credit.

Equally instructive is the question of what happens to the client’s papers and file once the professional relationship sours. The Supreme Court settled this rather firmly in R.D. Saxena v. Balram Prasad Sharma, (2000) 7 SCC 264, holding that an advocate has no right to retain the client’s files or original documents as a lien for unpaid fees. The Court reasoned that the litigant’s papers are not “goods” of the kind that ordinary commercial lien contemplates, and that withholding them could gravely prejudice the client’s case — a matrimonial litigant, of course, being especially vulnerable if custody or maintenance papers are held hostage over a fee dispute. An advocate’s remedy for unpaid fees lies in a separate claim for recovery, not in holding the client’s divorce petition to ransom.

The courts have also repeatedly emphasised — in various High Court pronouncements on discharge of counsel — that while a client has an almost unqualified right to change advocates at any stage of the proceedings, this right must be exercised through the proper procedural channel, and the outgoing advocate is entitled to be heard, particularly on the question of costs or fees due, before being formally discharged from the record. The relationship between advocate and client, after all, is a fiduciary one, and fiduciary relationships do not simply evaporate; they must be formally and fairly wound up.

4. READING BETWEEN THE FILES: WHY THE PATTERN REPEATS IN DIVORCE CASES SPECIFICALLY

Having practised in this space long enough, I have noticed that matrimonial matters see this churn far more often than commercial or criminal litigation, for reasons that go beyond ordinary dissatisfaction with legal service.

• First, divorce proceedings are unusually long-drawn, often stretching across years through mediation, counselling, contested hearings, and appeals. The longer a case runs, the more opportunities arise for the client’s circumstances, finances, and temperament to change, and with them, their confidence in counsel.
• Second, matrimonial disputes are deeply susceptible to outside influence — parents, siblings, well-meaning friends, and occasionally a new partner — all of whom have opinions about who the “right” lawyer is. I cannot count the number of times a case has changed hands because a client’s brother knew “a very good lawyer” who, upon closer inspection, specialised chiefly in real estate.
• Third, and perhaps most tellingly, strategy in a divorce case is rarely static. A client who begins on a fault-based ground such as cruelty may, after a failed mediation, wish to pivot toward a mutual consent settlement, or vice versa. Not every advocate is equally comfortable litigating both an adversarial contest and a negotiated exit, and clients are, quite rightly, entitled to representation suited to the path they now wish to take.

5. REFLECTIONS FROM THE CHAMBERS

I think often of Mrs. Kapoor, and of the fourth vakalatnama I eventually filed on her behalf. We settled her matter within the year, not because I was a markedly better advocate than the three before me, but because, by the time she reached my chambers, she finally knew what she wanted — a calm, negotiated closure rather than a prolonged war. Her earlier changes of counsel were not evidence of a difficult client; they were the visible record of a woman finding her own clarity, one advocate at a time.

That, I think, is the real lesson buried under all the procedure and precedent. The law’s insistence on formality in Order III Rule 4, the Bar Council’s insistence on responsible withdrawal under Rule 15, the Supreme Court’s insistence in R.D. Saxena that a client’s papers cannot be held hostage — all of it exists to ensure that even amid the messiest, most emotionally fraught litigation a person may ever face, the machinery of justice remains orderly, transparent, and answerable. The rule of law does not merely regulate outcomes; it regulates transitions — the quiet, procedural moments when a litigant chooses to place their trust in someone new.

A divorce may end a marriage, but it need not end a client’s faith in the legal process itself. Every properly filed vakalatnama, every formally recorded discharge, every fee dispute resolved through due process rather than retained files, is a small, unglamorous testament to a legal system that takes seriously even its most human failures — including our clients’ occasional, entirely understandable urge to try, try, and try again until they find the advocate who finally understands their story.

And if, somewhere in a busy family court corridor, a fourth lawyer is being briefed by a client who has already been through three others — take it, as I have learned to, not as an insult to the profession, but as evidence that the profession still gives every litigant the chance to be properly heard.

Seeking expert legal guidance?- Contact The Divorce Law Firm today.