Whether arbitrator will be disqualified if he was previously briefed as counsel by law firm of claimant?

A law firm's briefing of counsel in other, unrelated matters is on a very different footing. In our profession it very often happens that on a given day a law firm will brief counsel for one client and on the very next day, or perhaps later that very day, will brief another counsel against the first. At no point in their regular practice do counsel appear 'for' the law firm that briefs them, leaving aside cases where the briefing lawyer or law firm is itself the litigant. In-house counsel or counsel who receive a fee-paid general retainer or salary from a law firm stand on a different footing. We are here concerned with independent counsel, those in the profession who in the course of their daily practice receive briefs from many attorneys, law firms or individual practitioners. This is a remnant of the 'dual system', now abolished, and a central feature of that system, one that continues to this day in practice, is the independence of counsel. They accept briefs from multiple attorneys (often on the same day at the same time in different courts). They are not always briefed at every stage of the case, nor is there any rule that they perform the same functions at every stage: a counsel may lead at one stage, and at another may take second chair to a senior. None of this is backed by statute, but hinges on traditions of long standing. This independence manifests itself in different ways. We have seen counsel withdrawing -- sometimes in court itself -- because their clients give them fresh instructions contrary to previous ones conveyed to court. In Mumbai at least, counsel from the same chambers often oppose each other in court and there is never a doubt raised about their professional independence. We have, too, in this city an acceptance of a junior counsel being briefed against the senior whose chamber he or she has joined. No one sees this as anything but the fiercest independence; indeed, seniors consider it a badge of honour to be opposed (the more vigorously the better) by their own juniors, for there is perhaps no better indicator of a briefing attorney's confidence in the capability, integrity and independence of a junior counsel than to field him against his own senior.

27. Independence, therefore, as used in the statute means nothing more than deciding for oneself. Impartiality is lack of bias: the ability to decide without tilting to one side on considerations other than the merits of the case. Arbitral independence and impartiality is precisely this: to decide 'without fear or favour, affection or ill-will', words familiar to us all.

28. Therefore, counsel having accepted a brief from a particular attorney, advocate-on-record or lawyer for some other client is not per se a disqualification or ineligibility. The disqualification connection must be between the arbitrator-counsel and the litigant. That this is of the essence is obvious from Item 3 of the two schedules -- in a given case, where the law firm or lawyer is itself or himself the client, the arbitrator cannot function as such in an arbitration where that very law firm or lawyer is also engaged, though for some other party; for the arbitrator in question would then have before him a party for whom he is engaged.
IN THE HIGH COURT OF BOMBAY

Notice of Motion (L) No. 453 of 2017 and Arbitration Petition (L) No. 150 of 2017

Decided On: 02.03.2017

 Sheetal Maruti Kurundwade Vs. Metal Power Analytical (I) Pvt. Ltd. and Ors.

Hon'ble Judges/Coram:
G.S. Patel, J.
Citation: 2017(6) MHLJ 642

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Whether advocate automatically cease to be an Advocate if he accepts retainership in law firm even though no order is passed by Bar Council?

Public Service Commission, in our opinion, had no authority to come to the conclusion that the appellant herein had ceased to be an advocate in view of accepting the retainership in a law firm since the Bar Council of West Bengal never took any such decision in respect of the appellant herein under the Advocates Act, 1961. Bar Council is the competent authority to take any decision in respect of an enrolled advocate and not the Public Service Commission. The respondent Public Service Commission Authorities neither asked the appellant herein to furnish any explanation with regard to his engagement with the law firms as an enrolled advocate nor even consulted the Bar Council of West Bengal in order to ascertain the validity of the enrolment of the said appellant as an advocate. The Public Service Commission Authorities exceeded its jurisdiction and authority by coming to the conclusion that the enrolment of the appellant herein as an advocate was not valid on the date of advertisement issued for the West Bengal Judicial Service Examination, 2013 notwithstanding the fact that the enrollment of the appellant as an advocate in the roll of Bar Council of West Bengal was never cancelled and/or even suspended by the Bar Council of West Bengal.

An Advocate can under no circumstances automatically cease to be an Advocate unless specific order is passed by the Bar Council in accordance with law removing and/or suspending the name of the said Advocate from the roll of the concerned Bar Council. In the present case, the appellant-petitioner herein therefore, cannot automatically cease to be an Advocate or even deemed to cease to be an Advocate on the date of the advertisement issued by the Public Service Commission authorities for the West Bengal Judicial Service Examination, 2013 in the absence of any deeming clause.

Kolkata High Court (Appellete Side)

Souvik mukherjee  vs State Of West Bengal on 17 February, 2014

Present:
The Hon'ble Justice Pranab Kumar Chattopadhyay
And
The Hon'ble Justice Samapti Chatterjee
A.S.T. No. 223 of 2013
With
A.S.T.A. 110 of 2013

Citation;AIR 2014 Calcutta 85

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