Mr. Diljeet Titus, Advocate v. Mr. Alfred A. Adebare and Ors
Ms. Seema Ahluwalia Jhingan and Ors. v. Titus and Co. and Ors.
2006 (32) PTC 609 (Del)
The present suit deals with bitterness arising amongst legal personnel. Diljeet Titus, the Plaintiff and Alfred A. Adebare, one of the opposing parties to the suit were associates in the firm M/s. Titus & Co. The Plaintiff had been in practice since 1989 and set up M/s Titus & Co., as a sole proprietorship firm in 1997. Prior to his own venture, he was part of M/s. Singhania & Co., along with two of the four members of the opposition to the suit. They left the concern collectively, when the Plaintiff setup M/s. Titus & Co.
While the Plaintiff claimed that the Defendant was an employee, working for remuneration, the same was denied on the grounds that the nature of work was more on the lines of partnership. Their parting being on unpleasant terms was accompanied by the Defendant’s taking away privileged information of the law firm, use of which by anyone but the Plaintiff, could make him liable to his clients. In this regard, Plaintiff filed a suit for injunction apart from criminal complaints, grieving infringement of copyright.
Interim injunction was also claimed against the Defendants, in the event of continuing existence of the data with the Defendant. In response to this, the Defendants filed a counter suit alleging that they were the rightful owners of copyright in what they had created.
Arguments on behalf of the Plaintiff:
• The Defendants were the employees of the Plaintiff, though not in the strict sense of the term. All billing to the clients was in the name of the Plaintiff alone. The Defendants were under the discipline and regime of the Plaintiff and it is under Plaintiff’s guidance and control that the Defendants, using the Plaintiff’s knowledge, resources and investment, developed and created those confidential and vital electronic records.
• Further, the Defendants were under a contract of service of working under the direction, supervisions and control of the Plaintiff as per the normal practice in the legal profession in India.
• The counsel relying on Mr. S.D. Gupta v. Dasuram Murzamull; AIR 1973 SC 48 submitted that where there was no written down partnership contract and no record of terms and conditions of oral partnership, no account for partnership is maintained, an inference cannot be drawn as to the existence of a partnership firm. The parties in the present case are advocates who would like their relationship to be governed by clear stipulation.
• Thus, relying on the principles of Burlington Home Shopping Pvt. Ltd. v. Rajnish Chibber and Anr.; 1995 PTC (15) 278, it was submitted that as per section 17(c) of the Copyright Act, any work which is made in the course of other’s employment under a contract of service, belongs to the employer. Thus, all documents in this case belong to the Plaintiff even if they have made by the Defendants during the course of their employment.
• The documents are slated to be governed strictly by the norms of client-attorney privilege.
• Plaintiff asserted that his associates and advocates were not permitted to disclose confidential client related documents especially in regard of the Bar Council of India Rules. Referring to Section 49(1)(c) of The Advocates Act, 1961, Rule 17 in Section II and Section 126 of the Evidence Act, it was stated that the documents were generated to render services to clients, and hence the Plaintiff being solely entitled to be in possession of the same. He was considered bound by a duty to maintain confidentiality of his clients, and the Defendant and others had committed a breach in this regard.
• Further, according to the principle of damnum sine injuria, where the junior leaves the office of a senior associate some injury is inevitable.
Arguments on behalf of the Defendants:
• Defendants and the Plaintiff stood at par with each other in the firm. They have independently exercised their professional skills and knowledge and were at sole discretion to advise and serve clients without any supervision of that of the Plaintiff.
• Employer-employee relationship between advocates is barred under the Bar Council of Indian Rules Section VII dealing with other employment as per rules 47 and 49. Rule 49 states that there cannot be an employer-employee relationship in case of an advocate as an advocate, cannot be a full-time salaried employee of any person. Thus, the principles applicable to an employer-employee relationship would not apply to the legal profession.
• The relationship between the parties was one of contract for service and not contract of service.
• Further, the use of the Plaintiff’s name was only for the purposes of convenience and the Plaintiff, in fact, was estopped by virtue of section 115 of the Evidence Act from denying the relationship of Defendants as partners since to third parties these defendants were represented as partners.
• The Defendants claim to be the owners of the copyright in what they have created and it is their contention that the creation was independent and the same was so created by advising and counseling the clients and the computer generated data was lying in the computer system of the Plaintiff. Asserting that the documents prepared were pieces of original literary work. In such a scenario, Section 17 (c) was held to be inapplicable.
• The Counsel for the Defendant argued further on the grounds of confidentiality. They stated that this aspect could not be an issue since they held the copyright. In the absence of a ‘master-servant’ relationship, the apprehensions held by the Plaintiff were said to be misconceived notions, and that the attorney-client privilege was enjoyed by all lawyers.
• Also, as per Order 7 Rule 14 of the Code of Civil Procedure 1908, the Plaintiff has failed to produce the documents in the court whose copyright infringement has been alleged.
• There is no documentation placed by the Defendants on record to substantiate any such written arrangement of partnership. This aspect is important as all the parties are advocates and would be expected to define their relationship and responsibility properly and clearly. On the contrary, it is not disputed that the Plaintiff has been running the firm, in his name, is obliged for its profits and losses and taxes. At the stage when the defendants left the association with the plaintiff there was no separation of the assets of the legal firm. Also, it is a fact that the clients were that of the Plaintiff and the billing used to be in the name of the Plaintiff. It is possible that during the course of working the clients may have also developed faith in the Defendants. There is nothing wrong in such a practice. Further, applying the test of ‘integration’; one would find that the Defendants were in fact working for the Plaintiff. There is no doubt that the relationship between the Plaintiff and Defendant is one of contract of service.
• Great importance had to be attached to any breach of trust or confidence. If an advocate permits his associate to assist him, there is an implicit obligation on such an associate to maintain the trust and confidentiality reposed on him. The mere fact that Defendants would have done work for the clients would not give them the right to reproduce the list and take it away.
• Also, Rule 49 of Chapter VII of the bar Council of India Rules would have no application to the principle of an advocate being associated with any other advocate.
• The contention of a database being an original literary work was not questioned in the light of Section 2(o) of the Copyright Act, 1957. Further, with reference to Section 17(c) of the Act, it was stated that the work done by the Defendants for the clients of the Plaintiff would fall in the definition of contract of service. It was further stated that irrespective of this, a breach of trust or confidence had been committed, which could not be ignored in view of Section 16 of the Copyright Act.
• Plaintiff had clearly established a prima facie case in respect of the rights in the material taken away by the Defendants.
• Defendants were not entitled to utilize the agreements, diligence reports, list of clients and other material, which they used or learnt of in course of their relationship with the Plaintiff, rendering them to be confidential per se.
Defendants were restrained from using the documents, data base, client lists etc. of the Plaintiff for their own benefit.
Author: Paazal Arora, ILS Law College, Pune