Wednesday, February 20, 2008

Reforming the legal profession: some ideas

Reforming the legal profession: some ideas

N.R.Madhava Menon


There cannot be meaningful reform of the judiciary without appropriate reform of the legal profession.


The Bar and the Bench are said to be the two wheels of the chariot of justice. They take the credit for achievements in the administration of justice. They should also share the blame equally for the ills. Yet in public discourses on judicial reforms, the changes needed in the legal profession are seldom discussed with the urgency they deserve, apparently under the impression that nothing can be done unless the profession itself wants to change. There seems to be a fear psychosis in the judiciary and the political class when it comes to confronting the Bar which is largely responsible for the major ills of the system, namely delay, cost and corruption. The Transparency International Report of 2007, while projecting the judiciary as the third most corrupt institution in the country, concluded that 77 per cent of corruption in the judicial system has been lawyer-driven.

Several expert committee reports have argued that lawyers contribute significantly to the increase in litigation cost and delay. The government should immediately set up a high power committee to review the Advocates Act and re-write it in the context of the changes needed (some of which were proposed long ago by the Bar Council itself) for better and timely delivery of justice at affordable costs. There cannot be meaningful reform of the judiciary without appropriate reform of the legal profession. And it is too much to expect the profession to reform itself although it has the power and authority to do so.

With unprecedented changes induced by technology and globalisation, all professions are forced to re-think their methods of management and delivery of services. Accountability systems are being made more transparent and participatory with the object of controlling commercialisation and improving the quality of services. Even the code of ethics and methods of disciplining erring members are being reworked across professions.

It is in this context that the Indian legal profession is to be looked at for seeking reforms. There is no clear understanding of the working of the profession because very little data are available on several aspects of the profession and its functioning. The legal profession is said to be a million-strong, which includes approximately 6 lakh to 7 lakh practising in the private sector as litigating lawyers, about a lakh or more working as in-house counsel in the corporate sector, and an equal number involved in the public sector. While the organised profession (Bar Councils and Bar Associations) has little to do with the latter two categories, it is effectively in control of the vast body of practising advocates who operate in the trial and appellate courts as well as in tribunals and regulatory bodies. It is they who strike work, boycott courts, dabble in politics and corrupt the course of administration of justice.

The problem with them are many, not all of their own making. The 80:20 phenomenon operates in the profession, whereby 20 per cent of the lawyers command 80 per cent of paying legal work. The system is like a pyramid where the bottom 40 per cent really has to struggle to make a living with no help from the seniors or the powerful top 20 per cent who have a monopolistic control over available legal work, litigative as well as non-litigative. Added to the plight of these people are their professional inadequacies, including poor legal education, communication and transaction skills and poor infrastructure support to learn and develop themselves.

Because of their numerical strength and lack of appreciation for professional ethics, they are in the forefront of agitational politics and exploitative practices. They decide who will go to the Bar Councils and how they manage the legislative, executive and judicial functions vis-À-vis the profession. Resolutions are sometimes adopted to boycott courts, prohibit practice by foreign lawyers in India, stall the implementation of laws intended to expedite administration of justice, deal with differences with the police and courts, and on organising legal education. They sit in judgment on complaints against other lawyers. With such absolute powers, they are a source of threat to the independence of the subordinate judiciary.

Instances may be a few but they cannot be ignored. Occasional stories in the media of lawyers attacking policemen on duty and judges before whom they practise are ignored as aberrations rather than symptoms of a disease causing the malfunctioning of the system itself. It requires no less than a high power committee of lawyers, judges, and public men with a mandate like that of the Justice S.R. Das Committee appointed in the 1950s to look into the malaise and propose futuristic reforms.

Having been closely associated with legal education and, to some extent, with legal and judicial professions for nearly five decades, I would submit some proposals, not necessarily new, for the consideration of reformist groups:

(a) Legal education should be liberated from the dominant control of the Bar Councils and entrusted to legal academics with freedom to innovate, experiment and compete globally. The National Knowledge Commission has made some recommendations in this regard which deserve attention of the Bar, the judiciary and the government.

(b) There should be compulsory apprenticeship, Bar examination and screening on acceptable parameters before a law graduate, Indian or foreign, can be licensed to practise in Indian courts. Those who want to practise as non-litigating lawyers should have a different roll for enrolment and a separate entry examination, perhaps under a special professional body within the Bar Council.

(c) Given the importance that ADR is assuming in our judicial system, there is a clear need to develop professionals as mediators and arbitrators. They can be non-lawyers as well provided they have the necessary training and are bound by the ethics adopted for the purpose. Once trained mediators and arbitrators are available in adequate numbers, there is need for standardisation and accreditation for which professional agencies have to be set up under the law, perhaps distinct from the Bar Council.

(d) A need is now being felt for a trained cadre of para-legals who can service the work in courts, legal aid agencies, law offices, legal divisions of corporate enterprises and NGOs involved in the delivery of legal services. Some universities impart para-legal education at the end of which diplomas are awarded. Eventually, it may be necessary to standardise and develop this activity.

(e) All the above professional roles which trained persons have to discharge will require constant upgrading of knowledge, skills, attitude and ethics. This is possible only through organised and well-supervised continuing legal education programmes, which are singularly absent in India today. Judges have acknowledged the need for induction and in-service training and are on the job through a network of academies under the National Judicial Academy. Lawyers and prosecutors have nothing in place excepting a few ad hoc attempts by the Bar Council of India Trust towards the end of last century.

(f) After the establishment of World Trade Organisation and India getting actively involved in trade liberalisation, including trade in legal services (under GATS), there is no escape from allowing equal treatment to law persons from other jurisdictions. This can be advantageous to the Indian legal profession which is becoming almost the largest in the world.

(g) In order to address and resolve local problems arising in the administration of justice, there appears to be a need for a joint forum of lawyers, judges and administrators at the district level. The district judiciary and the district Bar Association should have critical decision-making authority to negotiate arrangements and resolve problems independent of the High Courts and the Bar Councils.

(h) There is a case for rewriting the code of ethics for advocates. Advertising rights within certain parameters have to be allowed to ensure better access to specialised legal services for people in need. Contingency fee system now illegally operating in some sectors of legal practice may have to be legalised under certain controls. Multi-disciplinary and multi-professional partnerships may have to be allowed, subject to certain conditions for disciplinary proceedings.

(i) It is important to acknowledge that the age of specialisation has come in the legal services as well. Therefore, the profession should have rules to accredit lawyers based on their specialisation and provide facilities for them to improve their professional competence.

(j) Mechanisms for ensuring compliance with professional discipline are weak and ineffective at present. There should be participation of representatives of other related professions in disciplinary committees. Retired judges should invariably be associated with them. There should be greater transparency in disciplinary proceedings, the result of which should be widely publicised in legal circles.

The prospects of judicial reforms already in various stages of implementation would depend for their success on the seriousness and urgency with which the government and the legal profession bring about the changes proposed.

(Professor (Dr.) N.R. Madhava Menon is former Director of National Law School, National University of Juridical Sciences and National Judicial Academy.)

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