The tentacles of the "pseudo-lawyers" have driven the bar to the wall, claims advocate and partner Elizabeth Seshadri (pictured). Is a bar exam enough to cure the setting rot or do we need a test that reaches far more deeply?
It is necessary for us to define the Bar and what our Bar's values should be before we devise methods to regulate entry into it.
Good bar, bad barThe tag 'learned profession' was applied to three professions traditionally believed to require advanced learning and high principles – medicine, theology and law. All three required the fraternity to be distinguishable by a distinct dress – to the common man the misconduct of one was seen as the misconduct of the entire profession.
Even today the media reports "lawyer held for running extortion ring" or "lawyer found in brothel" – the man's job may have nothing to do with his criminal conduct. But herein lies the difference between us and the common man – once we are given the license to wear the black robe, traditionally, society places greater expectations on us. They expect us to be wise. They expect us to uphold the Rule of law. Society expected our profession to 'watch out for them' as the shepherd watches over his sheep.
Today we are at a decision making point – we must decide today what we are moving towards. Do we want to regain for ourselves our image of being a 'pater familias'? Or do we want to change expectations of the people and say "we cannot take on such a huge responsibility – we are only legal service providers – we are in the business of law"? Or is it possible to allow a co-existence of both models within the profession? A discussion across the Bar should be encouraged so that we find our values.
This opinion is written keeping in mind this writer's belief that a fundamental value system of the Bar is to be a guardian of society. For those who share this view, what is the malady we are seeking to redress?
Sea of mediocrityAn utopian situation would be where every law student was taught the law course by a law college of integrity, maintaining good and prescribed standards of syllabi, teaching faculty, teaching methods and examinations; and ensuring a watchful eye on the students' conduct and ensuring understanding of the principles of professional responsibility and Rule of law. A law degree obtained in such a situation would certify that the candidate was ready to join and add lustre to the fraternity at the Bar.
However, with the abysmal state of legal education in India today, where the Prime Minister of the country describes a handful of new-age law schools in the country as "islands of excellence in a sea of mediocrity", there is an increasing clamour for a gateway method to be adopted. It was seen over the years that the acquisition of a law degree alone did not make a candidate fit to join the Fraternity at the Bar.
It has become necessary to filter out the law graduate who got his law degree without attending the minimal percentage of lectures or who cheated his way through the exams or who studied in dubious law colleges where degrees were up for sale or where qualities for education were so sub-standard that their degrees were not worth the paper they were printed on. I shall call this category of law graduates the "pseudo-lawyer".
Pseudo-legal rotA serious problem was when these "pseudo-lawyers" entered a FRATERNITY called the Bar. Over a period of time the composition of the Bar changed. What was a profession of learning came to lose its shine. The conduct of the individual lawyers affected the image of the fraternity heavily. The Collective wisdom of the Bar came down by several degrees. Frequent boycotts of courts, altercations with the police, attacks on clients and judges, corruption, touting and "fixing of benches" – these were the symptoms of the fall in standards.
There was no way that corrective steps could be taken to improve the situation, as the pseudo-lawyer had spread his tentacles wide and deep into the Bar - he even held decision making powers in several Bar Council and Bar Associations. Thus the rot in legal education spread into legal practice. It deepened and deepened until it affected the consumers of the justice delivery system itself.
With the collective level of integrity of the Bar having fallen, entry for politicians to divide the Bar on political lines became easy. In several states, Bar Council elections are funded by political parties. The ill equipped pseudo-lawyer was placed in a position of unfair competition with the real lawyer to earn his living. How could he compete with legal acumen and court-room skills that he had not been trained to have? And he still needed clients to come to him.
So he turned to touting and fixing of benches and fixing of 'the right face value before the right bench'. It became open talk at the marketplace how court orders could be 'obtained'. The rot set in deeper and soon, the underlying values of the system itself changed. Even the good lawyers had their moments of doubt as to whether they were being silly by following innocent methods for their clients by 'sincerely reading the law' - when the rules of the game were drastically changing and required 'skills of an unprintable kind'.
Vicious spiralAs a result, our Bar became the butt of severe criticism. A liberalised economy attracting fantastic investment over the last two decades saw a huge opportunity for lawyers. But this space could not be filled by the Indian Bar. Investors chose to get 'India work' done out of Hong Kong or Singapore or London, at extra cost. Foreign lawyers supervised work done by Indian lawyers for the investors in India. Contracts between businesses in India opted to choose expensive arbitration venues outside India for dispute resolution. Singapore and Dubai rose as arbitration destinations.
The best of our young legal talent refused to come to courts and moved into 'corporate' work. Foreign law firms eyeing the lucrative Indian legal market hired many of the good young talent to be trained offshore into their ideology of the business of law. Those who did come to courts did the best they could as a minority voice of sanity amongst wide-spread 'hooliganism' and touting. As courts became over-burdened and slow, it became embarrassing to tell your clients that it would take seven years to recover a debt. There was no certainty in the system anymore and it became difficult to give clear answers to the pointed questions by clients.
The corporate and law firm sectors retained quality to a large extent because market forces and private enterprise dictated higher pays and exposure to international standards of work and professionalism. A legal process outsourcing (LPO) sector boomed because of the availability of cheap legal resources in India – and both these sectors thankfully stayed insulated from the aggressive trade unionism of the pseudo lawyer.
But it was the court-room Bar that suffered the most. It was on a racing path to self-destruction. From a class profession it had become a mass profession. This is the malady we are seeking to cure immediately.
Examining the problemsAs a member of the fraternity I am happy to see the bar entry exam because it means that the Bar is being raised and the gate shuts to the unprepared law graduate. There are two issues here that require serious introspection.
First, will the bar exam alone solve the malady? I believe not. It requires a few more elements of testing added to it, which must be customized for our needs.
Second, my personal conscience pricks. I am outraged at the deep sense of injustice that has been done to all those law students who have been short-changed in their legal education. We must take steps to ensure that no law college ever produces a pseudo-lawyer again. Every law student deserves the opportunity to become a good lawyer.
Thus our strategy to deal with the malady should not be a spear. It should be a two pronged fork: First, raise the bar for entry into the bar and second, improve the quality of legal education so that our law colleges make their students fit for the Bar. Only this will be fair.
This opinion will only focus on the first issue, which is that whether a bar exam alone can solve the malady.
Quick fix bar exam?A person is ready to enter the Bar when he has achieved all the following:
- He has read the law sufficiently enough to know the basic principles of the law.
- He knows the research tools and methods to use to find the detailed law.
- He has some basic drafting skills.
- He can communicate well with his clients so that he can understand a client's problems and advise accordingly.
- He can communicate well with his seniors at the Bar to be guided in his first few years.
- He has the ability and the willingness to keep learning the changes in the law.
- He has understood the rules of professional responsibility of the Bar and the Code of Ethics.
- He has understood the principles of Rule of law and the critical role played by the legal system to maintain Rule of law.
- He is sensitive to the needs of a society and has the ability and willingness to use law as a tool for societal good.
Can this be done by way of a written exam alone? Learning in legal principles in substantial and procedural law, can be. Awareness of the Rules of ethics and professional responsibility can also be. The bar entry exam model is used in several jurisdictions in different formats.
To test for integrity, the candidate who passes the exam must be endorsed for character by three persons of standing connected to the legal profession – examples are members of the profession of at least 15 years standing or of academicians of 15 years standing or of a recognised community service leader.
The lawyer's apprenticeThis ensures that the student follows a mentoring model which is an essential character of the legal profession, and is necessary to maintain traditions at the Bar – in both a courtroom set up and in a Law Firms partnership model.
This will be made easy for the student if the 'apprenticeship model' is adopted and the student is expected to do a one year apprenticeship with any legal service provider – be it with legal practitioners or in a firm or in a company or in a recognized community service organization, after obtaining his law degree.
The existing Bar must undertake this "integrity-vouching" task with all the sincerity it deserves and must understand the damage that has been caused to the Bar when seniors have simply signed introductions on enrollment forms without even having seen the face of the candidate.
Sensitivity trainingThe third quality to be tested is sensitivity to use law as a tool for societal good. Hands-on experience with societies problems for a minimum number of hours must be insisted upon – be it seeing at close-quarters the prison system, or juvenile homes, or working with anti SEZ protestors, or with policy formulation wings of industry lobbies - these are some examples to give an idea of the clinical work that is required to make a regular lawyer into a powerful instrument for change.
Law is static and helpless if you cannot put it into the hands of such good men. The BCI can tie up with several organizations like NGOs', CII, Development Institutes or offices of Members of Parliament and Legislatures who will be happy to use the services of extra hands for short periods of time.
A list of such consenting organisations can be put up on the website and law students can approach them directly. Community work can be done over the period of 5 years of the legal education or at one stretch – whatever suits the students' convenience. The Legal Services Authorities can benefit from the pro-bono work of the students. The Bar must insist that new entrants are given the opportunity to develop the sensitivity that comes with this exercise.
South Africa and Australia are two jurisdictions where different models of this kind of testing are being used for bar entry.
RitualFinally, let the entry into the Bar be a solemn occasion for every entrant. Let it not be an en-masse, perfunctory ritual, as it has become in the recent past. Let us devise a more meaningful Oath for our Bar entrants to take, explain the meaning of the Oath and the enormous responsibility of joining a fraternity with joint liability for individual malpractice. Prof. Kim Economides, Director of the University of Ontago, Legal Issues Centre and Prof. Julian Webb, Director of the UK Centre for Legal Education, University of Warwick, offer their version of an oath to initiate a debate:
"I promise to use my legal knowledge and skill to the best of my ability and, notwithstanding duties owed to clients and the Court, will at all times serve the interests of justice without fear or favour. As a lawyer, I shall work diligently, honestly, with integrity and independence to the highest standards and do my utmost to uphold the core duties of my profession whilst respecting the truth and avoiding unnecessary harm to public and third party interests.
"I shall uphold the rule of law, the democratic order, human rights, social justice, fair and expeditious process, and work toward the improvement and accessibility of the law, legal institutions and processes."
Thus it is my submission that an Entry gateway into the Bar is a necessary thing, but must be devised in such a manner that the people who are let in must have the three essential qualities of learning, integrity and sensitivity.
Elizabeth Seshadri is a partner at the law firm Iyer & Thomas in Chennai and can be contacted at elizabeth[at]iyerandthomas.com
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To read Seshadri's previous article on how to save the Indian bar and bench, click here.