Facebook Twitter Google Email

 

IyerThomas-ElizabethSheshadriThe 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 bar

The 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 mediocrity

An 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 rot

A 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 spiral

As 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 problems

As 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:
  1. He has read the law sufficiently enough to know the basic principles of the law.
  2. He knows the research tools and methods to use to find the detailed law.
  3. He has some basic drafting skills.
  4. He can communicate well with his clients so that he can understand a client's problems and advise accordingly.
  5. He can communicate well with his seniors at the Bar to be guided in his first few years.
  6. He has the ability and the willingness to keep learning the changes in the law.
  7. He has understood the rules of professional responsibility of the Bar and the Code of Ethics.
  8. He has understood the principles of Rule of law and the critical role played by the legal system to maintain Rule of law.
  9. He is sensitive to the needs of a society and has the ability and willingness to use law as a tool for societal good.
The Bar requires men with three mandatory qualities: (1) learning, (2) integrity and (3) sensitivity. Brilliant, honest mercenaries cannot lead the Bar just as brilliant dishonesty can compromise the Bar. Honesty without learning will not take us far, and Sensitivity without learning or honesty is a lame duck. Therefore the entry gateway must test for all the above characters.

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 apprentice

This 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 training

The 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.

Ritual

Finally, 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

This article was first published under a Creative Commons licence on LegallyIndia.com. Please do re-publish it under the same licence, including credit to the original author.

To read Seshadri's previous article on how to save the Indian bar and bench, click here.

Share this: Facebook Twitter Google Email
Related Articles
Click to show 22 comments
at your own risk
(alt+shift+c)

NB: By reading the comments you agree that they are the personal views and opinions of readers, for which Legally India has no liability whatsoever. Because anonymous comments may be biased or unreliable, you agree that you will not allow any comment(s) to affect your estimation of any person(s) or organisation(s). If you believe a comment is inappropriate, please click 'Report to administrator' below the comment with your objection and we will review it as soon as practicable.

reader comments:comments rss feedrefresh

Filter out low-rated comments. Show all comments. Show latest comments only (beta)

1
 
Show?
Recommend! +0 Objection! -0 Anonymous guest 2010-08-05 15:15
No one can dispute the objective that the author espouses - that the people who are let in must have the three essential qualities of learning, integrity and sensitivity. These are noble objectives that even a politician can arrive at. The real question is - how to achieve that. These 3 words are subjective and need to be translated into actionable items. The whole debate is whether the bar exam is the right means to achieve these end goals and the author glosses over this single most important point. Everyone knows that the right and difficult way to achieve the noble goals is to get to the root cause and reform legal education in colleges and universities. But that will take guts, deep thought, engagement with academia, changes in law and structural changes in the education system at large. But the BCI takes the path of least resistance and institutes an exam which it has no legal powers to do so. In the absence of comprehensive reform, what is there to prevent the bar exam from becoming like any other law college exam that the author rightly points out is dysfunctional.

If the BCI is serious about reforming the legal system, make a comprehensive plan that addresses all root causes of this rot. Merely adding another filter to the rotten system is unimaginative and will do nothing to better it.
Reply | Reply with quote | Quote | Report to LI | #  link
2
 
Show?
Recommend! +2 Objection! -0 Anonymous guest 2010-08-05 21:49
unfortunately it is the corrupt fake lawyers who run the bar councils and are opposing reforms like the entry of foreign universities and law firms. it is these scumbags who indulge in violent protests like the pro-LTTE protest im madras.

the bar exam is a must.
Reply | Reply with quote | Quote | Report to LI | #  link
3
 
Show?
Recommend! +0 Objection! -0 Anonymous guest 2010-08-05 22:04
I doubt whether the class room lectures are of real value to the new entrant. Would the system followed by the Institute of Chartered Accountants of India (ICAI), not be a better for the legal education as well?. This may be the right time that BCI takes the role similar to that of ICAI and tests the students directly – not just a bar exam – for their full course as well and relieve the Universities and Colleges from determining the fate of future of the profession. A mandatory training say for 3 years could be a condition for enrolling into the bar. Such a system will only bring in lawyers with values suggested by the author. Instead of proceeding towards such a change, allowing the existence of institutions for creating pseudo lawyers and attempting to control the entry through a bar exam may not achieve the real purpose. Further BCI should also allow a clear debate on these issues before jumping into implementation of its resolution.
Reply | Reply with quote | Quote | Report to LI | #  link
4
 
Show?
Recommend! +0 Objection! -0 Anonymous guest 2010-08-05 22:56
... like slaves. They pay them peanuts, when they can EASILY afford to pay them better. They disregard their "duty to colleagues" and treat juniors badly and even stoop as low as to abuse them. And some junior lawyers seem to support all this as the "Indian tradition". I think its time for change.
Reply | Reply with quote | Quote | Report to LI | #  link
5
 
Show?
Recommend! +0 Objection! -0 Anonymous guest 2010-08-06 01:03
the author is appearing to suggest that UK firm and university is of high standard but that is totally wrong. they are the real mediocre. friends we will have to get together and do nationwide strikes against foriegn universities and law firms. these goras will turn law into business. foreign law colleges will charge high fees and junior lawyers will start demanding more salary. it seems only elite-class people from national law colleges like nlsiu, nujs, nalsar etc wants this.
Reply | Reply with quote | Quote | Report to LI | #  link
6
 
Show?
Recommend! +0 Objection! -0 Anonymous guest 2010-08-06 02:06
@5: Cut the crap
Reply | Reply with quote | Quote | Report to LI | #  link
7
 
Show?
Recommend! +0 Objection! -0 Anonymous guest 2010-08-06 03:06
the entire debate is missing few most important points:

1. How can a theoritical examination adequately test the practising ability of a new entrant in the profession?

2. Why an unenrolled law graduate of 2009 or of yerster years is exempted from Bar exam and only 2010 law graduates are condemned to pass through time trauma of Bar exam.
Reply | Reply with quote | Quote | Report to LI | #  link
8
 
Show?
Recommend! +0 Objection! -0 Anonymous guest 2010-08-06 03:13
#4 seems to be agent of uk firms. how much salary you expect junior laywers deserve? 1 crore per annum?
Reply | Reply with quote | Quote | Report to LI | #  link
9
 
Show?
Recommend! +0 Objection! -0 Anonymous guest 2010-08-06 08:47
excellent article. hope u write more such.
Reply | Reply with quote | Quote | Report to LI | #  link
10
 
Show?
Recommend! +0 Objection! -0 Anonymous guest 2010-08-06 08:49
excellent article. lot of issues covered
Reply | Reply with quote | Quote | Report to LI | #  link
11
 
Show?
Recommend! +0 Objection! -0 Anonymous guest 2010-08-06 09:16
This You have really interesting points here, especially the "quick fix for bar exam" subtitle. - Bangkok Lawyer
Reply | Reply with quote | Quote | Report to LI | #  link
12
 
Show?
Recommend! +1 Objection! -0 Anonymous guest 2010-08-06 20:00
At last a voice of sanity amongst the nonsensical babble that passes off for comment on LI. A mere foot note to Elizabeth's excellently and passionately articulated opinion. A Bar Exam by itself cannot be THE solution. Much more needs to be done and done quickly and consistently. Has this been done? Lets take a step back and take a look at the state of the profession from the perspective of its recent history. About 22 years ago the first national law school was set up under the BCI Trust. Twenty years hence, the legal education landscape has changed quite dramatically, for the better, though in numerical terms, much more needs to be done. Legal education has taken baby steps towards professionalism and this phenomenon needs to be widely replicated. Law school curricula, at least in the national law schools, have been streamlined and modernized and this effort must go on. A combined national law school entrance examination also indicates the growing competition for law school admission and an effort at professionalism. A far greater number of law graduates opt for LLMs and the trickle down of lawyers who enter legal education has increased though it is yet to increase to a desirable/necessary volume. Law practice in India has also undergone dramatic changes with litigation or chamber practice no longer being the only career options. A lawyer has a role to play in a company, in non-profits, as law clerks to judges and with tribunals, in LPOs. In terms of perception, there is a gradual shift from the view that law is the last refuge of good for nothings to the view that a career in law is challenging, fulfilling and lucrative for even persons who are not born into the profession. The National Judicial Academy at Bhopal is a first step towards acknowledging that ongoing legal education and sensitization is something that judges benefit from immensely. The past twenty years have also seen a visible increase in the number of Indian lawyers who practice abroad and are tested for their acumen and professionalism. Over the past thirty or so years, the judiciary has slowly but steadily consolidated its response to constitutional challenges and the need to find innovative mechanisms for combating legislative and executive over-reach; this has surely been on the basis of yeoman's work being rendered by the legal fraternity, however small that number. The government appears to realize that infrastructural support is desperately needed for judicial reforms to really take root. There are serious efforts to curb corruption in the judiciary, often with latent support from within the bar and the bench. All in all, I for one feel reasonably sanguine that the legal profession has a fairly decent platform from where the next five to six decades can be shaped. An entry level exam is another small step in this direction. I would therefore think that the answer to my query should be in the affirmative. That said, I do think that each of us, individually, has to answer the call of our own conscience as to the kind of individuals and legal professionals we wish to be, as ultimately, the collective is nothing more than the aggregate of individuals and the dominant character among a set of individuals will inevitably impart the collective its character. Each of us has a choice of displaying professionalism, empathy, integrity, civic sense and taking responsibility for being an ambassador of the profession EVERY DAY. If each of us makes a choice in favor of such a display, irrespective of financial loss or other temporary set backs, I do believe that the perceived present dominance of the pseudo-lawyer will surely but steadily come to an end.
Reply | Reply with quote | Quote | Report to LI | #  link
13
 
Show?
Recommend! +0 Objection! -0 Anonymous guest 2010-08-06 20:20
The article covers a whole range of issues and points out that the solution to creating a better bar has to be addressed right from reforming the education rather than just creating an entry level barrier. A very nice thought.
Reply | Reply with quote | Quote | Report to LI | #  link
14
 
Show?
Recommend! +0 Objection! -0 Anonymous guest 2010-08-06 21:16
Oops. Footnote almost as long as the main content. Deja Vu!!! College project scene all over again!
Reply | Reply with quote | Quote | Report to LI | #  link
15
 
Show?
Recommend! +0 Objection! -0 Anonymous guest 2010-08-07 13:01
"Tongue Firmly in Cheek" (presumably in all seriousness).
Reply | Reply with quote | Quote | Report to LI | #  link
16
 
Show?
Recommend! +0 Objection! -0 Anonymous guest 2010-08-07 19:07
Hope the BCI takes note of these constructive suggestions and implements them on a war footing. The profession is a "class profession" but unfortunately in the past two to three decades slid down to a "mass profession". Let's rescue it and that needs the support of one and all.
Reply | Reply with quote | Quote | Report to LI | #  link
17
 
Show?
Recommend! +0 Objection! -0 asr2201 2010-08-07 22:34
Excellent article; The best way to improve the profession is to raise the bar for admission to Law Colleges, then decrease the number of Law Colleges, afterwards change the curriculum by adding a lot of practicals (similar to CA course), with proper certifcation from practicing lawyers that the requisite hours have been put in and finally, yes, have a Bar Exam every 3-5 years for all lawyers and Judges too, to test whether they are in touch with the changes in Law, socioloy, philosophy, psychology, science, etc. so that they can add value to the profession.
Reply | Reply with quote | Quote | Report to LI | #  link
18
 
Show?
Recommend! +0 Objection! -0 Anonymous guest 2010-08-11 08:02
That should be the process...not just an exam for eyewash and earning cash.
BCI donot have the power to ring the powerlobby lawyers.
Reply | Reply with quote | Quote | Report to LI | #  link
19
 
Show?
Recommend! +0 Objection! -0 Anonymous guest 2010-08-16 01:09
rightly said mam! but even leading firms and senior members of the bar are fixing benches.
Reply | Reply with quote | Quote | Report to LI | #  link
20
 
Show?
Recommend! +0 Objection! -0 Anonymous guest 2010-08-16 04:22
I was teaching part time in a law college for 7 years in Karnataka. In the year 1998, Bar Council of India had proposed a similar stipulation and in what appeared as an attempt to mobilise opinion against the move, Delhi University had hosted a conference of Law Teachers of India in Delhi in which I was also a participant. Of the several topics on which papers were presented and discussions were held, the standard of legal education in the country was also discussed in detail. Many participants openly admitted that single most important factor contributing to low standard of legal education across the country was the medium of learning being local language - mainly Hindi. I have seen other equally important reasons:
1.Universitis bring pressure on evaluators to give passing marks to at least 40% of those who appear for exams. Evauators who do not heed to such pressures are not entertained the following year.

2. More than 50 % of those who fail in a paper requiring some 4-5 additional marks to clear it, will do so on revaluation.

3. The Universities in Karnataka themselves started entrance exams some years back, and 95 % of those who appeared invariably passed. Rest 5% passed on revaluation.

4. I have witnessed that the same category of students employ questionable methods when they start profession.

It is one thing to question the legal power of BCI to impose such an exam, another thing to defend entry of questionable category of people into the profession.
Reply | Reply with quote | Quote | Report to LI | #  link
21
 
Show?
Recommend! +0 Objection! -0 LegalPoet 2010-08-29 05:09
Read this late....fantastic piece.
Reply | Reply with quote | Quote | Report to LI | #  link
22
 
Show?
Recommend! +0 Objection! -0 Anonymous guest 2010-09-11 22:34
i agree with the author that the standard has come down. one of the methods to increase the quality is by examination. the article does not answer the issue of how to remove the bench-bar "mutual appreciation" society cosiness. Krishna Iyer, Subba Rao, Hidayatullah, Vivian Bose all of them underwent the same teaching like the rest. what set them apart. the robed brethern have managed to get snatch the appointing power to themselves. therefore, we are having lawyers who are more interested in keeping the judge in good humour rather than working for their clients.
further, experience shows the "OP"'s culture has managed to permiate into the other areas of practice. a judge who is honest is tempted by the lawyers practicing on the motor vehicles, rent control, land acquisition matters. what is the solution for this? nonetheless a good suggestion. hope the powers that be listen.
Reply | Reply with quote | Quote | Report to LI | #  link

Filter out low-rated comments. Show all comments.

Add comment (Alt+Shift+A)

We and fellow readers love when you share your thoughts in a comment but please:
  • be nice to other readers and humans who likely have feelings,
  • use full English sentences and words, and
  • abide by Legally India's full terms and conditions in using the site.