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'Legal professionals' divided on new legal super-regulator’s effects and efficacy


The proposed Legal Services Board has elicited mixed reactions from legal practitioners on CNBC-TV18’s The Firm, with Rajiv Luthra noting that state bar councils do need tighter regulation in some manner, Lalit Bhasin and Karan Bhosale arguing that the existing regulators can already do the job and MP Bharucha predicting that it could facilitate the entry of foreign law firms.

Two weeks ago Legally India reported on the law ministry’s proposal to create a new super-regulator, which would oversee the regulation of legal practice, client service, legal education and make it obligatory for lawyers to provide free legal aid, as well as create a definition of “legal professionals”, which could include not just lawyers but also others providing “professional services where legal issues are involved”.

The Firm summarised the changes of the Legal Practitioners (Regulations and Maintenance of Standards in Professions, Protecting the Interest of Clients and Promoting the Rule of Law) Act, 2010 and interviewed lawyers and legal practitioners, which was aired on 19 November. The law ministry has invited comments on the proposals from the public and the profession.

Luthra & Luthra managing partner Rajiv Luthra

“I don’t think most of the State Bar Councils have been doing their job properly. I think they need to have much more vigilance, they need to regulate the profession in a much more solid way and I don’t think that’s been happening. So from that standpoint, this seems to be a solution to try and get the state Bar Councils to start working properly or to superimpose some authority on them.{source}<div style="float: right; margin-left: 10px;"><strong>The Firm, 19 November 2010 video (2 parts, ~12 minutes):</strong> <br /> <script type="text/javascript" src="/video/example/flowplayer-3.2.2.min.js"></script> <a href="http://video.tv18online.com/cnbctv18/news_videos/2010Nov/thefirm1_19nov.flv" style="display: block; width: 425px; height: 360px;" id="player"> </a>

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“Do we need a separate regulator? Answer is, we definitely need to improve our current system. Whether that improvement is by putting another set of bureaucracy… what is the best way to do it? I think there should be some debate on this and then they should try to get the system going. Because they have very far reaching effects and my view is that the way this is structured, the Bar Council might as well be wound up!

“While it sounds very good on paper, to actually enforce… for example, this bill if you see, if you do an interpretation of it will also regulate Chartered Accountants who are tax practitioners. So what happens? Do they follow the rules of Institute of Chartered Accountants? Do they follow the rules of the Legal Services Board?”

Maharashtra and Goa bar council member and advocate Karan Bhosale

“I don’t think you need a Legal Services Board, for the simple reason that you need to understand what the setup of our country is. This is a democratic country where there are elected representatives who do their jobs. If, as a nation, we come to a conclusion that we need a nominated board or a selected board to regulate an elected board, perhaps the Legal Services Board would be justified.

“I don’t think the Ombudsman is doing anything different from what the Bar Council is already doing. The second reason why I don’t think you need an ombudsman is that if you see the Bill, it provides for only one Ombudsman in every state in country. Presently, at least when I talk about the state of Maharashtra & Goa, there are 25 elected Bar Councils representatives. So 25 people play the role of Ombudsman. So if you withdraw this role from 25 people and give it to one Ombudsman, it’s going to clog the entire system.

“I think this is a good thing which this bill has that you have now included professionals who are engaged in practice of law. But, having said that, my stand is the same. I don’t think you need a legislation to include these practitioners. All that you need is an amendment to the Advocates Act and the rules under the Advocates Act and that should suffice.”

Society of Indian Law Firms chairman and Bhasin & Co managing partner Lalit Bhasin

“There is already a regulatory mechanism in place under the Advocates Act which governs not only the legal profession but also the legal education leading up to the degree of a law graduate, so it is a comprehensive piece of legislation which covers the entire legal profession right from the legal education till the practise of law starts and during the course of practise of law. So I don’t see any logic or reason or rationale as to why a new entity is created which anyways will superimpose itself on the Bar Councils which have been set up at the state level and at the national level.

“Assuming that there is some deficiency in this regard, that can be overcome by the amendment of the existing provisions, by adding that there could be co-option of more independent members from outside the Bar Council such as eminent lawyers who can also be brought in the disciplinary committees of the Bar Councils. So there are ways and remedies in case there are deficiencies which I don’t think there is any!”

Bharucha & Co co-founding partner MP Bharucha

“There needs to be a distinction between the regulatory function and the representation function. If you look at the Advocates Act, both the State Bar Council and Bar Council of India, one of the primary responsibilities is to preserve the rights, privileges and interests of advocates. That, I would regard as a representative function. As against which the regulatory function is education, entry levels, maintenance of standards and discipline. I think it stands to reason, that you segregate the two.

“I suppose it’s one of the methods which the government has thought of to resolve the issue of foreign law firms practicing or not practicing. If the Board takes up a position that competition is good (which it must take into account) and that foreign lawyers must have a right of entry, then the opposition that exists within various segments of the legal profession and consequently in the regulator, will have to toe the line.”

Click here to download the full draft Bill and proposal.

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