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Ex-JSA senior partner Berjis Desai becomes ‘private lawyer’: We ask how to be one, why it could be huge, and why most firms aren’t doing it

Focusing solely on private clients is an interesting area, he insists, but it isn’t for everyone...

Berjis Desai talks about a private life post-JSA from his new private lawyer office
Berjis Desai talks about a private life post-JSA from his new private lawyer office

Berjis Desai, the former senior partner of J Sagar Associates (JSA), has, as long-planned, opted to retire at 60 rather than 65 and now gone independent as a so-called “private lawyer”, as his business card now says, styled on US-based individual lawyers specialising in advising mostly private persons rather than corporates.

“In JSA, we have a choice between 65 and 60, and I had decided right when I joined JSA in 2002, that I would retire at 60,” explains Desai about his plans, which do not really mean that he is retiring. “It is well-planned because I have many other interests apart from the law, such as writing, so I am going to try and focus at least some of my time towards writing.”

As a former journalist before he became a lawyer, that includes writing about law and policy, but “I have tried my hand at fiction, which is unpublished so far”, he adds. “I hope it sees the light of day soon.”

He also has several other interests, such as the breeding of thoroughbred horses and other public interests, including several charities. “Essentially this is something that I am really looking forward to,” he says.

Desai has set up his office in Nariman Point’s Dalamal House in Mumbai, and will specialise nearly exclusively on private client work, including tax advisory, estate planning, wealth management work, escrow advisory services, acting as a mediator, and fast track commercial arbitrations.

“It’s an individual practice in the sense of, I am not going to employ a single lawyer or engage any retainer,” he notes.

Private client is an interesting practice area, but Desai is correct in that it is not very widely practised (yet) in India. So, we took the opportunity to find out more from him about what a private lawyer does and why many more law firms don’t have private client practices if it’s so great.

It turns out, says Desai, that many of the skills and work of a private lawyer come down to EQ (so-called emotional intelligence).

Private client work includes a lot of arbitration

Berjis Desai (BD): “Arbitration and mediation can be for anything including corporate disputes, because at times people do not want to do a formal arbitration etcetera, they want a fast track documents-only arbitration, which is done very fast, if both the parties have confidence in you as a sole arbitrator.”

And mediation too...

BD: “They have set up a mediation centre, as you know, in the high court. Mostly they give it (mediations) to retired judges, even sometimes to sitting judges, and so on.

“But I do believe that mediation is an artform and it really requires a lot of EQ and understanding.

It’s like playing a poker game without playing any stakes, as a mediator.

“I think it’ll develop.”

LI: What are the challenges as a mediator?

BD: “To try and make both sides understand their strengths and weaknesses.

“To sort of suss out what is the common meeting ground. So the posturing that takes place between parties, that posturing is not there in the mediator.

“The mediator can break down that wall then, to that extent, he moves about from room to room and brings about solution, which the dynamics of what parties facing each other across the tables may not be able to achieve.”

LI: Many lawyers are not naturally very good at that, right?

BD: “I think it’s something which most of us are not as well-trained in as an English lawyer, but I think a beginning has been made... I do believe that there is scope for it.”

LI: What is it like to build a private client practice? It’s a niche area...

BD: “In my case it has happened spontaneously, there was no effort on my part as such, and I believe this is one area where as far as tax is concerned, a lot of the accounting firms and tax consultancies are doing a great job on the taxation aspects.

“But on some of the trust law aspects, of the family dispute aspects, and succession planning, where lawyers are required, there’s an acute shortage of lawyers; you can literally count them on your fingers.

“Some of the senior lawyers who are obviously as experienced and quite capable of doing it, they are so busy with managing their large firms and having various other issues, this is not something which is attractive to them.

“To that extent there’s a shortage, and I hope that more younger people do come into this area.”

LI: But how do you start out as a young private client lawyer, since not many law firms have practices, and you are not taking any juniors...

Desai laughs. “Yes. I think you learn by experience. It’s also a question of trust.

“I have many promoter groups who [were] not necessarily clients of JSA, but who only for their private client work come to me.

“So that kind of situation happens, and it’s a question of trust, and experience, and a lot of EQ. More EQ, and less law. Understanding issues and understanding family situation and so on.

“I think it will do well. It is one practice which most of the law firms are ignoring.

“I don’t know a single large law firm in India, which is trying to focus in a manner to deploy senior resources.”

LI: Well, it’s not hugely leveragable, as a practice area, it is very partner driven, and it’s not very profitable unless you get to the very senior level, right?

BD: “It’s because it requires your personal attention, great personal attention: you’re dealing at the promoter level, they expect the interaction is with you and not necessarily a junior.

“So it’s a very highly personalised, personal and personality-driven practice, and particularly in India. It’s not so abroad. But particularly in India.

“The level of confidence and trust, you do require a little bit of grey hair behind your ears.”

LI: So why should a law firm get into it, if not as profitable?

BD: “I think it could be a hugely beneficial thing from a cross-marketing perspective.

“So if a promoter family who is not your client is very happy with the kind of service you’ve given to the family, which is the dearest to his heart, I’m sure that down the line he will instruct his managing director or executives, why don’t you try out this firm for transactions.”

LI: But that’s arguably something that has been part of Cyril [Shroff]’s and Zia [Mody]’s marketing strategy for a while...

BD: “While both of them are obviously immensely capable of doing this practice, they have so many other things on their platter: they require 48 hours in 24 hours.

“To that extent they would rather focus on the sexier areas than private clients.

“But I do hope that younger people and younger boutique firms take this up.”

LI: But then they don’t have grey hairs yet.

BD: “I supposed they soon will have.”

LI: Is it maybe possible for younger lawyers to get into this and advise younger dot-com billionaires?

BD: “Possibly, if there’s a young promoter who feels a better rapport with a younger lawyer of his own generation, yes.”

LI: How hard is it to get the skillset, other than EQ, which you presumably either have or don’t have...

BD: “Without sounding terribly immodest, I think this is something, that is not that easy to acquire, that skillset.

“It comes natural to you - either you’re a natural private client lawyer or you’re not. And you should enjoy doing it.

“It may not necessarily the most paying, it may not be, but it really sort of builds relationships and it’s a very enjoyable practice and a very satisfying practice.”

“When you sort out problems in the family and you achieve the goal of really achieving harmony in the family, that brings a lot of satisfaction.”

“I find it very exciting.”

LI: Are the legal issues complex and difficult, or more often human issues?

BD: “It’s a cocktail of both. I don’t think it’s legally very complex. It’s understanding the law.

“For example, the concept against perpetuity in Indian law, it’s a concept that even some very smart lawyers will give you a blank look. To that extent, it’s a more ignored practice and something on which I believe in the next decade or so it will gather some pace.”

LI: What kind of legal and regulatory changes do you think are required from a private client practice perspective?

BD: “A lot of changes in the tax structure [are required]. These are truly structural changes.

“To understand all the various apprehensions that high net worth individuals have, there is a lack of clarity on several issues.

“For instance, if you want to transfer your promoter shareholding to a family trust. If there are non-family member trustees, who are to exercise voting rights, what are the implications under the Takeover Code.

“The views are becoming more sensical and more and more practical, but these are some of the areas, where people want to transfer their holdings to a trust, in the belief that sooner or later we’ll have an inheritance tax.

“Which is what keeps a lot of people awake at night.

I do believe that some kind of inheritance tax is inevitable before the next general election. I don’t believe it is such a bad thing.

“Various structures [are therefore coming up] to skip a generation, and avoid inheritance tax.”

LI: A lot of structures are taking place on a speculative basis?

BD: “People are increasingly learning to understand the concept of trusts. Our trust law is still in a very nascent form, compared to the kind of trusts you have in the US and UK and stuff. It’s an extremely well-evolved and well-developed trust law.

“So I think we are having the Indian Trust Act of 1882, and [that’s been] hardly amended.

“There is no talk of reform of trust law, but it badly requires it.

“I would like to contribute to that and point out what kind of reforms are required. Some of the old Eenglish law is now not prevalent in England, but we continue to mechanically follow it.

Any legislation which is 125 years old and hardly amended, is not going to be suitable for modern day challenges. That is something we must look at.

“A lot of stuff which will happen in charity trust law, there also very interesting issues, where sometimes business wealth is held in the form of charity trusts, etc. All these laws do require a lot of reform, some of these are pretty antiquated.

“I would like to take an opportunity to comment on them and try to suggest a good mix.”

A write-up of the second part of our interview with Desai, on other issues, will also follow shortly.

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