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Bar exam does not affect seniority but required to 'practice'; No SC/ST reservations

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Graduating students can work as "trainee advocates" with advocates or law firms but will not be able to "practice" law until they pass the all-India bar exam, the Bar Council of India (BCI) said in a set of frequently asked questions (FAQs) published today, noting also that seniority of practice would be unaffected.

The BCI published more than 50 answers and frequently asked questions (FAQs) on the bar exam on its website today.

The FAQ states: "In order to practice law in India, any student graduating in law from Academic Year 2009 – 2010 onwards will be required to pass the All India Bar Examination.

"An advocate who has not passed the All India Bar Examination can assist an advocate or advocates practicing in a law firm while preparing for the All India Bar Examination."

"Practically speaking, any law graduate who does not have practical experience at the bar will spend their formative years working under a senior or within a structured system at a law firm. The advocate can continue with such assistance and learning, but will not be allowed to actually practice law themselves (file a vakalatnama, issue opinions etc.) till they clear the All India Bar Examination."

"Can I practice law in India post enrollment and prior to passing the All India Bar Examination?" asks another of the FAQs, with the response being: "No. You can work as a trainee advocate with an advocate or firm, but in order to practice law in India, you need to have passed the All India Bar Examination.

"This requirement is not unlike that in the United Kingdom, the United States of America and the Commonwealth, where the passing of the Legal Practice Course (LPC), the Bar Vocational Course (BVC, to be the Bar Professional Training Course from 2011) or the Bar Examination is a necessary step for moving from being a Trainee Solicitor, a Bar Pupil or an Articled Clerk to an advocate, attorney, solicitor or barrister."

The FAQs do not define further what is meant by practice of law but the December 2009 Bombay High Court decision in Lawyers Collective v Ashurst & ors decided that "practice" of law included all non-litigious matters for clients. While the precise ambit of "practice" was not set out in the judgment, paragraph 55 suggests that non-litigious matters could include "drafting documents/ giving opinion or rendering any other legal assistance".

The FAQ also set out that seniority of practice will not be affected by the date of passing the exam but only by the enrolment date with the local bar councils,

"I am graduating in 2010 and going abroad to commence my LLM from October 2010. I will not be able to take the All India Bar Examination in December, and when I return in 2011 to work in India, my seniority at the Bar will suffer as I am taking the examination a year later," asks one of the FAQs, which is answered by: "According to Section 17 of the Advocates Act, seniority is determined by the date of enrolment. Hence, if you enroll prior to going abroad, your seniority will take effect from that date, and not from the date of passing the All India Bar Examination. However, you will only be able to practice law in India once you pass the All India Bar Examination."

The FAQs also specify that each exam will have a maximum permitted time of 3 hours and 30 minutes, with 40 per cent being the pass mark out of 100 questions. There would be no negative marking, according to the FAQ, and unlimited chances at a re-take in case of failing the exam, which will be held twice per year.

In a separate answer the BCI clarified that there would not be any benefits available for advocates in the scheduled castes (SC) or scheduled tribes (ST) categories.

The BCI announced last week that the exam would be held on 5 December 2010.

To read the full set of FAQs on the BCI website click here.

Picture by Eflon

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