Lawyers’ lack of professionalism is affecting litigants’ cases and causing them distress, as judges ignore the problem helplessly, argued Harvard Law fellow and Centre for Policy Research visiting faculty Nick Robinson in The Hindu.
A prestigious law firm employs an associate to follow a well-known senior advocate at the Supreme Court to try to ensure that the senior turns up for scheduled hearings of their client. Double fees have reportedly become accepted practice among many of the biggest names in litigation — one fee to argue a case, another fee to guarantee they will actually show up.
Although lawyers may make their arguments to judges in grovelling terms, it is the lawyers who often have the power in the relationship. Judges fear that if they try to discipline lawyers in their courtroom they will be spoken ill of by the bar: a powerful constituency which could impact their chances of a promotion or post-retirement appointments.
Although the Bar Council releases no publicly available annual report, in the little information that is available for 2010-11 their disciplinary committee reportedly suspended only 14 members of the bar in the entire country (by comparison, about 800 lawyers are disbarred and 3,000 suspended each year in the United States).
Given the opacity of the judicial system, most litigants find lawyers through personal contacts. As a result, their choice is often based on anecdotes and misunderstandings about what they really need.
Many honest and industrious lawyers lament the unprincipled practices of their peers and the time they end up wasting in undisciplined court rooms.
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And apparently this guy hasn't learned much in his time here - a foreigner who opens his mouth to complain is not long for this world. He's about to find out that none of the judges or lawyers he hung out with will give him a hand when the BCI or some crackpot files a defamation action against him. Didn't consider that, huh, Mr. Crimson? Welcome to Delhi!
While I agree that this article is a simplistic one that describes problems which are self-evident to insiders in the legal system, please remember that it is written for a general reader who browses through the opinion columns of a national newspaper. It would be a mistake to judge the author's work by looking at this piece alone. Nicholas has been in India for the better part of the last 7 years before taking up a research fellowship at Harvard Law School last month. For your information, he holds a bachelors degree from University of Chicago and a law degree from Yale Law School.
He is the author of a forthcoming study on the Indian Supreme Court's caseload (see link below, it is the first credible statistical analysis on this subject since a book by Rajeev Dhavan in the 1970s) and a fairly well-written article published in the American Journal of Comparative Law on how the Indian SC's multi-bench structure undermines the presumptive emphasis on precedents. For a small sample of his writings, see the following links:
azimpremjiuniversity.edu.in/sites/default/files/userfiles/files/LGDI_WorkingPaper_14December2012_The%20Indian%20Supreme%20Court%20by%20the%20Numbers_NickRobinson.pdf
india-seminar.com/2013/642/642_nick_robinson.htm
www.frontline.in/cover-story/a-court-adrift/article4613892.ece
I felt compelled to respond, firstly, because he is a friend, and secondly, because you've enumerated your educational qualifications on this forum before and one would expect that you would have done your homework on an individual before making evaluative remarks. The latter seems to be an especially problematic trait that is common to many of us who have graduated from NLSIU Bangalore. So if you want to engage in a fair-minded exchange on this forum, you would be well-advised to do your home-work on me before posting your next comment on this thread. The easier option of course is to hide behind the veil of anonymity and fire away. In either case, I am looking forward to more pearls of wisdom from your side.
I appreciate your thoughtful and considered response.
Mr. Robinson has a very good academic background, and has hopscotched around India and Pakistan on relatively brief teaching stints. The source of his interest in India (and Pakistan) is not clear but he appears serious enough.
I remain unimpressed by his level of insight, however. Throwing a few stats on case backlog together with observations on routine injustice is not really splitting the atom. Adding footnotes to a police blotter doesn't make it research. His proposals for correction are either obvious (the BCI should do its job) or not reflective of Indian tradition (lawyer advertising as a method to increase access to justice).
It's great of you to step up for your pal, but there was no personal attack to defend. The only personal remark I made regarding Mr. Robinson was speculation on the wisdom of a foreigner speaking up on a matter likely to cause embarrassment to entrenched powers in India. That's obviously a very personal call for him to make. I consider his actions risky and imprudent, tailored more for self promotion than actual contribution to correcting these shortcomings. That does colour my view of the insight he brings to bear on these significant issues.
You might render him some advice on such risks. Yes, we all know you Sid - you're the stand-up guy who stood up and "said what needed to be said." Some may call that "brave," while others may ask if that was the most effective way for you to approach the manifest problems. Now you're on the outside and without any way to actually change anything. Mr. Robinson would do well to study your example.
That's a very short-term view of things. When confronted with serious problems in the working of an institution, someone has to bell the cat, even at the cost of personal loss. While you rightly point out my inability to work for constructive changes at our alma mater at the moment, I am sure that persistent scrutiny of malpractices will pave the way for self-correction and meaningful reforms in the future. A similar rationale applies in respect of scholarship on legal system reform in India.
Sitting judges and practicing lawyers are often surprised when someone explains trends through statistical analysis, many of which are contrary to widely-held beliefs. For instance, many lawyers and judges thought that letter petitions for PIL cases were clogging up the courts and that belief was dispelled when articles by Varun Gauri and Nicholas Robinson showed that such cases were not even 1% of the Supreme Court's docket. His papers may not be comparable to the evidence-based research conducted by scholars of judicial politics in U.S. universities, but is certainly a fresh start in India. You are of course free to express your own views on the quality of writing. I took exception to the casual manner in which you doubted his judgment. Once again, I urge you to read his articles published previously in other journals and periodicals.
@ Dazed and confused: We all know about the problem but we don't discuss the problem, do we? There will be no change without discussion or public outrage against a system that ensures zero accountability of lawyers. Also, there can be no successful defamation suit because these are statements of facts which, in your own words, is obvious and known to all! If you are to argue that a suit itself will cause harassment, then I would say that not everyone feels scared when they take a step or express a view in this free country.
Well said!
And as a matter of professional courtesy I do not criticize jurisdictions in which I am not licensed or otherwise have the right to appear. It would be like a cricket fan commenting on baseball; you can do it, of course, but what's the value?
Wow, what a comment! You really seem to be unable to accept a valid point, if that doesn't suit your stand. Are you saying that until you are New York or CA qualified, you would not criticize/debate the authorization of torture by the Patriot Act, or a pro-Republican judgement by judges who are known to be staunch Republicans? You will never debate a judgement of the Supreme Court of Pakistan that is viewed by some to be violative of the constitution simply because you are not Pakistani law qualified?
You think that a foreigner should not comment on Indian issues, especially the "obvious" problems. Fine. But ask yourself this. Have you provided any reasonable, repeat reasonable, arguments that support your stand? Arguments based on personal views, biases, conjectures and obstinacy makes a lawyer sound like the khap panchayat mukhiyas who cry for a ban on chowmein and western clothes on the ground that it leads to rape. Think about it.
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