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One third of the profession is fake, claims BCI chief. So can the real lawyers please stand up?

BCI: Keeping it real
BCI: Keeping it real
Kian Ganz looks into the BCI’s latest claim that 30 per cent of lawyers are not really lawyers and asks, how the BCI knows.

“Thirty per cent of all lawyers are fake, who either hold fraudulent degrees or are non-practising persons and 20 per cent of those who sport lawyers robes do not have proper degrees,” Bar Council of India (BCI) chairman Manan Kumar Mishra said at a function in Chennai, the PTIand others reported on Saturday.

But this is not merely an accident, a symptom of an unscrupulous profession or as Mishra alleges, the fault of people like former Delhi law minister Jitender Singh Tomar, who had to resign after having been accused and charged by the police with having fabricated his law degree.

In fact, the BCI should have no one to blame for this situation except for itself.

In January 2013, chairman Mishra told the New York Times' erstwhile India Ink blog that there were “about 17 lakh (1.7 million) lawyers in the country today”, “approximately 1,000 law schools, and almost 45,000 to 50,000 lawyers (were) added every year.” Mishra later confirmed to Legally India that 1.7 million was an approximate but correct figure.

One month later in February 2013, a Right to Information (RTI) response by the BCI stated that in 2011 there were 1.3 million lawyers in India according to its records.

In 2011, as reported in Mint at the time, the BCI website stated that there were 1.2 million lawyers in India. That was 30% below Mishra's 1.7 million figure; alternatively, if both figures are correct, it would mean that 2.5 lakh lawyers entered the profession per year, which is a lot more than even the most hyperbolic estimates of yearly graduates.

As long suspected, the BCI has an arithmetical challenge and never really had any exact idea of the number of lawyers it was actually supposed to be regulating in India, especially if you compare it to the precise statistics and demographics made available by legal regulators in most other sophisticated legal markets.

One difficulty in counting is that the state bar councils maintain the rolls of advocates and the BCI has never had live access to these rolls, relying on a drip feed of information, sometimes in hard-copy.

This will hopefully change with the BCI's new Certificate and Place of Practice (Verification) Rules 2015, which aims to weed out those who shouldn't be on the rolls by requiring five-yearly renewal of advocates' licences for Rs 100.

“Fake lawyers and non-practising law graduates are degrading the standards of the profession. We will filter bad and non-practising lawyers and remove them from the rolls,” Mishra said on Saturday, promoting the new rules, which should have netted the BCI Rs 12 crores by the first deadline, 13 July 2015, if 1.2 million lawyers signed up.

That said, I met a managing partner of a prominent Delhi law firm last week who hadn't yet bothered renewing the licence under the new rules, while high courts in Karnataka and Kerala have stayed the notification rules for being potentially unconstitutional, in restraint of lawyers' trade.

But placing the blame on lawyers alone is too easy an out for the regulator, which has been sleeping on the job for the past decades while the profession has moved on.

Technically, the BCI requires lawyers who stop working as advocates – i.e., those who stop appearing before courts – to deregister themselves from their state bar council.

For example, if a lawyer moves from a law firm to work in-house at a company, they're supposed to let their home state bar council know that they'd like to surrender their practising certificate, because technically, an advocate is never supposed to be employed by anyone but has to work independently (this is, by the way, why law firms 'employ' their associate or partners full-time on a 'retainer' basis rather than as an employees).

In practice, only a minority of lawyers who go in-house or leave the profession ever de-register themselves.

Most bar councils are the opposite of user friendly: with a few honourable exceptions, their websites are all but useless, the members are unapproachable, and for decades they have barely been aware of the existence of law firms and corporate in-house counsel and have therefore not bothered to make rules that are appropriate for them.

Almost every in-house lawyer I've ever spoken to, has said that unenrolling was as pointless and unconstructive an exercise as dealing with a bar council unless they had to.

First, once de-registered, if you ever move back into the profession after taking some time out, or if from in-house you want to re-join legal practice, it means you have to deal with the bar council bureaucracy again to re-enrol.

Second, an advocates' card carries certain status and unwritten privileges, such as acting like a magic shield against traffic cops.

Third, as far as I'm aware, until now no one at any bar council has ever bothered checking or caring about whether in-house or retired lawyers are still on the rolls; after all, having a bigger nominal voter base can be useful for a variety of reasons, including the political influence game.

From that perspective, the “certificate of practice” initiative – nudging advocates to make an active choice to remain in the profession every few years rather than doing nothing to remain one by default - is a positive development that will finally introduce some awareness of how many lawyers there actually are.

However, as so many other BCI initiatives, it runs the risk of becoming a hotch-potch of uncoordinated paperwork. For this to be meaningful and for the BCI to exercise proper oversight, it has to establish more effective and real time electronic communication channels with its state bar councils.

Full disclosure: Mishra has sent a defamation legal notice on behalf of the BCI to Legally India and the author in May 2015 in respect of a story on the BCI's award of the tender to conduct the All India Bar Exam (AIBE). Legally India has replied to and strongly contested the substance of his notice on 8 June but has not received a response from Mishra.

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