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Cautious Law Com floats Advocates Act amendments: Includes barebone foreign lawyer entry • Broadbases BCI • Leaves many details, much power for BCI

Law Commission proposes some changes to legal regulation: But would it be enough?
Law Commission proposes some changes to legal regulation: But would it be enough?

The Law Commission, headed by chairman and former Supreme Court judge Justice BS Chauhan, has released its draft Advocates Act (Amendment) Bill 2017, including proposals by the Bar Council of India (BCI) and other stakeholders after the Commission was tasked by the Supreme Court to look at the BCI’s failure to do its statutory duty of regulating the profession.

The draft Bill starts at page 93 to 112 of the Law Commission report (full report below).

Overall, the proposals are far from the dramatic overhaul of the legal regulatory landscape that they could have been, but instead could fairly be described for the most part as cautious tweaks.

Some of the suggestions are sensible, such as recognising the need to curtail strikes by advocates or giving recourse to clients affected by lawyers’ misconduct, and formally recognising law firms under the Advocates Act as existing.

The Commission has also recommended broadbasing the BCI’s composition and functioning, by including more nominated members outside of the state bar council election systems, and including outsiders in disciplinary proceedings.

However, for the most part, the Commission’s report shies away from any concrete suggestions for regulation and most amendments simply outsource the devilish details to the BCI.

And we all know how well that has worked to date, looking at the current state of legal education, the verification drives to finally figure out how many lawyers even exist in India, the badly conducted All India Bar Exam (AIBE) and more.

The Commission has also followed the same approach in the ridiculously thorny area of allowing the entry of foreign law firms, though it has at least suggested making the basic amendments in the Advocates Act that would be required.

If you spot anything interesting in the draft, please let us know in the comments and we’ll add it.

Foreign lawyer entry

The Law Commission has proposed several changes, including creating provisions that would enable the BCI to allow the entry of foreign law firms, notably amending the definition of ‘advocate’ to include “a foreign lawyer registered under any law in a country outside India and recognised by the Bar Council of India”.

The Commission wrote:

14.9 In view of the developments that have taken place, if the foreign law firms are not allowed to take part in negotiations, settling up documents and arbitrations in India, it may have a counter-productive effect on the policy of the government to make India a hub of International Arbitration. In this regard, it may be stated that many arbitrations with Indian Judges and Lawyers as Arbitrators are held outside India, where both foreign and Indian Law Firms advise their clients.

If foreign law firms are denied entry to deal with arbitrations in India, then India may lose many of the arbitrations to Singapore, Paris and London.

It may be contrary to the declared policy of the government and against the national interest.

With this in view and judgement of the High Courts, the Law Commission considers it necessary to have enabling provisions in the Advocates Act which will enable the Bar Council of India to frame rules to recognise and register foreign law firms and lawyers in India, as and when a decision is taken in this regard, particularly in view of the reciprocity provisions.

Law firms exist!

Other than amending definitions, the regulators are to keep a:

‘register of law firms’ means a register of law firms,-

(i) maintained by the Bar Council of India in respect of a law firm formed under any law outside India; and,

(ii) maintained by a State Bar Council in respect of all law firms formed and registered in India;

Strikes not good, says LC

The Law Commission would like the BCI:

to make rules to deal with strikes, boycotts or abstentions from courts by the Advocates, provide for suitable measures in this regard and to provide for punishments including the punishment of disqualification from contesting any election of Bar Councils or of Bar Association for a period of six years;

Instead of striking, the Commission suggests dispute resolution to deal with advocates’ grievances:

8.21 A suggestion has been made that at every district headquarters, the District Judge may constitute an Advocates’ Grievance Redressal Committee headed by a Judicial Officer which will deal with the day to day routine matters, as large number of issues and grievances arise in the smooth working of the advocates. In this regard, the High Court may issue a circular in exercise of its power under article 235 of the Constitution providing for redressal of grievances of the Advocates which will help in improving their efficiency.

Those suffering loss from lawyer strike or misconduct, should get compensation

A fairly sensible suggestion, considering that clients wronged by lawyers have very little recourse, would be this proposed amendment:

If any person suffers loss due to the misconduct of the advocate or for his participation in strike or otherwise, then, such person may make a claim for compensation against the advocate in the appropriate forum established under any law for the time being in force.

The non-payment of fees, either in full or part, by a person to his advocate shall not be a defence available for the advocate against whom such claim for compensation is made.

State bar council terms capped at two consecutive terms

An advocate who has been elected as a member of the State Bar Council consecutively for two terms shall not be eligible to contest elections under clause (b) of sub-section(2), for the ensuing next term of the State Bar Council.

BCI to have many more nominated members

To the BCI, the Law Commission proposed that:

“(c) five members to be nominated by rotation every two years, one each in seriatim from the zones as specified in the Second Schedule to represent the Bar Council of the States and Union Territories;

(d) six eminent persons of the ability, integrity and standing having professional experience of not less than twenty-five years in accountancy, commerce, medical science, management, public affairs or social science matters, to be nominated by the Supreme Court on the recommendation of a Committee comprising of a Judge of the Supreme Court, Chairperson of the Appellate Authority constituted under section 22A of the Chartered Accountants Act 1949 (38 of 1949) and the Central Vigilance Commissioner appointed under sub-section (1) of section 4 of the Central Vigilance Commission Act, 2003 (45 of 2003);”;

Misconduct defined

For the avoidance of doubt, in case there was any, the Commission has inserted a definition for misconduct into the Act:

‘misconduct’ includes-an act of an advocate whose conduct is found to be in breach of or non-observance of the standard of professional conduct or etiquette required to be observed by the advocate; or forbidden act; or an unlawful behaviour;or disgraceful and dishonourable conduct; or neglect; or not working diligently and criminal breach of trust;or any of his conduct incurring disqualification under section 24A

Disciplinary reform: More outsiders to judge advocates misconduct

“9. Disciplinary Committees .- A Bar Council shall constitute one or more disciplinary committees, each of which shall consist of five persons of whom— (i) two persons shall be elected by the Council from amongst its members;

(ii) two persons shall be from amongst eminent persons from fields other than law to be co-opted by the Council; and

(iii) the fifth member shall be a person nominated by the High Court, in the following manner, namely:-

(a) in case of the Bar Council of India, fifth member of such Disciplinary Committees shall be a person, who has been the Chief Justice or a Judge of a High Court, as i`ts nominated member;

(b) in case of a State Bar Council, fifth member of such Disciplinary Committees shall be a person, who has been a district judge, as its nominated member;

Provided that the co-opted member shall not be a member of the Council, in case of Disciplinary Committee constituted by the Bar Council of India, the Judge shall be the Chairman of the Committee, and the the members of a Disciplinary Committee of the State Bar Council, in its first meeting decide as to who shall preside over as the Chairman of the Committee.

A committee to hear complaints of BCI members’ misconduct

Special Public Grievance Redressal Committee of Bar Council of India :-

(1) The Bar Council of India shall constitute a Special Public Grievance Redressal Committee consisting of the following members, namely:-

(i) one former Judge of Supreme Court or Chief Justice of any High Court as its Chairman;

(ii) two retired Judges of different High Courts as its members;

(iii) one senior Advocate;

(iv) one member of the Bar Council of India;

(2) The Special Public Grievance Redressal Committee shall inquire into any allegation or complaint of corrupt practices or misconduct against any office bearer or member of the Bar Council of India in discharge of his duties as a member of the Council, which is referred to it by the Council

Reports by the committee would then be placed before the BCI’s general body, which can choose to lodge an FIR, initiate disciplinary proceedings or reject the report (recording reasons).

Law Com impressed with English model of bifurcating representative from disciplinary regulator

The Commission spent several pages considering and appreciating in detail the current UK system of legal regulation:

16.5 With regard to the functioning of the front-line regulators for solicitors and barristers, it has been made imperative that the representative and regulatory functions are separated and distinguished. For the same purpose, the Law Society acts as a representative body for solicitors whereas, the Solicitors Regulation Authority (in short, SRA) discharges the regulatory functions. While acting as an independent regulatory arm of the Law society, the composition of the Board of SRA is diluted wherein out of the 15 members, seven members are solicitors and remaining eight are lay persons out of whom one is appointed as the Chairman. Such a setup is inclusive in nature wherein through dilution in the composition of the board, specific problems in regard to disciplinary action against lawyers by lawyers are avoided. The same principle has also been applied with regard to the Solicitors Disciplinary Tribunal, whose composition includes both solicitor members as well as persons who are neither solicitors nor barristers (lay members). Similar set up also exists for the regulation of barristers wherein the Bar Council takes care of the representative functions and Bar Standard Board along with Professional Conduct Committee and Disciplinary Tribunals discharge the regulatory obligations as prescribed under the Act, 2007. Similar ratios of practicing barristers as well as lay members are ensured in Professional Conduct Committee whereby a lay member majority is mandated. In regard to the composition of the Disciplinary Tribunals for barristers, along with the presence of a barrister (having experience of not less than seven years), the presence of a Judge (as Chairman) and at least one lay member is mandated.

Not much reform of legal education, BCI to remain in charge according to Law Commission

Legal education in India should be structured in a manner where the BCI, along with legal academics may endeavour to innovate, experiment and compete globally. A balance should be maintained in order to change the entire fabric of legal education system in India, keeping in mind the necessity of globalisation.

wrote the Commission in its report.

Continuing legal education administered by BCI and ‘pre-enrolment’ training

Under the draft amendment, the Law Commission has proposed that the BCI would be responsible:

to provide for continuing legal education for advocates;

Also, the BCI is:

to provide for pre-enrolment training and apprenticeship to a person who has obtained from a recognised institution degree in law for a period not exceeding one year;

A CLAT under BCI?

The Law Commission also recommended that the BCI:

provide for Entrance Test for admission in the Institutions imparting legal education in the country and to provide for measures for improvement of legal education and to make provision for on-line teachings for all the law students of the country either directly or through some charitable Institution

BCI would regulate bar associations (except SCBA and law firms’ association)

The Bill draft suggests that the BCI should:

to provide for the recognition, registration and regulation of Bar Associations (except the Supreme Court Bar Association, Association of law firms, foreign lawyers) including election of its office bearers from amongst the list of regular practitioners of such Bar Association situated within its territorial limits and to make rules, schemes with concurrence of the Bar Council of India to secure their orderly growth.

This is in line with the BCI’s original suggestion in www.legallyindia.com/bar-bench-litigation/under-fire-bci-comes-up-with-plan-to-regulate-deeper-harder-stronger October 2016 in its draft changes;; (with the Law Commission version additionally excluding associations of law firms).

And bar association membership apparently to be compulsory for litigators

An advocate enrolled with the State Bar Council engaged in or intend to practice before a court of law, tribunal or before any authority or person shall get himself registered as a member of the Bar Association where he ordinarily practices or intends to practice law.

The BCI suggestions

BCI chairman Manan Kumar Mishra sent the BCI’s suggestions to the Law Commission on 10 March, but asked to delay the process further because “the committee was of the view that in view of the importance and seriousness of the matter” a “deeper deliberation and a further serious consideration is required”.

The BCI had in October 2016 invited the Society of Indian Law Firms (Silf) - a long-time staunch opponent of liberalisation - onto its internal committee to re-draft its proposals, after an earlier leaked draft was widely slammed and later withdrawn.

However, many of the BCI’s suggestions have in part been incorporated into the Commission’s draft, though often with small tweaks.

In other cases, it was ignored, such as the BCI’s suggestions of increasing state bar council members’ terms from five years to six years, or making compulsory legal education compulsory.

BCI had indeed proposed fining striking and misconducting advocates, causing strikes

The full copy of the BCI committee’s suggestions is annexed to the report from page 58, and indeed, as reported by the Times of India on 16 March, includes suggestions to ban strikes and fine advocates guilty of misconduct for up to Rs 5 lakh.

This resulted in Delhi bar associations leading a strike and protests at the BCI offices yesterday against BCI chairman Manan Kumar Mishra, who promptly wrote to the Law Commission to withdraw the BCI’s suggestions.

The publication of the BCI’s recommendations by the Law Society directly contradict comments of Mishra’s that the BCI had made no recommendations at all, which he had said to Bar & Bench on 21 March when faced with a bar association strike:

On the decision of the Bar Association to go on strike, Mishra said,

“I have called a meeting today to clarify to the members of various Bar Associations that no recommendations have been made by the BCI and the Law Commission is still in the process of finalizing its recommendations.”

He further said,

“If at all, at any time in the future, either the Government or the Law Commission takes such a step, then the BCI will oppose the same. No one can be stopped from going on protest but unjustified protests or strikes will not be allowed by BCI.”

</p><h3>Who else responded to the Law Com and what did they say?

Who else responded to the Law Com and what did they say?

In response to the notice, 136 responses have been received, out of which 79 are from judges; 10 are from Bar Council(s) and Bar Associations; 16 are from Lawyers; 6 from Government Lawyers and Officials; 7 are from academics, research organisations and other organisations; and 18 from others.

Apparently, of those, an “overwhelming number of responses point out the failure of the existing mechanism and hence have realised the need for urgent reform required”.

While dealing with the provisions regarding the establishment of disciplinary committees for regulating the conduct of lawyers, a large of number of responses have highlighted corrupt practices within the lawyer fraternity thereby giving rise to issues of vested interests while performing the disciplinary functions. The responses have hence urged to make amendments in the Act providing for composition of disciplinary committees which would include retired judges, persons from high court registry, civil society members, bureaucrats, and legal academicians so as to dilute the majority of lawyers in the disciplinary committees. There have also been calls to make disciplinary committees as permanent standing bodies. A number of responses have also pointed out the need for uniform qualifying examination and thorough verification of documents and character of a person as a pre-requisite for enrolment.

And, “a specific response has also called for lifting the restriction on advocates for advertising while highlighting the need for legal profession to adapt to evolving international best practices”. Advertising was not discussed by the Commission.

Law Commission proposals on Advocates Act reform

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