Legal Profession: Search for Fresh Moorings
by Prof. Dr. N. R. Menon
According to available statistics, over 80,000 law graduates pass out every year from the country's 965 law schools. Though the majority of them enroll with different Bar Councils, not even half that number take up litigation in courts. There are many reasons for it, which are not necessary to be explored for the purposes of this paper. It will be interesting to find out what these law graduates (who do not go to courts for practice) do for their livelihood and how they fare with their counterparts in litigation. The pattern of lawyering is changing with the time without the organized Bar realizing the transformation!
Thanks to liberalization and globalization, the legal profession has suddenly assumed attraction to many talented young people who otherwise were pursuing medicine, engineering and other technical courses of study. Unfortunately in the public mind, the legal profession is identified with the black-robed advocates who do litigation all the time and have earned notoriety for all the ills of the system of justice, namely, cost, delay and uncertainty. The positive aspects of the justice system and the lawyers' role in it are seldom publicized and appreciated by the public.
The system, in fact, do need more courts and tribunals with many more lawyers and judges in active practice, if access to justice and timely justice were to be provided to every Indian in need of justice. India has one of the lowest ratio of lawyers to people - one lawyer for every 2,000 persons or so as compared to one lawyer for every 200 persons in Europe or America. There is indeed a large body of unmet legal needs where poor and disadvantaged people silently suffer injustice unable to fight for their rights through legally constituted institutions. The Maoist phenomenon is partly the result of such denial of justice to large sections of people living in remote areas of the country. Admittedly, there is need for legal services in villages and rural areas where 70 per cent of people live; only difference is that they are not interested in long drawn out litigation through several levels of courts and would like quick redressal of grievances through non-technical, yet fair methods under law.
Can we develop alternate methods of lawyering which are socially relevant, quick and inexpensive. Negotiation, mediation, conciliation, arbitration, Lok Adalat, Gram Nyayalaya and other informal systems are being talked about though the institutions are not in place and the trained personnel are not yet available in adequate numbers.
The Case for a Finishing School
How is this relevant in a Finishing School for law graduates? This is relevant because like every other profession, the legal profession has to change with the changing times. Litigation is a luxury in poor countries where the capacity of the litigant to bear litigation expenses is limited. Therefore, alternate lawyering is an imperative necessity. Even in rich countries, the majority of cases filed does not go to regular trials but are diverted for Alternate Dispute Resolution (ADR) methods. In India it is not the case and every issue is litigated in which the rich do enjoy unfair advantage as compared to the poor. This is in the nature of things in an adversarial proceeding where parties are not equally placed. We need non-litigative procedures more than the rich countries and the new law graduates who want to stay in legal practice have to learn the skills of negotiated settlements.
Corporate legal practice will, of course, seek more and more lawyers trained in business laws for research and documentation, for negotiating contracts, for advising business transactions and to manage the affairs of corporations according to legal requirements in different jurisdictions. They may work either in the legal divisions of corporate enterprises or in large law firms who service the legal needs of corporations. They seldom go to courts and are not proficient in litigative skills. They must know the legal systems of different jurisdictions wherever the corporations do business and must be able to interact with related professions like accountants, engineers and managers. Corporate law has its foundation on Contracts and they are constantly changing depending upon the growth of science and technology and the level of economic development and trade. Corporate lawyers require specialization in the emerging areas of corporate practice, finance and management. Knowledge of more foreign languages is an advantage to the corporate lawyer. In India, corporations and law firms specializing in business and commercial laws are estimated to need a thousand competent lawyers more every year and they are scouting for them in every leading law school giving inducements and attractive pay packages. Of late, even foreign law firms are also recruiting law graduates from Indian campuses. Their regret is that they are not getting the right type of law graduates in adequate numbers and to remedy the situation, they are tying up with law schools for joint programs of teaching and training involving students even while they are in their final year of law studies. This trend is likely to continue for at least another decade or two, providing attractive jobs for competent law graduates in Indian and multi-national corporates depriving the ordinary litigant of their services.
What about the law graduates who did not get such good education and training to be able to compete for corporate jobs? Opportunities are in plenty provided they are prepared to take risks and work hard even if they do not get adequate returns immediately. Let me suggest some of these options available to serious law graduates seeking to come up in the profession. The Finishing Schools can help a great deal to prepare those not fortunate to get plum jobs in corporations to earn a decent living on their own enterprise while serving the people in meaningful ways to access justice.
Lawyers' Co-operatives or Collectives (LCs)
LCs are small law firms of 2 to 5 like-minded lawyers setting up an office in a district town seeking to do public interest work (legal aid and pro bono activity) together with paid briefs on reasonable fees with integrity and professionalism. The work will be distributed among partners on the basis of specialization with a joint back up office supported by professionally organized para-legal services. Yes, it requires some initial investment which may be mobilized either through bank loans or small funds jointly contributed. Some partners can contribute the infrastructure by way of a place to locate the office, furniture and equipment or others in terms of venture capital. The initial investment for such a partnership to take off may not exceed Rs 4 to 5 lakh. The challenge is to get like-minded persons who can agree on basic things in running an organization with joint efforts and share the income equitably without getting into quarrels on little things. An agreed code of conduct for partners may be helpful.
Law is a competitive profession, almost entirely in the private sector. There is abundant work available though all are not equally paying. This is because of inequalities in society and the widely varying paying capacity of litigants. It is not uncommon even today for litigants paying fees by way of paddy, vegetables, labor etc. in rural areas. Young lawyers have to realize the social reality and learn to grow incrementally in the profession as it has been so for centuries in this country.
The question is often asked how young lawyers, if they start on their own in the districts, will get cases? The answer is obvious; it will happen the way any individual initiative grows in the community, be it doctors or traders. Of course, honest and competent work never fails to pay dividends in any sector. Initially, it may be legal aid cases minimally paid or legal questions of NGOs, local bodies or of small private enterprises in the locality. When credibility is established even senior advocates, government departments, bigger companies and banks refer work for legal services on handsome payments. If ADR wing is competently organized, even courts refer cases for negotiated settlements. I have personal knowledge of many such initiatives succeeding in the profession within as short a period as two years. Unfortunately, some vested interests spread the canard that the profession is over-crowded and dissuade youngsters with enterprise to look for lowly paid jobs in preference to legal practice. The prevailing mind-set is also in favor of acquiring a secure job with Government or the private corporate sector and not to take risks by starting on one's own in the profession in which one is educated and trained. The diffidence is partly the result of the inadequate quality of education offered by law schools and the lack of proper counseling to the students while in college or when they are enrolled to the Bar. The greatest reward for the lawyer is the freedom and status he enjoys and the compliments he receives from satisfied clients. The Finishing School should endeavor to change the prevailing mindset of young law graduates and enable them to start on their own.
Judicial and Civil Services
For those who do not want to take risks by starting practice on their own and are happy with secure jobs under Government, the judicial and civil services examinations held annually in every State and at the Centre offer opportunities. The judges strength are expected to increase five-fold in the coming years and fresh law graduates without long experience at the Bar are now eligible to take the judicial services examination held frequently by High Courts. The emoluments and service conditions in judiciary are now more attractive than that of civil servants. The Finishing School experience might help the aspirants in this sector as well.
Law Teaching and Research
Every law school in the country finds it hard to get competent law teachers and nearly one-third of faculty positions in law colleges and universities remain vacant. Again, the issue is one of competence and aptitude for which only those who are seeking legal careers have to prepare themselves. A mind set based on crutches of reservation and influence is spoiling the capacity for hard work on the part of younger generation. It is a dangerous sign for the knowledge society of the 21st century India which is expecting to reap rich benefits of its demographic advantage. We need a Finishing School of a longer duration, say one year, to overcome these deficits in the existing scheme of legal education.
Journalism, politics, social work and law-related business such as legal process outsourcing, research and publication are other career options open to law graduates. In fact, legal education, properly organized is a wholesome education for a variety of tasks in society, government and private corporate sector. It is also education for responsible citizenship in a democracy.
Legal Skills and Professionalism
It is difficult to list all the skills that a legally trained person ought to possess in order to succeed in the profession. Even the best of law schools do not give adequate training on basic skills such as legal research and writing, interviewing and counseling, negotiation, mediation and arbitration, trial advocacy and law office management. On training in professionalism and ethics, less said the better.
In the past, law graduates were mandatorily required to be an apprentice with a senior lawyer for over a year to learn the basic skills of lawyering and client/office management. Following the apprenticeship, aspiring lawyers were required to pass a tough Bar Council-conducted examination on procedural subjects and only on successful completion of the test, law graduates were allowed to enroll as advocates. The system was given up because of agitation from law students and young law graduates and today they are the sufferers for having forced such a retrograde decision. The Finishing School for law students is therefore a welcome development as it can give at least some of the essential skills and information not ordinarily given by law schools. Perhaps there is no other country in the world today which allows poorly educated law graduates to become professional lawyers without any kind of screening to test basic competence to handle the rights of others.
The profession is in the threshold of wide-ranging changes some of which are the consequence of technological developments and globalization. Today the profession is a monopoly statutorily empowered to manage itself. Unless lawyers themselves initiate the changes, it is not easy to organize the desired reform necessary to put the profession in the forefront of public service and governance. The future of the profession is in the hands of the younger members of the Bar who need to 'educate, organize and agitate', to use the words of Dr Ambedkar if they wish a bright future for themselves and to the profession to which they claim to belong.
Courtesy: Centre for Public Policy Research
Image (c) Gettyimages.com
More by : Prof. Dr. N. R. Menon