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Raising the bar for the legal profession -NR Madhava Menon
-The Hindu

Continued self-education is indispensable to honing the skills of lawyers in emerging areas of practice and to their social relevance in a changing world

The Indian legal profession has grown over a short period of less than 50 years to become the world’s largest and most influential in the governance of the country. At the same time, it reflects the diversity of Indian society, its caste structure, inequalities and urbanised delivery of services depending upon the market forces. Being a private monopoly, the profession is organised like a pyramid in which the top 20 per cent command 80 per cent of paying work, the middle 30 per cent managing to survive by catering to the needs of the middle class and government litigation, while the bottom 50 per cent barely survive with legal aid cases and cases managed through undesirable and exploitative methods! Given the poor quality of legal education in the majority of the so-called law colleges (over a thousand of them working in small towns and panchayats without infrastructure and competent faculty), what happened with uncontrolled expansion was the overcrowding of ill-equipped lawyers in the bottom 50 per cent of the profession fighting for a piece of the cake. In the process, being too numerous, the middle and the bottom segments got elected to professional bodies which controlled the management of the entire profession. The so-called leaders of the profession who have abundant work, unlimited money, respect and influence did not bother to look into what was happening to the profession and allowed it to go its way — of inefficiency, strikes, boycotts and public ridicule. This is the tragedy of the Indian Bar today which had otherwise a noble tradition of being in the forefront of the freedom struggle and maintaining the rule of law and civil liberties even in difficult times.

Professional competence

In the midst of such drift and mediocrity, the world around including the legal environment changed and opportunities for legally trained persons grew phenomenally, thanks to globalisation, technological revolution and economic liberalisation. The emergence of the National Law School movement and the Five-Year Integrated LL.B. programme attracted talented students who stormed into the legal market making a dent, though small, in the monopoly of the top 20 per cent. It gave hope to the rest of the middle and bottom segments of the professional pyramid that by playing the game with some professional skills, they too could penetrate the higher ranks which were largely reserved for the kith and kin of successful lawyers and judges so far. This is the context in which continuing legal education (CLE) is to be appreciated for professional development and better delivery of legal services.

There is as yet no organised system of CLE in the country. In the 1970s and 1980s, when the Bar Council of India Trust organised few CLE programmes, there were enthusiastic responses from all segments of the profession. Advocates paid the cost, suspended their practice and joined the residential courses around areas like criminal advocacy, constitutional litigation, matrimonial adjudication, commercial law practice, etc. The idea of specialisation in legal practice was well received and professionalism in management of client services appreciated. The issue of professional ethics on which advocates had no training whatsoever came to be acknowledged. More importantly, the CLE programmes inculcated a sense of public service as the hallmark of the profession and advocates sought to expand the public-interest litigation jurisdiction of courts to enlarge access to justice for the common man. In short, even a casual attempt to offer CLE has ignited the imagination of a large number of advocates on the relevance and usefulness of continuing education to hone their skills in emerging areas of legal practice and maintain their role as social engineers in the process of development. Over the years, this awareness has spread among the younger members of the profession though, unfortunately, there was no one to offer the CLE programmes relevant to the changing demands of the legal market.

CLE is also a measure of the accountability of the profession. The days of the general practitioner have gone and specialists have entered the scene. The competence of the legal practitioner is critical for clients and any dilution in the quality of services rendered is bound to be counter productive. CLE is the major instrument of all professions to ensure minimum competence in the delivery of services. It enhances professionalism, accountability and public respect for the profession. In short, CLE is indispensable for maintaining professional competence and its social relevance.

Competence or quality is the product of knowledge, attitudes, values, skills and ability to apply them for professional tasks. Legal education in colleges hardly teaches anything more than knowledge and that too inadequately. Some skills are acquired in early days of practice through observation and participation. CLE alone can possibly give the rest to provide competence to a young lawyer for whom professional bodies at present have no alternatives to offer. In the past, a year-long apprenticeship and a bar examination hopefully provided some insight into abilities, values and attitudes. They have been abolished and the new entrants are left to their fate!

What makes a professional

What are the elements of professional attitude? It has to do with sensitivity to professional responsibility, due diligence in handling clients’ affairs, loyalty to the profession, orderliness in management of tasks and commitment to quality in all circumstances. These are not inherited but learnt and cultivated. Continued self-education is the attribute of a professional.

Values too are learnt and cultivated by professionals by deliberate application of mind. Competent legal practitioners who have won public esteem have a keen sense of personal and professional ethics. Competence and its continued maintenance is itself a professional value. Integrity and honesty always pay in a profession. Respect for the rule of law is another value which no professional can ignore at any time. Obligation to serve the cause of justice or fight injustice is an abiding value of a legal practitioner. CLE can make value education a central focus of its programmes and help new entrants to the profession be aware of the role of values for professional competence. It is in the sphere of upgradation of knowledge particularly in emerging areas of legal practice where CLE can help the most. Knowledge is not just an awareness of rules; it includes comprehension, application, analysis, synthesis and evaluation. Good law colleges attempt to teach through clinical methods, application of knowledge to solve problems through analysis, synthesis and evaluation. In India such colleges are few. There are very few teachers trained in clinical teaching methods. Therefore, there is a tremendous vacuum in professional training which is waiting to be addressed through CLE.

Finally, professional competence in the field of law is the outcome of skilled application of knowledge in which proper skills are decisive to the outcome. These include interviewing and counselling skills, negotiation and mediation skills, research and writing skills, communication and advocacy skills, drafting skills, fact gathering and articulation skills, time and stress management skills, etc. all of which can be acquired through supervised practice supported by guided theoretical learning. CLE is the best mechanism to learn skills particularly in the context of the explosion in knowledge and technology.

IBA-CLE Chair

For the first time in the history of legal education, the National Law School of India University, Bangalore, has established a Chair on Continuing Legal Education with support from the International Bar Association, the Ford Foundation and the Menon Institute of Legal Advocacy Training. A series of CLE programmes for lawyers and law teachers have been announced to help professional development and to enable law schools to set up CLE centres for institutionalising CLE at all levels of the system. While judges have their training academies in every State, the legal profession ended up with no provision for continuing education without which it is in danger of losing its competence to serve the complex demands of a developing society. This is what the Bangalore initiative on CLE is addressing though in a small way for the legal profession in India. Hopefully, in the next two or three years, a network of CLE institutions will come up around the country which will pave the way for enhancing the professional competence of advocates and thereby the quality of legal services in the country.

(Professor Menon was the Founder Director of the National Law Schools at Bangalore and Kolkata, and of the National Judicial Academy at Bhopal.)