THE LEGAL PROFESSION WORLDWIDE

Overview of the Legal Profession in India

By Amal Kumar Ganguli, Co-Director of National and Regional Activities

A. INTRODUCTION

Though federal in structure, the unitary character of India under its Constitution has
influenced the country to have a unified bar. The pre-constitutional legal framework
had to undergo a transformation in the backdrop of the struggle by the people of India
to achieve its freedom from the colonial rulers and the eventual adoption of a
democratic, republican Constitution.
The Indian legal profession is one of the largest in the world, with over 1.4 million
enrolled advocates nationwide. The estimated total value of the Indian legal market
as of 2010 was approximately USD 1.25 billion. The legal profession, evolving as it has
done from colonial India, has undergone a huge transformation since its independence.
The efforts of the members of the bar to achieve excellence in all spheres of their
practise through stiff competition is not only apparent in their every dealing with newer
challenges due to technological and other developments, but also in the recognition
earned by them in a globalized world. Historically, the members of the bar have
provided leadership at a national as well as international level. The current potential is
much higher.
B. LEGAL PROFESSION IS REGULATED BY ADVOCATES ACT, 1961

The Advocates Act of 1961 amended and consolidated the law relating to legal
practitioners and provided for the constitution of the State Bar Councils and an All-India
Bar - the Bar Council of India as its apex body. The Bar Council of India is comprised of
the Attorney General of India and the Solicitor General of India as its ex officio
members, as well as one member elected from each of the State Bar Councils. The
members of the State Bar Councils are elected for a period of five years. Some main
functions of the Bar Council of India are:
(1) To lay down standards of professional conduct and etiquette for advocates;
(2) To lay down the procedure to be followed by its disciplinary committee and the
disciplinary committee of each State Bar Council;
(3) To promote and support law reform;
(4) To promote legal education and to lay down standards of such education in
consultation with the Universities in India imparting such education and the State Bar
Councils;
(5) To organise legal aid to the poor in the prescribed manner;
(6) To recognise on a reciprocal basis foreign qualifications in law obtained outside
India for the purpose of admission as an advocate in India.

The Bar Council of India is led by a Chairman and a Vice-Chairman, who are elected
from amongst the members of the Council for a period of two years.

Each of the States in India has a State Bar Council. Each of the State Bar Councils has a
varying number of members depending upon the numerical strength of
advocates on its rolls, who are elected to the membership of the State Bar Council in
accordance with the system of proportional representation by means of a single
transferable vote amongst advocates on the electoral roll of the respective State Bar
Council. In the case of an electorate not exceeding five thousand members, the State Bar
Council shall consist of 15 members, while in the case of an electorate exceeding five
thousand but not more than ten thousand, the strength of the Council shall be twenty
members. If the electorate exceeds ten thousand, the strength of the Council shall be
twenty five members. Additionally, each of the State Bar Councils counts their
respective Advocate Generals as ex officio members. Each State Bar Council is headed by
a Chairman, who is assisted by a Vice-Chairman and Secretary.
C. ROLE OF BAR COUNCIL OF INDIA AND STATE BAR COUNCILS

(1) Rules on Professional Standards

The Bar Council of India lays down rules pertaining to standards of conduct and
professional etiquette to be maintained by lawyers in court, with clients and opponents,
and towards fellow advocates. Disciplinary proceedings against those who violate the
rules are initiated by the Disciplinary Committee of State Bar Councils, and the Bar
Council of India acts as an appellate authority for the same.

(2) Legal Education

The Bar Council of India is responsible for thepromotion of legal education and lays
down the standards of legal education in consultation with universities. The Bar
Council approves centres of legal education, and also prescribes types and standards of
courses of study, eligibility for admission, infrastructure requirements and course
structures. The Bar Council also visits and inspects these centres of legal education as
part of its statutory functions.
The Bar Council was also responsible for kick-starting the next level of evolution in legal
education in the country through the founding of the first National Law School of India
University in Bangalore. The establishment of this premier law school has brought
about a paradigm shift in teaching of and research of law. Students from the National
Law Schools set up in different parts of the country have shone at the international
stage through winning prestigious moots such as the Philip C. Jessup International Law
Moot Competition and the Willem C. Vis International Arbitration Moot Court
Competition. Alumni of the National Law Schools have gone on to join top law firms in
the world, and also important bodies such as the United Nations, the Permanent Court
of International Arbitration, the World Bank and the World Trade Organization, to name
a few.
The Bar Council of India also initiated the All India Bar Examination from the year 2010,
which is a compulsory examination for all law graduates seeking enrolment as
advocates. This has been undertaken by the Bar Council to raise the standards of the
bar, and encourage legal education.

(3) The Bar Council of India Trust

The Bar Council of India Trust is a public charitable trust which aims to further legal
research and education. The Trust publishes a quarterly journal known called the
‘Indian Bar Review’. It also conducts a national moot court competition, and various
seminars and workshops as part of its continuing Legal Education Programme. A
Fellowship and Placement Scheme for junior lawyers to render financial assistance to
the best candidates was initiated and is being continued by the Trust.

(4) Bar Associations

Apart from the Bar Council of India and the State Bar Councils, almost every court in the
country has Bar Associations of advocates that operate at a less formal level. These bar
associations look after the welfare of advocates, represent their interests, and conduct
numerous social and cultural activities of the bar, or even different sections of the bar.
The Supreme Court Bar Association and the Supreme Court Advocates-on-Record
Association is an example of two of the associations that thrive side by side.
D. CLASSES OF PRACTICIONERS

(i) Individuals: Senior Advocates and Advocates

Advocates are divided into two classes – Senior advocates and other advocates.
Lawyers can be designated as senior advocates by the Supreme Court or any of the 21
High Courts. Advocates are designated as Senior advocates with their consent, if the
Supreme Court or High Court is of opinion that by virtue of their ability (standing at the
Bar or special knowledge or experience in law) they are deserving of that distinction.
Only 1% of the lawyers constitute this elite group of senior lawyers who wield
exemplary influence in the profession. Senior advocates enjoy priority of audience. A
senior advocate designated by one court is recognized as a senior in other courts as
well. It is only the Senior Advocates who have a combined seniority roll maintained by
the Bar Council of India. Senior advocates have certain restrictions placed upon them by
the Advocates Act, 1961 and the Bar Council of India. They cannot appear without a
separate “briefing” advocate (or, in the Supreme Court, an Advocate on Record). Seniors
are foreclosed from drafting pleadings and conveyances or taking evidence (Bar Council
of India Rules 2009, Part 6, Ch. 1). A Senior advocate is not allowed to accept any
brief directly from a client. The reasons for these restrictions are to enhance
opportunities for the younger members of the bar, as well as enable the senior members
of the bar to spend their time profitably on research and academia.

(ii) Law Firms – From a Solicitors Practise to the Modern Corporate Sector
Law firms were always present in India, but were restricted mainly to the Metropolitan
cities of Bombay, Calcutta and Madras before India’s Independence in 1947. These cities
had firms of solicitors, as well as attorneys. The dual-system of classification between
solicitors and attorneys was abolished in 1970 with uniform enrolment as advocates,
but in Bombay and Calcutta the system of dual license is still followed, and examinations
are still conducted for persons who wish to qualify as solicitors, upon the completion of
a three year training period in a solicitor’s office as an ‘article clerk’ and the passing of a
solicitors’ exam.

With the opening up of the economy, there arelaw firms in almost every city in India.
Major law firms have their presence in every State and city with a High Court, as well as
in commercial centres throughout the country. The law firm segment has been the most
touched by globalization and has seen tremendous growth, contributing heavily to
transactional and litigation work. They also attract the best talent from law schools in
India.
The impact of globalization necessitatedrecognition of Limited Liability
Partnerships(LLPs) to enable the law firms to meet the new challenges. In 2008, the
Limited Liability Partnerships Act was passed which recognizes law firms with more
than 20 partners and enables them to limit their liability.

(iii) The Focus on Litigation Practice

Despite the emergence of the National Law Schools and rising standards in legal
education,there are still not enough litigating lawyers to keep up with the
demands of India’s burgeoning population. There is a lot of potential for the further
growth of the bar. The concentration of advocates and law firms is mostly in the big
cities. In towns, urban areas and in villages the advocates are mostly involved in private
practise. There are also some distinctive features of the Indian legal profession which
perhaps are quite surprisingly similar to those of the pre-independence era and perhaps
make it unique, which Marc Galanter finds in his article entitled ‘The Indian Legal
Profession in the Age of Globalization’ (2012). These features form the core structure of
the legal profession in India:
(a) Individualistic approach - Lawyers mostly practise by themselves i.e. they have
their own chamber/office assisted by clerks and a few juniors depending upon their
seniority. And in case of the law firms, most of them are not oriented towards litigation.
(b) Most of the lawyers are oriented towards courts. So if an advocate practises at
Delhi High Court, most of his time will be dedicated to this particular court. Even though
these days, some of the lawyers have started flocking to other courts, but such cases are
restricted to a few lawyers only.
(c) Courtroom advocacy continues to remain the central point of the profession.
More focus is laid on the oral arguments made before the court than written
submissions. It reflects the dominance of the English barrister model in the Indian bar
and, with the kind of prevalent remuneration structure, it only reinforces its dominance.

(iv) The Shift Away from Litigation to Corporate Law Firms

The trend in recent times has seen the law graduates from prestigious law schools
gravitating towards the law firms and companies, rather than litigation. The
reasons for this may be because young lawyers in litigation do not earn as much at the
outset, as compared to their counterparts in law firms who are paid handsomely.
Furthermore, the gestation period for a litigating lawyer is quite long when compared to
careers at law firms and companies.
E. ETHICS

In India the legal profession, to this date, is considered a noble profession and thereby
still assessed by standards of legal ethics that may seem outdated in many other
jurisdictions abroad, but are considered a very important part of the legal profession in
India, despite the change in thinking that liberalisation has inevitably brought. The Bar
Council of India still maintains strict standards with respect to the legal community. An
example of this is Rule 36 of the Bar Council of India Rules whereby the Indian Law
firms/ lawyers are not allowed to advertise their practise in the market. The
judiciary has acknowledged the substance of this restriction in various cases. That is not
to say that the Bar Council of India has been completely blind to the realities of
liberalisation, as would be evident from its decision to amend Rule 36 and add a proviso
allowing advocates to maintain websites about themselves or their law firms in order to
disseminate information, in order to enable people to make informed choices.
The Bar Council of India is progressively reviewing the ethical standards with the
demands of our time, in order to strike the best balance. Recently, the Bar Council in a
seminar on ‘Professional Ethics’ considered whether to reform standards of ethics and
professional conduct in India in order to better reflect the standards of the International
Bar Association, of which it is a member, and standards under the UIA Rules. Champerty
and contingency fee arrangements have always been illegal in India, and there is
nothing to suggest that there is any reason for changing such thinking in the near future.
F. FOREIGN LAW FIRMS

A seeming resistance to the entry of foreign law firms by the members of the bar is
primarily founded on reciprocity. The Indian Bar is not insulated from the impact of
globalization nor is it averse to competition. The expectation is only that the foreign
law firms are welcome in India on a similar reciprocal recognition of Indian
lawyers and law firms by other countries. The professional services sector in India
has already opened its doors to the foreign accountancy firms, engineering
multinationals and architecture firms. The legal profession cannot remain too far away.
India being a signatory to the General Agreement on Trade in Services (GATS), which is
an organ of the World Trade Organization (WTO), it is anticipated that it may soon
appreciate its obligation to open up the services sector to Member Nations. Legal
Services are included in the list of recognized services under GATS, which obligates
India to open the markets to the foreign law firms and foreign lawyers. Many members
such as the US, EU, Australia, Singapore, Japan, China, Switzerland, New Zealand and
Brazil have requested that India show its commitment to its obligations under the GATS.
These requests have also been reflected in the process of plurilateral requests which are
mostly for FLC’s in only corporate and international law. There is no such request to
practice domestic law in Indian courts. These requests are only for their engagement in
a consultative capacity. There are requests for commercial association between foreign
and local lawyers and firms on certain terms and conditions.

G. CONCLUSION

The Indian legal profession has grown over a short period of less than 50 years to
become the world’s largest branch of the profession. Within India, it is one of the
most influential professions having an involvement in the governance of the country. It
sufficiently reflects the diversity of Indian society, its social hierarchies and realities,
and yet performs efficiently in delivering justice to litigants through Courts, despite the
massive pressures that Courts and legal institutions function, given how unimaginably
overburdened they always are. The unitary structure of the Indian bar comes across
as a boon in this regard.
Due to globalization, the effects of the world economy are being felt, with foreign law
firms seeking entry into the Indian space and Indian law firms handling transactions
with global implications. At the same time, the core practise of law still revolves around
the courts in India, and the majority of the bar is involved in practise before the courts.
This produces a melting pot of ideas and opinions, and the result is a bar which is
evolving through reforms in legal education and ethics and at the same time, is fortified
by traditions that have stood the test of time. It is inevitable that as the nature of
legal services sought by the consumers of legal service change, with the inevitabilities of
liberalisation, the profession in India will evolve and rise to the challenges that they
raise. Continuing Legal Education (CLE) initiatives will need to be fostered. There is no
doubt that the legal profession in India will always work closely with all stakeholders
concerned to improve access to justice for all and help realise our Constitutional ideals
for people from all walks of life.