Bill that will allow foreign law firms through back door

By Manoj Kumar, IANS,

Relatively unnoticed amid the scams and agitations haunting the government, Law Minister Salman Khurshid set a time bomb ticking. Earlier this month, exactly 50 years after the Advocates Act, a bill was placed by the minister, a legal practitioner himself, for wide consultations that seeks to set up a new regulatory authority for the profession.

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Called the Legal Practitioner (Regulation and maintenance of Standards in Professions, Protecting the Interest of Clients and Promoting the Rule of Law) Bill, 2010, it was drafted during the tenure of Khurshid’s predecessor M. Veerappa Moily and envisages a parallel watchdog, alongside the Bar Council of India (BCI).

In effect, the bill seeks to hand over controls of the entire judicial delivery system to a body, unrepresented by its stakeholders. What purpose will be served by creating such a parallel machinery, instead of strengthening the bar councils themselves, is writ large on the bill.

For one, the regulator will discharge the same functions and objectives for which the bar councils were set up — to deal with complaints of misconduct, formulate code of conduct of lawyers and provide legal aid to the poor.

The objectives and scope of bar councils are similar: Protect and promote the interest of the clients, encourage ethical obligations of lawyers with a strong sense of duty toward courts and tribunals where they appear and create legal awareness among the public and clients of their legal rights and duties.

Thus, the new watchdog will arrogate for itself these functions, core to the functioning of these councils. But Khurshid also seeks to do what is otherwise not allowed or explicitly banned under the Advocates Act — that is, allow the practice of the profession of law outside the defined scope.

The act says that there shall be only one class of persons entitled to practice law, directly or indirectly, namely, advocates. The term “advocate” as defined, means those entered in any role under the provisions of the Advocates Act.

The bill, however, also lists nine classes of legal professionals who do not purportedly constitute practicing of law under the act. These are: Qualified lawyers who are not practicing advocates, those doing legal services in their chambers, qualified lawyers engaged in drafting and conveyancing, income-tax practitioners, sales-tax practitioners, practitioners in revenue courts, customs clearance agents, customs and immigration law practitioners, trademark attorneys and patent attorneys. The bill seeks to empower a legal services board to act as a regulator for these professional, and grant them licence to practice law.

The bill also doubles the procedure for dealing with complaints against advocates by requiring an aggrieved client to go through the entire proceedings of completion of pleading, discovery of document, evidence and arguments, twice over — once under the proposed legislation and again under the Advocates Act.

The bill singles out lawyers enrolled under Advocates Act by making the directions of the board mandatory on the bar council, but non-mandatory on “other law professionals”. It also seeks to empower the board to determine and administer the terms and conditions of the practice of law, without even having a representative character, or being answerable to the advocates’ enrolment, that is granted under the Advocates Act.

A “consumer panel” of handpicked people chosen by the board to assist it will have “fair degree” of representation of existing and potential clients of practicing lawyers across India without the so called “clients” — yet unorganized and non-existent, neither as a body, nor as a class of professionals — having any say to elect or nominate members to the said panel.

Are we to see more or is it the complete picture: Of a complainant, then a government-appointed Ombudsman, a state-appointed consumer panel, a board to arm twist the bar, and a regulator to open up the practice of law to persons not registered under the Advocates Act.

This will also clearly be a move for back-door entry for various classes of foreign law firms into the country — a move which the Bar Council of India has resisted vigorously. It also indirectly defeats the legislative mandate that only an advocate can practice law in India — directly or indirectly.

(18-08-2011 – Manoj Kumar is joint general secretary of the Society of Indian Law Firms and managing partner of Hammurabi and Solomon, a law firm and corporate advisory. He can be reached at [email protected])