Legal Profession in India Chapter Notes | Legal Studies for Class 12 - Humanities/Arts PDF Download

Introduction

The legal profession in India has colonial roots and emerged with the establishment of Mayor's Courts in Madras and Calcutta in 1726. 

• However, it was not until 1846, through the Legal Practitioners Act, that the profession was opened to qualified and certified individuals of good character, regardless of nationality or religion. 
• Women were admitted to the profession later, through the Legal Practitioners (Women) Act of 1923. 
• The legal profession and professional legal education in India are regulated by the Advocates Act of 1961, which is overseen by the Bar Council of India (BCI). 
• The BCI has led the reformation of legal education in India since the late 1980s, resulting in the establishment of 17 national law schools and several other new generation law schools. 
• India has the second largest population of lawyers in the world, with over 1.25 million lawyers in 2014, following the United States.

History of the Legal Profession in India 

• The history of the legal profession in India starts with the establishment of Mayor's Courts in 1726 and 1753, where people practicing law lacked legal training. 
• In 1774, the Supreme Court of Judicature was established in Calcutta and empowered to approve, admit and enrol Advocates and Attorneys. 
• Attorneys were not admitted without recommendation from England or a Judge in India, making the Calcutta Supreme Court exclusive to British Barristers, Advocates and Attorneys. 
• In 1793, Bengal Regulation VII created a regular legal profession in the Company's Courts, enrolling only Muslims and Hindus as pleaders. 
• The Legal Practitioners Act of 1846 was the first pan-India law for the regulation of the Indian legal profession and abolished the religious test for enrolment as a pleader.
• In 1879, the Legal Practitioners Act consolidated all six grades of legal practitioners into one system. 
• In 1923, the Indian Bar Committee was appointed to address existing disparities in the Legal profession, and suggested the establishment of Bar Councils for each High Court. 
• In 1926, the Central Legislature enacted the Indian Bar Councils Act, which provided for the constitution and incorporation of Bar Councils and consolidated the regulations pertaining to the legal profession. 
• The Advocates Act of 1961 was enacted to provide for the regulation of the legal profession and to define the rights and duties of Advocates.

Classification of Lawyers: Roles and Functions 

• Attorneys: Attorneys previously only referred to British attorneys or solicitors but now this definition is sometimes used to refer to advocates.
• Solicitors:  Before the Advocates Act was established, solicitors in India referred to British lawyers who were allowed to work in the High Courts. Currently, in the Bombay and Calcutta High Courts, there is a distinct group of legal professionals called solicitors who prepare legal cases but do not represent them in court.
• Barristers: Barristers of England had come to occupy a predominant position in the legal profession in the British India . On the Original Side of the Calcutta High Court, only Barristers could practice even though the distinction between Barristers and Vakils had been removed by other High Courts.
• Pleaders: In the past, law graduates who did not meet the requirements to become a vakil in the High Court and non-law graduates who passed the pleadership exam held by the High Court were given certificates to work as pleaders in lower courts. They were allowed to enter the High Court only after gaining a certain amount of experience. There were also different levels of pleaders. This group of practitioners is no longer present in the Indian judicial system.
• Vakil: Vakils were Indian legal practitioners who could appear and work in the High Courts before India gained independence. To become a Vakil, a law graduate had to meet certain criteria set out in the Legal Practitioners Act. This category of practitioners no longer exists today.
• Mukhtars: Mukhtars were legal practitioners in lower courts who passed an entrance and mukhtarship exam held by the High Court. They were mainly restricted to criminal cases in rural areas, but were allowed to practice in all subordinate courts. They were not allowed to appear in civil cases in the lower courts.
• Revenue Agents: Revenue Agents were authorized to practice law in revenue offices and sub-offices specified in their certificates, under rules set by the Chief Controlling Revenue Authority.
• Advocates: The term "advocates" in India prior to the Advocates Act referred only to barristers from England, Ireland and Scotland who were permitted to practice in the Supreme Court of Judicature in Bengal. Today, the term refers to any qualified lawyer who is authorized to represent clients in legal matters and enrolled with a state Bar Council. An advocate may also be designated as a Senior Advocate or Advocate on Record (AOR) after passing a qualifying exam. A Senior Advocate is only allowed to argue cases in court based on instructions from another advocate and cannot file any documents. AORs handle all the procedural aspects of a case, are held accountable by the Supreme Court, and serve in a solicitor-like role.

The Advocates Act, 1961

• The Advocates Act, 1961 in India consolidated all legal practitioners into a single category of "Advocates." 
• The All India Bar Council and State Bar Councils were established to regulate the admission of law graduates and conduct cases of misconduct. 
• To be eligible for enrolment, one must be a citizen of India with an LLB degree and clear the All India Bar Exam. 
• There is only one class of practitioners recognized by the act, Advocates, who can practice before any court in India including the Supreme Court. 
• The Supreme Court or High Court can designate an Advocate as a Senior Advocate based on their ability, experience, and standing in the Bar. 
• The Advocate-on-Record is a separate category of Advocate in the Supreme Court.

The Bar Council of India 

• The Bar Council of India is a government body established by Parliament through the Advocates Act of 1961. 
• It serves as the regulator of the legal profession by setting standards for professional conduct, education, and disciplinary action. 
• It also protects the rights, privileges, and interests of lawyers, and provides financial support through welfare funds.

The Bar Council of India has several statutory functions that reflect its role as the regulator and representative for the legal profession and legal education in India. These functions include:

• Setting standards for professional conduct and etiquette for advocates
• Establishing procedures for disciplinary committees
• Protecting the rights, privileges and interests of advocates
• Promoting and supporting law reform
• Addressing matters referred by State Bar Councils
• Promoting legal education and setting standards in consultation with universities and State Bar Councils
• Recognizing universities for eligibility for enrolment as an advocate
• Conducting seminars and publishing journals and papers on legal topics
• Organizing legal aid for the poor
• Recognizing foreign qualifications in law for admission as an advocate in India
• Managing and investing Bar Council funds
• Providing for election of Bar Council members to run the councils.

Professional Duties of an Advocate

• An advocate in India has a professional duty to conduct themselves in a dignified manner, respect the court, avoid illegal behavior towards the opposition, and not accept clients who use unfair means. 
• They must also uphold the values of the profession. 
• The advocate also has a duty to accept briefs, maintain client confidentiality, not appear as a witness, not instigate litigation, and not negotiate directly with the opposing party. 
• Violating these rules can result in disciplinary action such as suspension or debarment. 

Advertising by Lawyers

• Advertising by lawyers is a controversial issue in legal ethics and professionalism. In India, advertising is strictly restricted by the Bar Council of India, with only 5 pieces of information allowed on a lawyer's website after approval from the council. 
• In the USA, lawyers have the right to advertise but subject to reasonable restrictions, such as no false or misleading information and no-solicitation periods. 
• Different states have different rules and the Model Rules of Professional Conduct serve as a reference. 
• Advertising by lawyers is common in the USA, including personal injury ads, but considered distasteful in India. 
• The issue of advertising by lawyers involves balancing the public's interest in getting information about legal rights and services and access to justice, with the potential misuse of advertising techniques by lawyers that could harm the credibility of the profession. 
• The position varies across different countries, with some being more flexible and others more regulated.

Opportunities for Law graduates

• Law is a thrilling and demanding field. 
• In India, individuals who have completed their law studies have numerous paths and chances awaiting them once they finish their education. 
• A legal education not only equips individuals with professional skills but also serves as a form of mental training that enhances analytical thinking and systematic communication.

Legal Education in India

Regulation: Legal education in India is overseen by the Bar Council of India.

Degree Paths:

• 3-Year LL.B. Program: Requires a prior undergraduate degree.
• 5-Year Integrated Programs: Offered directly after secondary school.

Institutions:

• Number of Law Colleges: Over 900 in India.
• National Law Schools: 17 currently exist, with plans for more.

Entrance Tests:

• Common Entrance Test (CLAT): Tests various subjects including logical reasoning, legal knowledge, and general knowledge.
• Other Tests: Some schools conduct their own entrance tests such as AILET and LSAT.
• Preparatory Institutes: Institutions like Law School Tutorials (LST) help students prepare for law entrance exams.
• Reforms: The establishment of NLSIU in 1987 marked the beginning of legal education reform in India.

1. Litigation: Graduates can work as advocates in courts by either apprenticing under experienced lawyers or joining litigation departments in law firms or companies to practice in Indian courts.

2. Law Firm Practice: Law firms come in various sizes and specializations. They can range from small boutique firms focusing on specific areas like Intellectual Property Rights and Tax law, to mid-sized firms, and large full-service firms with diverse practice groups such as corporate law, mergers and acquisitions, employment law, taxation, international trade, insurance, intellectual property, project finance, and infrastructure.

• Transactional Law: Involves working on commercial and economic laws, advising on commercial transactions, drafting contracts, assisting in negotiations, and ensuring successful transaction execution. Corporate lawyers also handle regulatory compliance matters.
• Legal Process Outsourcing (LPOs): LPOs handle a significant amount of international transactional work.

3. Corporate Sector: Large corporations often have an in-house legal team. In-house counsel provide legal advice, possess business expertise, ensure legal compliance, and engage external lawyers when necessary. Various organizations like commercial banks, multinational corporations, investment firms, insurance companies, e-commerce ventures, and media houses hire law graduates to manage their legal affairs.

4. Public Policy

• Role in Public Policy: Lawyers play a crucial role in formulating and advising on public policy. Various organizations hire law graduates for policy-making roles and offer fellowships for research positions.
• Examples: Law graduates can serve as Legislative Assistants under programs like the LAMP Fellowship by PRS Legislative Research, or work in government policy departments in law firms.

5. Legal Research and Academia

• Opportunities: Graduates can join research centers, think tanks, and universities for teaching and research roles. A postgraduate degree in Law or related fields is usually required for an academic career.
• Positions: Roles as lecturers, Assistant Professors, and visiting/adjunct professors are available in academia for law graduates.

6. Non-Governmental Organizations (NGOs)

• NGO Roles: NGOs, especially those focused on social justice, offer positions to law graduates. Opportunities range from legal aid to specialized areas like environmental law and consumer rights.

7. Government Institutions

• Government Opportunities: Law graduates can work in government departments, regulatory bodies, and public sector undertakings. Institutions like the National Human Rights Commission and Law Commission of India provide diverse roles.

8. Further Study

• Advanced Studies: Law graduates can pursue further studies in disciplines like Business, Economics, and Sociology. Options include LL.M degrees and research programs like M.Phil or Ph.D.

9. Judicial Services and Clerkships

• Judicial Roles: The judiciary offers various roles for law graduates, including clerkships and positions in the Indian Judiciary through examinations like the All India Judicial Services Examination.

10. Other Avenues

Law graduates can explore careers in politics, legal journalism, civil services, fellowships like Teach for India, and other diverse fields.

Liberalization of the Legal Profession 

• There is an ongoing discussion about allowing more foreign participation in the legal services industry in a developing country.
• India, after signing the WTO Treaty in the 1990s, is expected to open up its legal services sector as part of global trade agreements.
• The Bar Council of India has opposed allowing foreign lawyers or law firms to operate in India from 2002 to 2007.
• In 2011, the Bombay High Court ruled against foreign law firms setting up offices in India after a petition by Lawyer's Collective.
• However, the Madras High Court later allowed foreign lawyers to work in India for specific cases.
• The Law Commission of India highlighted concerns in 1999 and suggested changes to the Advocates Act to support Indian lawyers.
• Currently, there is no clear decision on this matter.

Legal Profession in USA

Legal Education

• In the US, to become a lawyer, students need to first complete a four-year undergraduate degree in any field, followed by taking the Law School Admission Test (LSAT). 
• Then they can apply to a law school to pursue a three-year Juris Doctor (J.D.) program. 
• The teaching methods used in law schools include studying case studies and using the Socratic Method.

Licensing Requirements

• In the US, each state has its own requirement for the mandatory Bar Exam, with differing first-time pass rates such as 72% in New York (2009), 50% in California (2010), and 88% in Massachusetts (2008). 
• To become a licensed lawyer, candidates must meet the state's criteria for character and fitness and comply with continuing legal education (CLE) requirements, which are ongoing training programs that lawyers must complete to maintain their license. 
• Nearly all states mandate the taking and passing of the Multistate Bar Exam (MBE) and the Multistate Professional Responsibility Exam (MPRE), with some states requiring additional exams such as the Multistate Essay Exam (MEE) and/or the Multistate Performance Test (MPT).

Foreign Lawyers and Practicing in the US

• To be eligible to practice law in a state in the United States, a law graduate must pass the state's Bar Exam and meet all other requirements. 
• Some states may allow foreign-educated lawyers to take the bar exam, but the laws and criteria for eligibility vary by state. 
• For example, in New York, which is more open to foreign lawyers, they may be able to sit for the bar exam without having to complete additional law school study in the US. 
• However, they may still be required to have their law degree reviewed and analyzed by the American Bar Association. 
• New York and California are popular states for foreign lawyers to take the bar exam due to the presence of many international law firms, and they are also known to be two of the most difficult bar exams to pass. 
• Foreign lawyers may also work as Foreign Legal Consultants in certain states, but they are not allowed to appear in court and can only advise on home country law and international law.

The American Bar Association (ABA)

• The American Bar Association (ABA) is a voluntary professional body for US lawyers with over 400,000 members, making it the largest such body in the world. 
• The ABA supports the legal profession through practical resources and improvements to the administration of justice, accredits law schools, establishes ethical codes, and serves its members. 
• Membership is open to lawyers, law students, and others interested in the law. 
• The ABA is responsible for creating and maintaining ethical standards for lawyers and has adopted the Model Code of Professional Responsibility and Model Rules of Professional Conduct in 49 states and D.C., with the exception of California. 
• The ABA has been accrediting schools since 1923 and publishes the ABA Journal, an internationally recognized publication.

Regulation of Legal Profession by State Bar Associations

• Lawyers in the US are regulated at the state level by the state bar or the state's highest court. 
• There are two types of bar associations in the US: unified and non-unified. In states with a unified bar, the state bar regulates lawyers and provides support to members. 
• In these states, membership is mandatory to practice law. There are 32 states with unified bars, such as California, Texas, and Florida. In states with a non-unified bar, the state Supreme Court or board of bar examiners is responsible for regulating lawyers. 
• In these states, the state bar is a voluntary professional organization with activities like professional development, lobbying, networking, and charity programs. Examples of states with non-unified bars are New York, Washington D.C., and Illinois.

Legal Profession in the U. K

Legal Education

• In the UK, the most common path to becoming a lawyer is to get a three-year LL.B. degree after secondary school. 
• Graduates from other fields can also become solicitors by completing a Legal Practice Course (LPC) and training contract. 
• To become a Barrister, one must complete the Bar Vocational Course (BVC) and secure a pupillage. 
• Barristers can appear in all courts, while solicitors can only appear in higher courts if they qualify to become solicitor-advocates. 
• In Scotland, the legal education is slightly different and a qualifying law degree is required to become a barrister or solicitor. 
• Non-law graduates can enroll in the Graduate Diploma in Law (GDL) or conversion course to become lawyers. 
• Law firms do not discriminate against non-law graduates when recruiting trainees.

Solicitors

• To become a solicitor in the UK, one must take the Legal Practice Course (LPC) after completing an LL.B. degree, which can be taken either full-time for a year or part-time for two years. 
• The LPC prepares students for a career in a law firm, and prior to this, students typically complete a vacation scheme at a law firm. 
• After the LPC, students must obtain a two-year training contract at a solicitors' firm. Solicitors are organized by the Law Society of England and Wales, which provides training, advice, and protects and promotes solicitors.

Barristers

• To become a barrister in the UK, one must have a first class degree and be a member of one of the four Inns of Court. 
• The bar exam is a one-year full-time or two-year part-time course (BPTC) which is more competitive than becoming a solicitor. 
• Before the BPTC, students must complete 12 qualifying sessions at the Inn of Court and have completed mini-pupillages and possibly some marshalling. 
• After successfully passing the BPTC, prospective barristers must obtain pupillage for one year of training and then obtain tenancy in a set of barristers' chambers or work for an organization that employs barristers.

Foreign Lawyers and Practicing in the U.K

• Outside England and Wales lawyers can still practice, with no formal experience requirements from the SRA. 
• Some firms may have their own requirements. Lawyers from EU Member States can practice at the same level as in their home country. 
• Lawyers can take the Qualified Lawyers Transfer Scheme to practice in England and Wales. It is not possible to be a barrister and solicitor simultaneously.

Legal Profession in other Countries 

France

• In France, there are over 51,800 lawyers and notaries who regulate their own profession through 181 local bar associations. 
• Paris Bar is the most influential bar with over 21,000 advocates, while the Confprence des Bktonniers and Conseil National des Barreaux are representative and national bodies for the French bars. 
• European lawyers, including solicitors of England and Wales, can register as European lawyers in France and may requalify by sitting the equivalent exam administered by the Conseil National des Barreaux. 
• Foreign lawyers can also practice in France under the Establishment Directive 98/5/EC, which allows them to give advice in international, their home country, and French law.

Germany

• In Germany, legal education requires a 4-year undergraduate degree followed by a comprehensive First Examination that focuses on academic knowledge of the law, and then a 2-year practical training period. 
• Once both exams are passed, students are qualified to work in any legal profession, but to practice as a private attorney they must apply to join a state branch of the Federal Chamber of Lawyers. 
• European attorneys may requalify either by practicing in Germany for 3 years or by sitting an equivalence exam.

Singapore

• In Singapore, there is a single legal profession known as 'advocates and solicitors', and admission to the bar is governed by the Legal Profession Act and determined by the Board of Legal Education and the Law Society of Singapore for fitness of character. 
• Foreign lawyers are regulated by the Attorney-General's Chambers.

People's Republic of China

• In China, students can complete an LL.B. directly after secondary school or if they hold a bachelor's degree in another field, they can sit for the national judicial examination. 
• The national core curriculum covers 14 courses including legal theory, Chinese legal history, and various areas of law. 
• To practice law in China, one must pass the annual uniform national judicial examination and complete a one-year internship with a law firm. 
• Foreign nationals cannot practice law in China but foreign law firms can establish a representative office to provide legal advice and represent clients in transnational cases, with certain conditions and restrictions.

Australia

• In Australia, legal education starts with a minimum 4-year Bachelor of Laws (LL.B.) degree, sometimes combined with a post-secondary degree. 
• Some top law schools now offer only the 3-year J.D. degree. After the LL.B., students must complete practical legal training (PLT) and obtain admission as a lawyer in the state/territory. 
• This requires possession of a recognized law degree, good character, and completion of PLT. Lawyers then apply for certificates of practice as solicitors or barristers (after passing the state bar exam). 
• Although there is a distinction between solicitors and barristers, the professions are largely fused, and in some cases, solicitors must meet the same requirements as barristers. 
• Initial admission is usually restricted with supervision by a senior practitioner. English law degrees are recognized but may have additional requirements by each state.

Women and the Legal Profession in India 

• In India, the legal profession was traditionally male-dominated. In 1916 and 1922, the Calcutta and Patna High Courts ruled that women were not eligible to be enrolled as legal practitioners. 
• However, the Legal Practitioners (Women) Act of 1923 provided for women to be admitted and enrolled as legal practitioners. 
• Despite the increase in the number of women entering the profession, gender bias still exists, with 36% of women lawyers reporting facing gender bias in their work. 
• There have only been 5 women Senior Advocates since 1962, but gender-based disadvantages are being gradually eliminated, particularly in the corporate law sector.