Legal Profession in India Chapter Notes | Revision Notes for CUET Humanities Preparation PDF Download

Introduction

The roots of the legal profession in India can be traced back to the colonial era when Mayor's Courts were established in Madras and Calcutta in 1726.

• In 1846, the Legal Practitioners Act opened the doors for qualified and certified individuals of good character to join the legal profession, irrespective of their nationality or religion.
• Women were later allowed to enter the legal profession with the Legal Practitioners (Women) Act of 1923.
• The legal profession and education in India are regulated by the Advocates Act of 1961, overseen by the Bar Council of India (BCI).
• Since the late 1980s, the BCI has initiated reforms in legal education, resulting in the establishment of 17 national law schools and several modern law schools employing contemporary teaching methods.
• Presently, India boasts the second-largest population of lawyers globally, with over 1.25 million lawyers.

History of the Legal Profession in India 

• The legal profession in India has its roots in the establishment of Mayor's Courts in 1726 and 1753, where legal practitioners lacked formal legal training.
• In 1774, the Supreme Court of Judicature was founded in Calcutta, with the power to approve, admit, and enroll Advocates and Attorneys.
• Admission of Attorneys required a recommendation from England or a Judge in India, making the Calcutta Supreme Court predominantly accessible to British Barristers, Advocates, and Attorneys.
• Bengal Regulation VII in 1793 formalized the legal profession in the Company's Courts, permitting only Muslims and Hindus to be enrolled as pleaders.
• The Legal Practitioners Act of 1879 unified six categories of legal practitioners into a single system.
• In 1923, the Indian Bar Committee was established to address disparities in the legal profession and recommended the creation of Bar Councils for each High Court.
• The Indian Bar Councils Act passed in 1926 by the Central Legislature, established Bar Councils and streamlined regulations governing the legal profession.
• The Advocates Act of 1961 was enacted to regulate the legal profession and delineate the rights and duties of Advocates.

Classification of Lawyers: Roles and Functions 

• Attorneys: Originally, "attorneys" referred specifically to British attorneys or solicitors. However, the term has evolved to include advocates in contemporary usage.
• Solicitors: In the past, solicitors in India were British lawyers permitted to practice in the High Courts. Today, within the Bombay and Calcutta High Courts, solicitors are a distinct group of legal professionals responsible for preparing legal cases but are not authorized to represent them in court.
• Barristers: During the era of British India, barristers held a prestigious position within the legal profession. They were the only ones allowed to practice on the Original Side of the Calcutta High Court. In contrast, other High Courts eliminated the distinction between barristers and vakils.
• Advocates: Historically, law graduates who did not fulfill the criteria to become a vakil, along with non-law graduates who passed the High Court's pleadership examination, were granted certificates to work as advocates in lower courts. These advocates could enter the High Court only after gaining a certain level of experience. However, this category of legal practitioners is no longer present in the Indian judicial system.
• Vakil: Vakils were Indian legal practitioners authorized to represent clients in the High Courts prior to India's independence. To become a vakil, law graduates had to meet specific criteria outlined by the Legal Practitioners Act. The role and significance of vakils have evolved within the current legal framework of India.
• Mukhtars: Mukhtars were legal practitioners in lower courts who successfully passed an entrance examination and mukhtarship exam conducted by the High Court. Their primary focus was on handling criminal cases in rural areas, although they had the right to practise in all subordinate courts. However, they were prohibited from appearing in civil cases within the lower courts.
• Revenue Agents: Revenue agents were authorized to practise law in revenue offices and sub-offices, as specified in their certificates issued under regulations established by the Chief Controlling Revenue Authority.
• Advocates: Previously in India, the term "advocates" was limited to barristers from England, Ireland, and Scotland who had the privilege to practise in the Supreme Court of Judicature in Bengal. In the present context, advocates refer to any qualified lawyer duly authorized to represent clients in legal matters and enrolled with a state Bar Council. Advocates may attain designations such as Senior Advocates or Advocate on Record (AOR) by passing a qualifying examination. A Senior Advocate is restricted to arguing cases in court based on instructions from another advocate and is not permitted to file documents. AORs are responsible for managing all procedural aspects of a case, accountable to the Supreme Court, and fulfilling a role akin to that of a solicitor.

The Advocates Act, 1961

• The Advocates Act of 1961 in India unified all legal practitioners under the term "Advocates."
• It established the All India Bar Council and State Bar Councils to oversee the admission of law graduates and address misconduct cases.
• To qualify for enrolment, individuals must be citizens of India with an LLB degree and pass the All India Bar Exam.
• The act recognises only Advocates as practitioners who can work in any court in India, including the Supreme Court.
• Senior Advocates can be appointed by the Supreme Court or High Court based on their skill, experience, and reputation.
• 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. 

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Advertising by Lawyers

• Advertising by lawyers raises important questions in legal ethics and professionalism. In India, the Bar Council strictly regulates lawyer advertising, allowing only a limited amount of information on a lawyer's website with prior approval.
• In contrast, the USA permits lawyer advertising with certain restrictions, such as avoiding false information and adhering to no-solicitation periods.
• Different states in the USA have varying rules, guided by the Model Rules of Professional Conduct.
• While advertising by lawyers is prevalent in the USA, including personal injury ads, it is often met with scepticism in India.
• The debate over lawyer advertising involves balancing the public's need for information about legal services and rights against the risk of lawyers misusing advertising techniques, which could undermine the profession's credibility.

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. Programme: Requires a prior undergraduate degree.
• 5-Year Integrated Programmes: Available directly after secondary school.

Institutions:

• Number of Law Colleges: Over 900 in India.
• National Law Schools: There are currently 17, 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 have 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 the National Law School of India University (NLSIU) in 1987 was a significant moment in improving legal education in India, setting a new standard for legal training.

1. Litigation: Graduates can work as advocates in courts by either training 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, from small boutique firms to large full-service firms, each with different specializations. They may focus on specific areas such as Intellectual Property Rights and Tax law, while mid-sized and large firms often have diverse practice groups including 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 business transactions, drafting contracts, assisting in negotiations, and ensuring successful transaction execution. Corporate lawyers also handle regulatory compliance matters.
• Legal Process Outsourcing (LPOs): LPOs manage a significant amount of international transactional work.

3. Corporate Sector: Many large companies have an in-house legal team to handle their legal matters efficiently. In-house counsel provide legal advice, have business expertise, ensure legal compliance, and consult external lawyers when needed. Various organisations like commercial banks, multinational corporations, investment firms, insurance companies, e-commerce ventures, and media houses employ law graduates to manage their legal matters.

4. Public Policy

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

5. Legal Research and Academia

• Opportunities: Graduates can join research centres, 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, particularly those focused on social justice, offer positions to law graduates. Opportunities range from legal aid to specialised 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 offer diverse roles.

8. Further Study

• Advanced Studies: Law graduates can pursue further studies in fields like Business, Economics, and Sociology. Options include LL.M degrees and research programmes 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 various career paths, including politics, legal journalism, civil services, fellowships like Teach for India, and other fields.

Liberalization of the Legal Profession 

• Ongoing discussions are focused on increasing foreign participation in the legal services industry of developing countries.
• India, having signed the WTO Treaty in the 1990s, is expected to open its legal services sector as part of global trade agreements.
• The Bar Council of India informally opposed foreign lawyers and law firms operating in India from 2002 to 2007.
• In 2011, the Bombay High Court ruled against foreign law firms opening offices in India following a petition from Lawyers Collective.
• However, the Madras High Court later allowed foreign lawyers to work in India for specific cases.
• The Law Commission of India expressed concerns in 1999 and recommended changes to the Advocates Act to support Indian lawyers.
• As of now, no final decision has been reached 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 United States, becoming a licensed lawyer requires passing the Bar Exam, which varies by state. The first-time pass rates for the Bar Exam differ significantly between states. For example, New York had a pass rate of 72% in 2009, California had 50% in 2010, and Massachusetts had 88% in 2008.
• Candidates must also meet the state's character and fitness requirements and fulfill continuing legal education (CLE) obligations. CLE programmes are ongoing training sessions that lawyers must complete to maintain their legal licenses.
• Most states require applicants to pass the Multistate Bar Exam (MBE) and the Multistate Professional Responsibility Exam (MPRE). Some states have additional requirements, such as the Multistate Essay Exam (MEE) and the Multistate Performance Test (MPT).

Foreign Lawyers and Practicing in the US

• To practice law in any US state, a law graduate must pass the state's Bar Exam and fulfill all other requirements.
• Some states may allow foreign-educated lawyers to take the bar exam, but the rules and qualifications vary by state.
• For example, in New York, which is more accommodating to foreign lawyers, they might be permitted to sit for the bar exam without needing to complete additional law school studies in the US.
• However, they may still be required to have their law degree evaluated by the American Bar Association.
•  New York and California are popular states for foreign lawyers to take the bar exam, partly due to the presence of many international law firms; however, the perceived difficulty of their exams can vary among candidates. 
•  In some states, foreign lawyers can work as Foreign Legal Consultants, but they cannot appear in court and can only provide advice on home country and international law. 

The American Bar Association (ABA)

• The American Bar Association (ABA) is a voluntary professional organization for lawyers in the United States, with over 400,000 members, making it the largest of its kind in the world.
• The ABA supports the legal profession by offering training, continuing education, and resources to enhance the justice system. It also accredits law schools, establishes ethical standards, and provides assistance to its members.
• Membership in the ABA is open to lawyers, law students, and individuals interested in legal matters.
• The ABA plays a crucial role in shaping ethical guidelines for lawyers, which are adopted by many state bar associations. It has developed the Model Code of Professional Responsibility and the Model Rules of Professional Conduct, which are used in 49 states and Washington D.C., with California being the exception.
• Since 1923, the ABA has been involved in accrediting law schools and publishes the ABA Journal, a respected international legal publication.

Regulation of Legal Profession by State Bar Associations

• In the United States, lawyers are regulated at the state level by either the state bar association or the highest court in the state.
• There are two main types of bar associations in the US: unified and non-unified.
• In states with a unified bar, such as California, Texas, and Florida, the state bar oversees the regulation of lawyers and provides support to its members.
• In contrast, states with a non-unified bar, like New York, Washington, D.C., and Illinois, have the state Supreme Court or the board of bar examiners responsible for regulating lawyers.
• In non-unified states, the state bar functions as a voluntary professional organization, engaging in activities such as professional development, lobbying, networking, and charity programs.

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.

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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 needs to 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. that is more competitive than the path to becoming a solicitor.
• Before taking the BPTC, students must complete 12 qualifying sessions at the Inn of Court and have done mini-pupillages and possibly some marshalling.
• After passing the BPTC, aspiring barristers must secure a pupillage for one year of training and then obtain tenancy in a set of barristers' chambers or work for an organisation that employs barristers.

Foreign Lawyers and Practicing in the U.K

• Outside England and Wales, lawyers can practice without any formal experience requirements from the SRA.
• Some firms may have their own requirements. Lawyers from EU Member States may need to meet additional conditions to practice in England and Wales after the UK left the EU.
• Lawyers can take the Qualified Lawyers Transfer Scheme to practice in England and Wales.
• In England and Wales, it is not allowed for an individual to hold the titles of both barrister and solicitor at the same time.

Legal Profession in other Countries 

France

• France has a legal profession comprising over 51,800 lawyers and notaries. These professionals are organized and regulated through 181 local bar associations across the country.
• The Paris Bar is the largest and most prominent bar association in France, with more than 21,000 advocates. Two key organizations that represent and oversee the legal profession in France are the Conférence des Bâtonniers and the Conseil National des Barreaux.
• Lawyers from other European countries, such as solicitors from England and Wales, have the option to register as European lawyers in France. They can also requalify by passing an equivalency exam set by the Conseil National des Barreaux.
• Foreign lawyers can practice in France under the Establishment Directive 98/5/EC. This directive allows them to offer legal advice on international law, the law of their home country, and French law.

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Germany

• In Germany, becoming a lawyer starts with a 4-year undergraduate degree in law, followed by a challenging First Examination that assesses legal knowledge. After passing this exam, aspiring lawyers undergo 2 years of practical training.
• Once they have completed both the First Examination and the practical training, graduates are qualified to work in various legal professions. However, to become a private attorney, they must apply to join a state branch of the Federal Chamber of Lawyers.
• Additionally, European attorneys can requalify to practice law in Germany by either working in the country for 3 years or by passing an equivalence exam. This process ensures that they meet the necessary qualifications for legal practice in Germany.

Singapore

• In Singapore, there is one legal profession known as "advocates and solicitors." The process of being admitted to the bar is governed by the Legal Profession Act and is assessed by both the Board of Legal Education and the Law Society of Singapore to ensure that candidates are suitable for the profession.
• Foreign lawyers are regulated by the Attorney-General's Chambers, which impacts their ability to practice law in Singapore.

People's Republic of China

• In China, students have the option to pursue a Bachelor of Laws ( LL.B.. degree immediately after completing secondary school. Alternatively, individuals holding a bachelor's degree in a different field can take the national judicial examination to qualify for legal studies.
• The core curriculum for legal education in China comprises 14 courses that cover a range of subjects, including legal theory, Chinese legal history, and various branches of law.
• To qualify as a lawyer in China, candidates must pass the national judicial examination, which is conducted annually, and complete a one-year internship with a law firm.
• Foreign nationals are prohibited from practising law in China. However, foreign law firms are allowed to establish representative offices in the country, where they can provide legal advice and represent clients in international cases, subject to specific conditions and restrictions.

Australia

• In Australia, the journey into legal education starts with a minimum of a 4-year Bachelor of Laws (LL.B.) degree, which may sometimes be combined with another degree.
• Many law schools offer both LL.B. and J.D. programs. After obtaining the LL.B., students must complete practical legal training (PLT) to gain admission as a lawyer in their respective state or territory.
• The admission process requires having an accepted law degree, a clean record of good character, and finishing the PLT. Lawyers then apply for practice certificates as either solicitors or barristers after passing the state bar examination.
• Although solicitors and barristers are distinct professions, they are often combined, with solicitors sometimes needing to meet the same criteria as barristers.
• Initial admission is usually restricted and requires oversight from a senior professional. While English law degrees are recognized, each state may impose additional requirements.

Women and the Legal Profession in India 

• Historically, the legal profession in India has been predominantly male-dominated. In 1916 and 1922, the Calcutta and Patna High Courts ruled that women were not eligible to be registered as legal practitioners.
• Progress was made with the Legal Practitioners (Women) Act of 1923, which permitted women to be admitted and registered as legal practitioners.
• Despite the increasing number of women entering the profession, gender bias persists, with 36% of women lawyers reporting experiences of bias in the workplace.
• Since 1962, only a handful of women have been designated as Senior Advocates. While there have been advancements in addressing gender-based disparities, significant challenges remain, particularly in the corporate law sector.