Mansab Wadoo, District Court Complex, Srinagar
Impartiality must be built through open societies that share information. When there is information, there is enlightenment. When there is debate, there are solutions. When there is no sharing of power, no rule of law, no accountability, there is abuse, corruption, subjugation, and indignation. Anywhere, anytime ordinary people are given the chance to choose, the choice is the same: freedom, not tyranny; democracy, not dictatorship; the rule of law, not the rule of the surreptitious forces. The legal profession is the one profession where there is no shortcut to success. You will have to work hard to climb the stairs of success and fame. It will not be a cakewalk, but if you can endure the initial struggle, there is no profession as pleasing as the legal profession.
The legal ‘profession’ refers to lawyers, their training, licensure, ethical responsibilities, client obligations, and other practice-related matters. The profession is about the zealous, ethical representation of individual clients. Lawyers also enter into a social compact to represent society by defending the rule of law. Legal practice is the differentiated legal expertise, judgment, and skills possessed by some but not all lawyers. Parameter of the profession should ensure adherence to ethical and practice canons on behalf of individual clients and society at large. Legal practice was once synonymous with legal delivery. Law was about legal expertise and nothing else, so lawyers were well-suited to define and enforce practice standards. The global financial crisis and remarkable advances in technology changed the way goods and services are bought and sold. Even the insular, staid, conservative, self-regulated legal industry could not immunize itself from these powerful socio-economic forces. The post-crash, tech-enabled business community engaged in serious belt-synching and adopted a more with less mantra.
This impacted the delivery of legal services in several ways. Technology has played a significant role in altering legal delivery. Machines are not replacing lawyers, but technology is casting a bright light on what tasks require licensed attorneys, the expertise and level of experience needed, the appropriate provider, the resources, human and/or machine, they collaborate with, and the price. Many legal services have morphed into products, and delivery is about efficiency and measurable outcome, not labor intensity and hours billed or origination.
American Jurist and Judge Benjamin Cardozo in his lectures on The Nature of the Judicial Process observed that “The judge even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles.” As anyone who has been unexpectedly served with notice of a lawsuit can attest, dealing with a legal matter can be confusing, frustrating, and perhaps a bit scary. The practice of law requires attorneys to listen to the problems their clients are experiencing. Problems must be analyzed in light of the applicable legal principles, so the attorney can explain the client’s options going forward. A significant portion of the practice of law is dedicated to this exercise of providing legal advice, or “client counseling” as it is often called. Contract disputes, automobile accidents, medical malpractice, and other such cases often result in litigation, meaning the parties file a lawsuit and use the court system to settle their differences.
These matters are handled by attorneys who specialize in adversarial legal proceedings. Professional litigators are skilled at putting pressure on the opposing party as a means of achieving their client’s goals. They also know how to deliver persuasive arguments to trial judges, and how to win over juries by using the evidence to create empathy for their client and disdain for the other party. A large majority of the attorneys who appear in court on a regular basis are involved in the practice of criminal law. Prosecutors work on behalf of the government, pursuing justice against people who break the law. On the other side, criminal defense attorneys represent the accused. They work to protect the constitutional rights of their clients and to make sure the police do not overstep their bounds as they investigate wrongdoing. Much like civil litigators, criminal defense attorneys identify and attack weaknesses in the opposing side’s case, using the law to obtain the best result possible for their clients. The history of law is the working out of how the law has progressed and why it transformed. Legal antiquity is meticulously allied to the expansion of elaborations and is set in the wider framework of social antiquity.
Among definite jurists and historians of legal course, it has been seen as the recording of the evolution of laws and the methodological enlightenment of how these laws have evolved with the view of better understanding the origins of various legal concepts, some consider it a branch of intellectual history. Twentieth-century historians have viewed legal antiquity in a more contextualized manner more in line with the thinking of societal historians. They have beheld at legal institutions as complex systems of rules, players, and symbols and have seen these elements interact with society to change, adapt, resist or promote certain aspects of civic culture. Such legal historians have tended to analyze case histories from the constraints of social science inquiry, using statistical methods, analyzing class distinctions among litigants, petitioners, and other players in various legal processes. By scrutinizing case outcomes, transaction costs, number of settled cases they have begun an analysis of legal institutions, practices, procedures, and briefs that give us a more complex picture of law and society than the study of jurisprudence, case law and civil code can achieve. The development of the legal profession has received a lot of devotion from eminent scholars. This can be seen in Paul Brand’s “The Origins of the English Legal Profession”, and J.H. Baker’s “The Legal Profession and The Common Law – Historical Essays”. In Peter Coss, Thomas Wright’s Political Songs of England, the following verse occurs: “Attorneys in-country, they get silver for naught; They make men begin what they never had thought; And when they come to the ring, they hop if they can.
All they can get that way, they think all is won for them with skill. No man should trust them, so false are they in the bile.” A law endorsed in 204 BC barred Roman advocates from taking fees, but the law was widely overlooked. The ban on fees was eliminated by Emperor Claudius, who legalized advocacy as a profession and allowed the Roman advocates to become the first lawyers who could practice openly, but he also imposed a fee ceiling of 10,000 sesterces. This was deceptively not much money; the Satires of Juvenal complained that there was no money in working as an advocate. Like their Greek contemporaries, early Roman advocates were trained in rhetoric, not law, and the judges before whom they argued were also not law-trained. But very early on, unlike Athens, Rome developed a class of authorities who were learned in the law, known as jurisconsults. Jurisconsults were wealthy proletarians who dabbled in law as an intellectual hobby; they did not make their Principal living from it. They gave legal opinions on legal issues to all comers. Roman judges and governors would routinely consult with an advisory panel of jurisconsults before rendering a decision, and advocates and ordinary people also went to jurisconsults for legal opinions. Thus, the Romans were the first to have a class of people who spent their days thinking about legal problems, and this is why their law became so “precise, detailed, and technical.” During the Roman Republic and the early Roman Empire, jurisconsults and advocates were unregulated, since the former were proletarians and the latter were technically illegal. Any resident could call himself an advocate or a legal expert, though whether people believed him would depend upon his personal reputation. This changed once Claudius legalized the legal profession. By the surprise of the Byzantine Empire, the legal profession had become well-established, heavily regulated, and highly stratified. The centralization and bureaucratization of the profession were deceptively gradual at first but accelerated during the reign of Emperor Hadrian.
At the same time, the jurisconsults went into decline during the imperial period. In the words of Fritz Schulz, “by the fourth century, things had changed in the eastern Empire: advocates now were really lawyers.” For example, by the fourth century, advocates had to be enrolled on the bar of a court to argue before it, they could only be attached to one court at a time, and there were restrictions (which came and went depending upon who was emperor) on how many advocates could be enrolled at a particular court. By the 380s, advocates were studying law in addition to rhetoric in 460, Emperor Leo enforced a compulsion that new advocates seeking admission had to produce testimonials from their instructors; and by the sixth century, a regular course of legal study perpetual about four years was compulsory for admission.
Claudius’s fee ceiling lasted all the way into the Byzantine period, though by then it was measured at 100 solidi. Of course, it was broadly evaded, either concluded demands for maintenance and expenses or a sub rosa barter transaction. The latter was cause for expulsion. The notaries (tabelliones) appeared in the late Roman Empire. Like their modern-day descendants, the civil law notaries, they were responsible for drafting wills, conveyances, and contracts. They were ubiquitous and most townships had one. In Roman times, notaries were broadly considered to be inferior to advocates and jurisconsults. After the fall of the western Empire and the onset of the Dark Ages, the legal profession of Western Europe collapsed. As James Brundage has explained: “ no one in Western Europe could properly be described as a professional lawyer or professional canonists in anything like the modern sense of the term ‘professional.” However, from 1150 onward, a small but increasing number of men became experts in canon law but only in furtherance of other occupational goals, such as serving the Roman Catholic Church as priests.
From 1190 to 1230, however, there was a conclusive shift in which some men began to practice canon law as a lifelong profession in itself. The legal profession’s return was marked by the renewed pains of church and state to regulate it. In 1231 two French councils mandated that lawyers had to swear an oath of admission before practicing before the bishop’s courts in their regions, and a similar oath was promulgated by the papal legate in London in 1237. During the same decade, Frederick II, the emperor of the Kingdom of Sicily, imposed a similar oath in his civil courts. By 1250 the nucleus of a new legal profession had clearly formed. The new trend towards professionalization culminated in a controversial proposal at the Second Council of Lyon in 1275 that all ecclesiastical courts should require an oath of admission. Although not adopted by the council, it was highly influential in many such courts throughout Europe. The civil courts in England also joined the trend towards professionalization; in 1275 a statute was enacted that prescribed punishment for professional lawyers guilty of deceit, and in 1280 the mayor’s court of the city of London promulgated regulations concerning admission procedures, including the administering of an oath. In England, the charge at the door of lawyers has been regulated since the middle of the 13th century.
In the late 13th century, three critical regulations were adopted – (a) the Statute of Westminster I, chapter 29 (1275); (b) The London Ordinance of 1280; and (c) the Ordinance of 1292. During the medieval period, additional regulations were enacted, called the Statute. In addition, judges have always used their inherent power to control the admission of lawyers and check their misconduct which was appreciated on a higher scale. Now, one of the twisting circumstances, The lawyers were disqualified from the principal Inns of Court in the 16th century, and in 1739 they formed a professional group called “Society of Gentleman-Practicers in the Courts of Law and Equity”. Thus, the Law Society was born, though it was not until 1986 that the Law Society formed a committee to collect and draft principles of professional conduct. Now there exists the Guide to Professional Conduct of Solicitors reflecting the ideals of modern solicitors as well. Both twigs of the English legal profession had the same core duties over the centuries of litigation: fairness, competence, loyalty, confidentiality, reasonable fees, and service to the poor. Nicholas, in his prominent book, “Introduction to Roman law”, stated that the Roman jurists were not paid for their work, but were supposed to function due to a keen sense of public service. In Europe, lawyers were under an oath, which was an essence, a condensed code of legal ethics.
In France, lawyers had to take an oath which included a pledge of care, diligence, and an agreement to support only just causes. In France, the oaths were taken by ecclesiastical lawyers and the French legal tradition had a lasting influence even outside France in Switzerland and other parts of Europe. The concept of a lawyer as an “officer of the Court” arises from the Roman idea of a lawyer being an ‘advocates, who when called upon by the praetor to assist in the cause of a client, was solemnly reprimanded to “avoid artifice and circumlocution”.
The Legal Profession is an important limb of the equipment for the administration of justice. Without a well-organized profession of law, the courts would not be in a position to administer justice effectively as the indication in favor or against the parties to a suit cannot be properly marshaled, facts cannot be properly articulated and the best legal arguments in support or against the case of the parties cannot be put forth before the court. A well-organized system of judicial administration assumes a properly equipped and efficient Bar. As far as the Republic of India is concerned, the history of the legal profession in India can be outlined back to the formation of the First British Court in Bombay in 1672 by then Governor Aungier. The admission of attorneys was placed in the hands of the Governor-in-Council and not with the Court. Prior to the establishment of the Mayor’s Courts in 1726 in Madras and Calcutta, there were no legal practitioners. In the Charter of 1726, which established the Mayor’s Courts at the three Presidency Towns, no specific facility was made laying down any particular qualifications for the persons who would be entitled to act or plead as legal practitioners in these courts. Presumably, it was left to these courts to regulate this matter by rules of practice which these courts were authorized to frame. No change was effected in this position when a fresh Charter was issued in 1753. No systematized legal profession came into being in the Presidency Towns during the period of the mayor’s Courts. Those who practiced law were bereft of any legal training or any knowledge of the law. They had embraced the profession in the absence of whatever better to do. Quite a few of these so-called lawyers were the dismissed retainers of the Company.
The first concrete step in the direction of organizing a legal profession in India was taken in 1774 when the Supreme Court was established at Calcutta. The Regulating Act of 1773, empowered the Supreme Court to frame rules of procedure as it thought necessary for the administration of justice and due execution of its powers. Under CI.11 of its Charter, the Supreme Court was permitted to approve, admit and enroll such and so many Advocates and Attorneys-at-law, as to the Court shall deem fit. Attorneys of record were to be authorized to appear and plead and act for the suitors in the Supreme Court. The court was to have the power to remove any Advocate or Attorney on a reasonable cause. No other person whatever, but Advocates or Attorneys so admitted and enrolled, were to be permissible to appear and plead, or act in the Court for or on behalf of such suitors.
Thus the persons eligible to practice before the Supreme Court could be Advocates and Attorneys. The term “ Advocate” at the time extended only to the English and the Irish barristers and the members of the faculty of Advocates in Scotland. The expression “Attorneys” then meant only British Attorneys or Solicitors. As CI.11 of the Charter prohibited any other person whatsoever to appear and plead or act, it would appear that the Calcutta Supreme Court was, from its very inception, a completely exclusive preserve for members of the British legal profession, namely, the British Barristers, Advocates, and Attorneys. The home-grown Indian legal practitioner had no entry in this Court. The Charter of 1774 introduced the British system of legal practice in Calcutta. The parallel position obtained in the two other Supreme Courts at Bombay and Madras. Thus, in the three Supreme Courts, the only persons who were entitled to practice were the British Barristers, Advocates, and Attorneys. The Indians had no right to appear before these Courts. This continued to be the position all through the existence of these Courts. Thus, the two grades of the legal practice became separate and detached as they were in England. Remarking on the position prevailing at this time, the Supreme Court of India observed in Aswini Kumar Ghosh vs Arbind Bose: “Though the Supreme Court was given by the Charter Acts and the Letters Patent establishing them, the power to enroll advocates who could be authorized by the rules to act as well as to plead in the Supreme Courts, Rules were made empowering advocates only to appear and plead and not to act, while attorneys were enrolled and authorized to act and not to plead.
In the Sadder courts and the courts subordinate thereto, pleaders who obtained a certificate from those courts were allowed both to act and plead.” In 1861, legislation was passed by the British Parliament to establish High Courts at Calcutta, Madras, and Bombay. At this time, there were in existence three bodies of practitioners in the Supreme Courts and, the Sadar Adalats-Advocates, Attorneys, and Vakils. CI9 of the Letters Patent of 1865 of the High Court of Calcutta empowered the Court “to approve, admit and enroll such and so many Advocates, Vakils and Attorneys as to the said High Court shall deem fit.” These persons were “authorized to appear for the suitors of the High Court, and to plead or to act, or to plead and act for the said suitors, according to as High Court may by its rules and directions determine, and subject to such rules and directions.” CI.10 of the Letters Patent ran as follows: “the said High Court of Judicature at Fort William in Bengal shall have the power to make rules for the qualification and admission of proper persons to be advocates, Vakeels, and Attorneys-at-law of the said High Court and shall be empowered to remove or to suspend from practice, on reasonable cause, the said Advocates, Vakeels, or Attorneys-at-law; and no person whatsoever, but such Advocates, Vakeels or Attornies shall be allowed to act or to plead for on behalf of any suitor”. Similar provisions were made in the Charters of the High Courts of Bombay and Madras.
The admission of Vakeels to practice before these High Courts put an end to a domination which the Barristers had enjoyed in the Supreme Courts preceding the High Courts. This very much increased the practice and prestige of the Indian Lawyers by giving them opportunities however achieved without some struggle. The Commissioners appointed to arrange the merger of the Sadar Adalat and the Supreme Court had suggested that the proposed High Court benches be exclusively British and that the bar is open only to the Barristers. But, this suggestion was opposed by several persons on the ground that the exclusion of Indians would nourish class antipathies and injure “at once the state and the individual by depriving the public of the service of the ablest men, preventing wholesome competition, and unduly exalting some without reference to their personal merits and depressing others.” According to the rules framed by the Chartered High Courts, speaking broadly, there were three categories of legal practitioners: Attorneys, Advocates, and Vakils. Advocates were mainly the Barristers of England or Iceland or the members of the faculty of Advocates of Scotland. The Vakils were Indian Practitioners. To inaugurate with, on the Original side of the High Courts, only Advocates were entitled to appear and plead, on the instruction of Attorneys. On the original site of the High Court, solicitors, and Advocates remain distinct. This diversity in the role of legal specialists was continued under the notion that the High Courts, in the exercise of its Ordinary original Jurisdiction, was the successor of the Supreme Court. On the other hand, the Advocates were entitled both to act and plead on the Appellate Side of the High Court and its subordinate courts. This was because of the feeling that the High Court, on its appellate side, inherited the jurisdiction and powers of the Saddar Adalats Because of these discrepancies, the Vakils were not allowed to act or plead on the Original Side, but they could both act and plead on the Appellate Side.
The area of legal education is one where urgent steps need to be taken to ensure that law students receive sufficient training to deal with the rapidly evolving practice of law in India and abroad. It is well known that there are numerous shortcomings, including issues that are generic to the higher education space such as a teaching resources deficit, access to knowledge databases and accepted practices, lack of monitoring and evaluation, etc. While the top law schools in India have surmounted some of these problems, there is a clear divide between these law schools and the significant majority of law schools (and law students) that are struggling to ensure a basic level of competence in the legal profession. The law as a profession has evolved after thousands of years which, in no denial, is flourishing. Decided the various stages of development has it come to the place of gratitude and social acceptance! Globalization has had its own contribution to the development of law as a profession. But with globalization and the trend, arrival on the international for shortcomings have come to light which immediately needs attention and address. The immense populace growth and emerging native spheres have added to the growth of the profession and also to irreconcilable shortcomings. Immense walks made, there still is massive room for evolution and expansion of the profession. What is needed is a vision based on the way of life as elaborated by NanaBhoy Ardheshir Palakhiwala in beautiful words as, “Education is at the heart of the matter. Literacy is not enough. It is good to have a population which is able to read, but infinitely better to have people able to distinguish what is worth reading.”
Lastly, I would love to end my wordings by acknowledging trillions of sanctifications to my Godfather, Mr. Sajad Ahmed Mir (Attorney at Law) who completed me on such a position whereby I could pen down several words on a protuberant subject at a podium of generis global. I feel so glad to be led by you, boss. Thanks for all the openings. Words can neither qualify nor quantify how obliging your guidance and advice has been, for a disciple like me. You’re a remarkable boss and I am privileged to obligate you as a sporadic benediction in my life.