The right to practise law
Tarini Arogyaswamy
The right to practice law is a very serious matter, determining who may be allowed to practice law, and how this determination is made. Of course, these questions depend on whether we are talking about India, the United States, or other jurisdictions. For our purposes today, an understanding of the established ethical standards in relation to the right to practice law in India and in the United States, requires a look at the rules promulgated in India, including the Advocates Act, 1961 and the rules made under the Act, as well as the ABA Model Rules of Professional Conduct, which are the basis of the rules of professional conduct prescribed by the bar associations of most states in the United States.
In India, Chapter IV of the Advocates Act, 1961, provides that unless a person is enrolled as an advocate under the Act, which may include character inquiries, he or she shall not be entitled to practise in any court. Similarly, in the United States, rules of professional conduct prescribed by most states provide that only those persons who have passed the bar examination and any character inquiries as well as fulfilled any required residency requirements of the particular state, will be admitted to practice law. Clearly, the major difference between the ethical standard in relation to the right to practice law in India and in the US is that in India, it is reserved for advocates who have acquired the necessary law degree while in the United States, it is reserved generally to those who have passed the appropriate bar examination.
What then are the ethical implications of this differing standard? In India, 80,000 people graduate from law schools every year and several of them go on to be enrolled as advocates. Without a bar exam, there appears no way of determining whether these graduates have the knowledge and understanding that they need to be enrolled as an advocate or to practice law, besides through an analysis of the syllabus and curricular requirements through which law degree was acquired. Currently, it is assumed that the adequate legal knowledge and the ability to analyse situations and cases in which they may be involved, have been acquired through a law degree from law colleges that are approved of by the Bar Council of India. This assumption even holds for those colleges, which may not require attendance in class. Regardless, most lawyers in India are spared the trauma of taking a bar exam and don’t even have to think about taking an exam if they move from one state or place to another within India during their careers.
In the United States also, there are also a large number of law students graduating every year from the many law schools. In contrast, these students must pass the bar examination of the state in which they intend to practice law. However, a note to be made is that while many intellectuals in the legal field in the United States admit that the bar examination tests knowledge of various areas in the law, they are also uncertain about whether the bar examination tests the ability to apply the knowledge in a real world setting and to practice law.
As a lawyer trained in the United States and admitted to practice in New York and with the right to practice law in India, I often wonder about the ethical implications of requiring law students to take a examination to determine whether they will be able to practice law after they have spent years studying law. What does the exam accomplish? As someone who has taken the bar examination in New York State, I would say that it definitely makes most law students lose their minds for about three to six months before the exam and for another three months after the exam waiting for the results. The long-lasting effect is the desire never to take another bar exam of another state unless absolutely necessary, which a lawyer in the United States has to do if he/she intends to practice in a state other than where he/she has passed the bar exam and is admitted to practice already.
However, depending on the state, the bar exam gives you the opportunity and the need to study subjects in law that one never had the time or interest to study in law school. Then again, there are students who will fail the exam not because they lack the knowledge or skills but because they are unable to deliver the memorized information under the time pressure in the format required by the bar exam. Nevertheless, I also wonder how around 80,000 law graduates a year can just be allowed to practice law because they attended law school? How does the Bar Council in India know that each and every one of those lawyers has the training and skills required of a lawyer? Is it necessary and apparent that law graduates from all the law colleges have the skills and knowledge required of an advocate and for the practice of law in their jurisdiction? An important step forward in the face of globalization would be to make the right to practice law uniform across jurisdictions whether it is through an exam, certification, or a training course so that lawyers can more freely travel, transport their career, and practice law.
