Murmurs on the CLE front
- January 30, 2009
Two events from the very recent past escaped any significant attention, but helped focus on an issue that is critical to the growth of the legal profession in India . In early December of 2008, in Jodhpur , Justice Dalveer Bhandari of the Supreme Court laid the foundation stone for what was being called the country’s first academic institute for practicing lawyers. Later that month, the International Bar Association – Continuing Legal Education (IBA-CLE) Centre at the National Law School of India University (NLSIU), Bengaluru and the Menon Institute of Legal Advocacy Training conducted an intensive study programme for young lawyers on skills, strategies and ethics for trial advocacy.
In the legal profession in India , professional development has traditionally been considered as a one-time affair, occurring at the stage of pre-service education. Increasingly, changing professional needs have compelled some kind of reflection on the need for in-service or on-the-job professional development. Activities being contemplated in this regard include full-time certificates, diplomas, accumulation of credit hours of training, and even professional socialisation and dialogue in seminars, roundtables and conferences. Online distance learning is the latest development within non-classroom based modes of communication and interaction, and has attracted interest from providers of legal education as well.
The English legal system provides an example of an attempt to increases the proficiency of practicing lawyers: the Criminal Litigation Accreditation Scheme administered by the Law Society of England and Wales . Described as “the most detailed accreditation scheme anywhere run by a representative body of the legal profession regulating the quality of its own members’ criminal work,” it was developed in response to an influential study of the legal advice that defendants received after arrest. (See, Michael McConville et. al., Standing accused: The organisation and practices of criminal defense lawyers in Britain, (1994)) The law professors who conducted the study were highly critical of the standard of practice among criminal defense lawyers. In response, in 1995 the Law Society created a multi-step program (called the “Police Station Qualification”) that defense lawyers must complete to be accredited to advise arrestees at police stations. First, the candidate must observe a qualified lawyer giving advice in two cases at a police station and document their observations in a portfolio. Second, the candidate must provide advice in two other cases under the supervision of a qualified lawyer and record those cases in the portfolio. Third, after the portfolio has been reviewed and approved, the candidate enters a twelve-month probationary period in which he or she must complete five cases of police station advice without supervision. The Law Society audits these case files using a very detailed list of “transaction criteria,” which are “a series of points and questions that a trained observer checking the file . . . would use to evaluate what was done and the standard to which it was done.” Finally, the candidate must pass a “critical incidents test,” where he or she views a tape of an interrogation and indicates how and why he or she would intervene.
Similarly, since 1985, the Solicitors Regulation Authority in the UK has operated a compulsory Continuing Professional Development (CPD) scheme. Solicitors are encouraged to assume responsibility for their own development by choosing from the wide range of activities that can be pursued in order to meet the yearly CPD requirement. Currently, all solicitors and registered European lawyers (RELs) who (a) are in legal practice or employment in England and Wales, and (b) work 32 hours or more per week, are required to complete a minimum of 16 hours of CPD per year; at least 25 per cent of which must consist of participation in accredited training courses. The SRA’s CPD scheme is compulsory and forms part of Part VI of the Training Regulations, 1990. A solicitor or registered European lawyer must keep a record of such continuing professional development undertaken to comply with these regulations and produce the record to the Law Society on demand.
In the USA too, lawyers who have qualified for practice at the bar are regularly evaluated, on the basis of which their licenses are extended. Mandatory Continuing Legal Education (MCLE) programs are administered by the state supreme courts through a special CLE commission or board. Lawyers may either sign up for courses and programmes offered by local Bar Associations, or by independent for-profit and non-profit organisations. The non-profit Practising Law Institute (PLI) grants scholarships to legal aid and government attorneys, law professors, judges, judicial clerks, law students, employees of non-profit organisations and attorneys experiencing economic hardship. Since its founding, the PLI has witnessed more than 3 million registrations and publication purchases by lawyers and allied professionals. CLE has also become a commercial exercise with CLE Modules and Programmes, both online and offline, costing the professionals hundreds of dollars to sign up and be educated. The West LegalEdcenter , a for-profit organisation launched in 2001, is the leading online continuing legal education (CLE) service in the United States , from Thomson West, part of the Thomson Corporation.
Implementing CLE in India
(Dr. V. Nagaraj is Registrar of the NLSIU in Bengaluru and former Executive Chair at the IBA-CLE Centre.)
Dr. V. Nagaraj, Registrar and Professor of Law at the National Law School of India University (NLSIU), Bengaluru, and former Executive Chair at the IBA-CLE Centre is optimistic. “The Bar Council of India is thinking about certain number of training hours for renewal of licence. If that suggestion is taken up, we may collaborate”, he said. Part of his optimism comes from the very close relationships that the Centre has had with the Karnataka Bar Association – enabling successful conduct of advocacy skills training programmes in several districts. Some of it comes from the pedigree of the Center. The endowment from the International Bar Association was launched when Prof. N. R. Madhava Menon was Director of NLSIU. At that time, work started under the stewardship of Justice Rama Jois, a former Chief Justice of the Punjab and Haryana High Court as well as a former Governor of the state of Jharkhand. In December, the Centre roped in the services of Mr Soli Sorabjee and Mr K N Bhat to deliver part of its residential intensive study programme. However, several problems stand in the way of being inspired by the work done by the Centre.
With the highly political nature of the Bar Councils in India and the unwieldy number of lawyers (over a million), duplicating CLE in India to the extent of making it mandatory is virtually impossible. Considering the reactions of the Bar over the last decade to both the apprenticeship rule and the entry of foreign firms, any imposition of a requirement will almost definitely receive a hostile reception. However, there is increasing consensus on the far-reaching positive implications of keeping lawyers updated on legal developments, including (i) the development of the law, (ii) the quality of lawyering, and (iii) the service to clients. At the same time, it will be necessary to start through a process that need not be mandatory.
However, to deal only with legal updates would be a bit of a paradox in a system where nearly 99% of the graduating students do not have the basics of law in place. The question of ‘updating’ or imparting continuing ‘legal education’ is premised on the fact that they are already starting with a certain level of education. It is therefore necessary at the outset to gauge the standards of those willing to participate, with an Aptitude Test. Once the Aptitude Test has been completed, the lawyer can pick from a selection of courses that can best remedy the deficiencies identified by the results. Gopal Sankaranarayanan, an advocate in New Delhi has a few prescriptions for a Continuing Legal Education Programme. You can read it here.
