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Globalisation & Legal Profession
Aviral Saxena* & Shruti Garg
(*LSS Bhopal 2003, National Law Institute University, Bhopal,
aviralsaxena@hotmail.com)
The phenomenon that the degree of global
human interaction increases to such an extent that both its primary
effects and the reactions it provokes gives rise to numerous new
developments. Globalisation is caused by three prime movers:
technological globalisation, political globalisation, and economic
globalisation. The three prime movers initiated a process in which
geographic distance becomes less a factor in the establishment and
sustenance of bordercrossing, long distance, economic, political and
socio-cultural relations and which we call globalisation. People become
aware of this fact. Networks of relations and dependencies therefore
become potentially bordercrossing and worldwide. This potential
internationalization of relations and dependencies causes democratic,
environmental, security and social deficits and rebound effects, like a
change in attitudes and administrative shortcomings. Globalisation is
not only negative. It also includes people in the world community and
gives rise to new systems of global governance and a global civil
society.
Many see globalisation as a primarily economic phenomenon, involving the
increasing interaction, or integration, of national economic systems
through the growth in international trade, investment and capital flows.
However, one can also point to a rapid increase in cross-border, social,
cultural and technological exchange as part of the phenomenon of
globalisation. The sociologist, Anthony Giddens, defines globalisation
as a decoupling of space and time, emphasizing that with instantaneous
communications, knowledge and culture can be shared around the world
simultaneously. A Dutch academic Ruud Lubbers, defines it as a process
in which geographic distance becomes a factor of diminishing importance
in the establishment and maintenance of cross border economic, political
and socio-cultural relations.
David Held and Anthony McGrew write in their entry for Oxford Companion
to Politics that globalisation can be conceived as a process or set of
processes which embodies a transformation in the spatial organization of
social relations and transactions, expressed in transcontinental or
interregional flows and networks of activity, interaction and power. The
globalisation has also far-reaching ramifications on legal profession
which has also increased the pace and complexity of law practice. This
has led to many lawyers who cannot cope to leave practice. Globalisation
has also increased the mobility of lawyers with the right legal skills
and experience. Many lawyers are practicing in offshore law firms in the
major financial centers of the world. Within India too, domestic lawyers
can move to law firms located here, and litigation lawyers can move
sideways to non-litigation work or arbitration. In the last few years,
many senior advocates have been devoting more time to arbitration
practice, especially to international arbitration. The new legal
landscape has provided many more practice choices to lawyers.
The establishment of the joint law ventures and law alliances has given
greater scope for bright young lawyers to take advantage of the benefits
of an integrated offshore law and onshore law practice, in remuneration
and acquisition of legal skills and experience in high-end and cutting
edge legal work. They have flocked to these firms. Not many of them are
being trained in civil litigation work. This is a portent of things to
come. It also portends a shrinking litigation Bar.
The informal retainer system also affects the number of firms and
advocates that may act against the big clients. A major client can
immobilise all the advocates in the large firms with whom it has a
strong professional relationship from acting against them. Most
advocates divide their time as solicitors and many have to manage their
firms as well. The operational number of advocates available for trials
on any day is much smaller than is generally assumed.
We may have a potent mix of conditions that inhibit the growth and
vibrancy of the litigation Bar. Many litigation lawyers have already
succumbed to the pressure of having to keep pace with the courts. A
shrinking litigation Bar does not bode well for us. A diminished
litigation Bar leads eventually to a diminished Judiciary and a
diminished legal system. We should not forget that the administration of
justice in court is manifested by judges sitting in open court
dispensing justice at public hearings where litigants are given their
day of justice through counsel who speaks for their legal rights. The
administration of justice needs advocates as much as it needs judges.
The new legal landscape will pose greater challenges to the civil
litigation bar in the future. They should address their shortcomings
quickly and see what has to be done to enable them to discharge their
professional obligations effectively in the administration of justice.
The elite members of the Bar, viz., the assembly of Senior counsel, have
a special responsibility to ensure that the litigation Bar is not
diminished in strength, performance and public standing in future, and
that the Bar is not lopsided, and overladen with our best legal talents
in non-litigation practice.
The lawyers must evaluate their role within the legal profession and in
the broader community at a time of rapid social change. The object of
this encounter is to promote a re-examination of what it means to be a
member of a profession and a legal practitioner in our society today. We
must examine the tension which exists between the traditional features
of the practice of the law in a learned profession, enjoying important
privileges on the one hand and the dictates of modern business practices
which impose on lawyers of today obligations to address cost factors and
so called “bottom line” considerations on the other. An undue emphasis
on economic factors has led, in recent times, to a lessening of
sensitivity to, and the importance of, the old ethic and culture of
professional service.
The basic questions which are posed are these: is such expressed anxiety
nothing more than a nostalgic hankering for a return to “good old days”
of legal practice, which were not so good for the consumer after all? Or
is our anxiety a last desperate effort to keep alive the flame of
professionalism in the face of so much evidence that law is moving in
the direction of a business and that the idealism and selflessness of
professionalism is finally dying out?
Attorneys practise law in a different way than did their forebears. The
best graduates gravitate to huge and impersonal law firms where they are
put in a corner and time charging is the rule. Original ideals of wise
and dispassionate advice to clients are increasingly enfeebled by a
mercantile attitude, which effectively lets the client dictate the
course of disputes, without the effective cautionary words, which
lawyers previously gave. The role of the lawyer in the old days involved
compassion for the client’s entire predicament, tempered by detachment
and also a measure of concern for the public good. The growing
ascendancy of the economic view of law and a decline of its self-image
as a helping profession will continue the decline of idealism and
professionalism unless this is arrested. Advocates too, are changing
their ways. The old days of complete honesty with the courts and candour
and honour in dealing with each other has given way to a more ruthless
effort to win cases because larger profits which hang upon them,
essential to the lawyer’s “business”. The client becomes a mere
“punter”. The lawyers become too much caught up in the client’s
speculation. Whereas, in the past, the advocates would conceive his or
her role as being, akin to the judge, the maintenance of detachment, a
shift to a business definition of the law embroils the lawyer in the
client’s cause. It erodes the reality of detachment essential to
professionalism.
Unprofitable work is rebuffed by some as a waste of time. Longer and
longer hours must be worked to the cost of quality of the lawyer’s life.
The social environment of the legal workplace has deteriorated .The work
satisfaction, which attended much legal practice in the past has been
replaced “by a strictly commercial and entrepreneurial approach to the
practice of the law”.
Lawyering today is probably of a higher quality and that law firms are
“certainly more efficient” today. To some extent this is an inevitable
product of new technology and new approaches to office management. Young
lawyers today generally make more money than they did in their day, even
allowing for inflation. “….the practise of law is today a business where
once it was a profession…..Market capitalism has come to dominate the
legal profession in a way that it did not a generation ago. Law firms,
whether in 1956 or 1996 have always had to turn a profit if they were to
stay in business. But today the profit motive seems to be writ large in
a way that it was not in the past…..Perhaps nowhere in the profession is
this tendency more developed than in the emphasis on billable hours. It
appears that now clients are insisting on some changes in this form of
billing, and perhaps it will not be as dominant in the future as it has
been in the past.
Large firms simply cannot economically justify taking on small matters,
so they end up with only large clients….large cases…with an enormous
amount of time devoted to relatively uninteresting work …very few of
which actually go to completed trial.
There is also a loss of loyalty not only within firms but also between
clients and legal firms. Adam Smith, of course, would be pleased with
all these developments. There is nothing like market capitalism to bring
economic efficiency to any operation. But in the past the idea of a
Profession was subtly different, in both self-congratulatory respects,
and in other more important respects, from that of a business. There was
a personal relationship built up among lawyers in the same firm, which
meant that income producing ability, though a very important factor was
not the sole basis on which the status of a partner depended. It also
meant that between clients, and law firms with whom the clients, and law
firms with whom the client had a long-term relationship; there was an
element of trust and understanding which may be diminishing today.
Change for the better:
Lawyers should not be adverse to acknowledging that many changes, which
alter somewhat the character and activities of the legal profession,
often forced upon it reluctantly, have been for the better. Clinging to
old ways, just because they are old, is not very rational, least of all
in a profession, which boasts of being “learned”. Sometimes we have to
unlearn bad old habits, which have outlived whatever usefulness they may
have had such as the two counsel or the two-thirds fee rule amongst
barristers, or the total ban on advertising, or the professionals.
Sometimes too we have had to respond to the call for external scrutiny
of the way we handle public and client complaints against members of the
profession. One does not have to wholly embrace Richard Ackland’s view
that lawyers are members of a Broederbond, or criticism from within that
the bar is simply a cartel, to accept that external perceptions are
actually often useful and legitimate. Lord Justice Staughton in England
recently remarked that some of the profession’s ethical rules appeared
to have been simply protectionist and not at all concerned with the
public interest or the proper administration of justice. We can now see
that at least some of the ethical truisms of the past were less
concerned with ensuring right behaviour to clients than with gathering
and retaining clients from the ambitions of competitors or stamping a
very high degree of conformity on professional behaviour and services.
If this may seem to some to be an uncharacteristically muted, grudging,
even reluctant concession, it is fair to observe that it is one that
would probably not have been offered by many of his predecessors.
If changes, resisted at the time, are now seen to have been “beneficial
reforms” members of the legal profession must keep their minds open to
the possibility that other changes, urged today, will in due course come
to be seen as beneficial to the ultimate objective of practicing
lawyers, which is to ensure that as many people as possible secure
accurate advice and competent representation.
It should be acknowledged, both within the legal profession and by its
critics, that there remain many, possibly a majority who are as
committed to the ideals of service and dispassionate advice as existed
in times gone by. Many of them derive from the growth of very large
firms with their assignment of unrewarding work to the best and
brightest graduates. Such firms themselves must address the growing
evidence of lawyer dissatisfaction with their life and work. In part,
they do by encouraging a little pro bono work and engagement in
professional bodies. But unless a culture of loyalty and self-respect
can be restored, the mercantile values of ruthless self-interest will
permeate legal practice. This will be to the destruction of the ethos of
firm loyalty and client that has existed until now.
The revival of the public debate about what legal professional ethics
should be, and the heart-searching within the legal profession itself,
signaled by this occasion, make it timely to urge an intensified
interest in law schools in the teaching of legal ethics. This is not
just a rudimentary training in the provision of the local professional
statute, rules of etiquette and, where applicable, book-keeping and
trust account requirements, offered in a few lectures thrown in at the
end of the law course. It is a matter of infusing all law teaching with
a consideration of the ethical quandaries that can be presented to
lawyers in the course of their professional lives. Only in this way will
law schools provide students with guidance on the professional
responsibility and on the ethical issues they will face as they enter
the profession. One commentator has remarked, rightly:
“Law teachers cannot avoid teaching ethics. By the very act of teaching,
law teachers embody lawyering and the conduct of legal professionals. We
create images of law and lawyering when we teach doctrine through cases
and hypotheticals”.
Professor Ross Cranston in his new book ‘Legal Ethics and Professional
responsibility’ accepts that the technical rules can be left to the
practice course but asserts that:
“….. all law teachers have a responsibility to give attention to the
ethical under-pinning of legal practice. We have a responsibility to
sensitise students to the ethical problems they will face as
practitioners to provide them with some assistance in the task of
resolving these problems, and to expose them to wider issues such as the
unmet need for legal services”.
The courts and bodies, supervising professional conduct, also have a
duty to uphold high standards of honest, faithful, diligent, competent
and dispassionate legal advice and representation.
In a time when so many fundamentals are questioned, doubted, even
rejected, it is hardly surprising that the ethics of the legal
profession should also be doubted by some of its members and attacked by
its critics. It is easier to adopt a purely economic or mercantile view
of the law if you have no concept of the nobility of the search for
individual justice, of the essential dignity of each human being and the
vital necessity of providing the law’s protection, particularly to
minorities, those who are hated, even demonized, and reviled. Without
some kind of spiritual foundation for our society we can do little else
than to reach back into the collective memory of our religious past or
to rely on consensus declarations as to contemporary human values.
The challenge before the legal profession today is to resolve the basic
paradoxes, which it faces, to adapt to changing social values and
revolutionary technology, to reorganize itself in such a way as to
provide more effective, real and affordable access to legal advice and
representation by ordinary citizens, to preserve and, where necessary,
to defend the best of the old rules requiring honesty, fidelity,
loyalty, diligence, competence and dispassion in the service of clients
above mere self-interest and specifically above commercial
self-advantage, to adapt to the growth and changing composition of our
society and of its legal profession. And to mould itself to the fast
changing content and complexity of substantive and procedural law. It is
quite a tall order. Are we up to it?
The hope must be that some of the old-fashioned notions of selfless and
faithful service will survive even these changing times. In the void
left by the undoubted decline of belief in fundamentals, we must hope
that a new foothold for idealism and selflessness will be found. Despite
the beliefs of some of its critics, the Indian legal profession’s
guiding principles will not be found in economics alone. Still less will
it be found in a dogma of free market competition. Economics simply
cannot explain the will to do justice, to be dutiful to courts and
honest and dispassionate to clients. Modern economic theory, now put
into widespread practice, has not done such a good job in terms of
social engineering. The large pool of long term unemployed, the rise in
crime, drug use and increased stress within personal relationship all
suggest the failure of unbridled economic rationalism as an alternative
foundation principle for society.
The great debate for lawyers in the coming century is not whether a
separate cadre of advocates will survive. It is not even whether
competition and consumer pressure will improve the delivery of some
legal services. Of course they will. It is whether the ascendancy of
economics, competition and technology, unrestrained, will snuff out what
is left of the nobility of the legal services. We must certainly all
hope that the basic ideal of the legal profession, as one of faithful
service beyond pure economic self-interest will survive. But whether it
survives or not is up to the lawyers of today. We should use an occasion
such as this to reflect upon the problems that we can see, looming and
to examine the sources of our deepest concerns. And then we should do
what we can, whilst moving with the times, to revive and reinforce the
best of the old professional ideals, to teach them rigorously and
insistently to new recruits and to enforce them strictly where there is
default. We cannot say that we have not been warned.
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