Tuesday, November 9, 2010

End of BCI as we know it? Law min’s draft Bill to create lawyers’ super-watchdog | News | Legally India


The law ministry has proposed a new statute that partly supplant the functions of the Bar Council of India (BCI) with a new super-regulator called the Legal Services Board that will oversee the regulation of legal practice, client service, legal education and make it obligatory for lawyers to provide free legal aid.
The Legal Services Board would be established under a new Act called the Legal Practitioners (Regulations and Maintenance of Standards in Professions, Protecting the Interest of Clients and Promoting the Rule of Law) Act, 2010, which was published on the law ministry's website last week.

Modelled on the lines of the Legal Services Board in the UK, the statement of objective reads that it would make provision for “the regulation of persons who carry out the activities of legal practitioners”, establish an ombudsman and a scheme for complaints against the professionals and set out the rules of the provision legal services free of charge.

As proposed in the current form, the Act consists of six chapters with Chapter Three dealing with the constitution of the Board in Part I, the consumer panel in Part II and ombudsman in Part III. The relationship between the Board and the bar councils is discussed under Part II of Chapter IV, with the board having the power to direct the bar councils to take actions and to publicly censure the councils for their acts or omissions. The draft Act is silent on detailed rules of ethics or the practice of law in India by foreign lawyers.

“The BCI has not been towing the law ministry's line. They are trying to clip its wings,” commented one Indian law firm partner with knowledge of the draft.

Bar Council watchdog or replacement?

The new Board would exercise supervisory jurisdiction over all the Bar Councils including the BCI as per sections 29, 30, 31, 32, 33 and 34 of the draft Act and “may do anything calculated to facilitate, or incidental or conducive to, the carrying out of any of its functions”.
Notwithstanding the Advocates Act 1961 the Board “must” also assist in the “maintenance and development of standards” in relation to the education and training of legal professionals and “regulation approved by the [BCI] in relation to the activities of the advocates”.

Widened legal profession?

The 1961 Advocates Act’s definition of “practice of law” was famously examined in the Lawyers Collective case in late 2009 and held to include not just court-based legal work, although it stepped short of deciding whether chartered accountants, company secretaries, in-house counsel or legal process outsourcing (LPO) companies practised law.
But the new draft Act widens its own application from just advocates under the 1961 Act to the newly defined term “Legal Professionals”, which it states also includes tax practitioners, trademark and patent services and “other professional services where legal issues are involved”.

Ombudsman for complaints and board

One of the unique aspects of the proposal are that for the first time an ombudsman would be appointed to investigate complaints against lawyers in India. Currently disciplinary proceedings against lawyers are handled by state bar councils. Under the proposal the ombudsman would be able to publish and recommend reports that would be forwarded to the state bar councils for action.
The Legal Services Board would have a chairman who would be appointed by the President of India in consultation with the Chief Justice of India (CJI) and the chairman of the BCI, a member-secretary appointed by the Central Government in consultation with the CJI and the BCI chairman, and Central Government-chosen members representing various parts of the nation who would be appointed by the Government in consultation with the CJI and BCI’s Chairman.
The Board may appoint a chief-ombudsman and regional ombudsmen, with state ombudsmen being selected from district court judges.

Duty to give free legal aid

Under section 27 “every Legal Practitioner shall be duty bound to give free legal services to the financially weaker consumers/clients who fall just above the income levels prescribed under Section 12(h) of the Legal Services Authorities Act, 1987”.

Government to fund

The new Board’s administrative expenses including remuneration of its staff would be funded from the Indian government’s Consolidated Fund of India, with drawings needing to be authorised by Parliament. The Board may also be entitled under the Act’s section 11 “as the case may be” to a share of the Rs 25 stamp duty charged to advocates filing vakalatnama in court.
By contrast, the BCI and state bar councils receive no government money at all but have only been funded through money received by admitting law colleges, certain stamp duties and fees of advocates’ enrolment. For the BCI, law college admissions have traditionally made up a large share of its revenues.

Consultation period

The proposal is currently at a nascent stage with the ministry’s department of legal affairs having invited recommendations to the draft within 30 days from all stakeholders including the public at large, members of the legal fraternity and academicians. The draft would be placed before the Parliament for further discussion and debate only after receiving the desired feedback.


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