Bar and Bench - Indian Legal news
www.barandbench.com
State of Legal Education: Structuring Continuing Legal Education in India
Apprentice Lawyer

State of Legal Education: Structuring Continuing Legal Education in India

Bar & Bench

Previous articles in this series have talked about legal education in law schools. In the third article in the “State of Legal Education” series, Badri Natarajan talks about legal education after law school. “Since (unlike in Suits) most lawyers do not have a photographic memory of every piece of legal knowledge that exists”, Badri Natarajan argues that there must be “some way to maintain and expand our legal knowledge over time.”

by Badri Natarajan

I became a lawyer because I loved lawyer TV shows like LA Law (I’m old enough that Ally McBeal only came out late in my law school days). They seemed to have the most amazing lives: arguing interesting cases, meeting fascinating people and always knowing the answers to legal questions off the top of their heads.

Then I started practicing law and my illusions vanished. Which is a pity because I quite liked my illusions. I still enjoy practicing law – it’s just nothing like you see on TV (tip: if you’ve not seen it yet, try “Suits” – one of the best legal shows I’ve seen in a while).

Previous articles in this series have talked about legal education in law schools. In this article, I’m going to talk about legal education after law school. Since (unlike in Suits) most lawyers do not have a photographic memory of every piece of legal knowledge that exists, we need some way to maintain and expand our legal knowledge over time.

I’m going to talk about the importance of continuing legal education (or “Continuing Professional Development” – aka “CPD”) after law school as an ongoing part of a legal career. I will also make some suggestions about how to structure a CPD scheme for Indian lawyers and the benefits that such a system would bring.

CPD In India Today

There is no formal CPD system in India.

The Bar Council of India (and the state Bar Councils) does not require advocates to do any CPD or training after they are admitted as advocates. The assumption is that lawyers will somehow develop and maintain their knowledge in the course of their practice and stay abreast of current developments and the latest cases.

Of course, some people do manage it – they read the latest cases, they read articles in journals, they attend talks and interact with colleagues (as well as learning through their day-to-day legal work). And many law firms have in-house CPD programs with dedicated staff whose job it is to keep lawyers updated with the latest developments in their field.

But for the vast majority of advocates, there is no such support. And for most people, day-to-day concerns and pressures come first, and it’s really easy to deprioritize keeping up to date and developing yourself. For people like this (ie, most of us), a little more of a push is needed – some gentle pressure to encourage us to develop ourselves a little more – because being better informed will make us better lawyers and will help us serve our clients better.

This can include plugging gaps in lawyers’ knowledge of their own fields, keeping up to date with recent developments and also learning things beyond their own field that can make them better rounded lawyers.

For example, a senior judge on the Court of Appeal in England wrote a very influential report called the Jackson Report about costs in litigation a couple of years ago (in England, the loser in a court case is usually expected to pay all the winner’s costs, including their legal fees). Although this was a crucial development in English litigation and (if implemented) highly relevant to our practice, most people at my old firm did not have the time to read and digest such a voluminous report in the midst of their day to day work. However, one of the partners organized an hour-long CPD training session where he reviewed the report in detail and all of us benefited immensely. This is the kind of situation where CPD can be enormously useful.

For the current and former law students reading this, it’s a bit like how most of us did our projects in the last few days of term, just before the deadline. There are a few people who work steadily throughout the term and finish their projects weeks ahead of schedule (these are the same people who don’t need a formal CPD system in later years) but most of us needed the pressure of a deadline to get things done.

And that’s what a formal, structured CPD system does. It improves the overall education and training of lawyers in a country by setting up a structured system that requires and encourages lawyers to do a certain minimum amount of regular training and development.

CPD In Other Countries

Most common-law countries (in the West) have some kind of CPD requirement for their lawyers. The details vary between countries (and between US states).

However, most of them include the following features in some shape or form:

– Annual renewal of every lawyer’s licence to practice law (not a one time grant as it is in India). This is not strictly part of a CPD system, but it is very useful as part of a system to monitor compliance with CPD requirements.

– Compulsory CPD to be done by lawyers every year

– Renewal of licence to practice linked to completion of annual CPD requirements

– Some kind of minimum standards of CPD (hours, type of CPD, etc)

– Some kind of basic monitoring system (random audits of lawyers to prove CPD has been done etc).

In thinking about how to setup a CPD system for Indian lawyers, it will be useful to keep the above features in mind (even if we don’t incorporate all of them).

For example, in England, all solicitors are required to do a minimum of 16 hours CPD every year. This can be a combination of reading articles, attending lectures and training session or even preparing and delivering lectures and other activities (for example, I used to judge moot court competitions at the University of Westminster in London and both preparing to judge events and judging events was eligible to be counted as CPD). However, there are limits on how many of your CPD hours can be completed by doing things that cannot be verified (reading articles etc). In most cases, CPD hours can only be claimed for attending “accredited” training courses and activities. And there are random audits by the Solicitors Regulation Authority to check that solicitors have completed their required CPD hours each year.

In practice, most large and mid-sized law firms have internal training systems that make it easy to hit the required number of CPD hours. In-house solicitors (depending on the company) usually have a combination of internal training and free training provided by law firms (for whom it is a form of business development). Solicitors at small firms (and sole practitioners) do find it harder to complete their CPD hours – they may have to pay for external CPD courses conducted by training providers (although there is no shortage of these, they can be expensive).

A CPD System for India

In light of the above points, I think a CPD system in India should be introduced by the Bar Council (depending on the structure, it may require amendments to the Advocates Act, although if a bar exam can be introduced without amendments to the Advocates Act, it may be possible to setup a CPD system without amendments).

It is beyond the scope of this article to design a comprehensive CPD system for India. My goal here is to explain why I think a CPD system for Indian lawyers would be beneficial and sketch out some key points that I think such a system should include, based on the experiences of other countries.

In particular, it should include the following:

– It should be compulsory for all advocates. All of us, of every level of seniority, can benefit from continued learning.

– The number of hours of training (or some other way of measuring the training – perhaps number of training sessions or something else) should be clearly specified and limited. A balance needs to be struck between requiring advocates to do enough training to make a difference, and making the requirements so onerous that most advocates will find it too difficult to reach. In the early stages, while advocates are still getting used to the idea of doing compulsory CPD, it would be better to set it lower, rather than higher.

– There should be clear guidelines about what activities satisfy the CPD requirements, so that advocates have clarity about what they are expected to do. Over time, an ecosystem of formally accredited courses and training sessions is likely to evolve, but that will not happen overnight. However, to encourage compliance, the bulk of CPD should be activities (such as in-person training sessions) that can at least potentially be verified (even if the Bar Council does not actually do so in every case).

– There should be a system for monitoring compliance with CPD requirements by advocates. It would not be practical from a cost/benefit perspective to require verification of every advocate’s CPD compliance (or even submission of CPD records by every advocate). However, there should be, at a minimum, random checks on advocates, who may be required at any time to provide proof of their compliance with CPD requirements.

-The most effective way to ensure compliance with CPD requirements is to link them to renewal of an advocate’s ability to practice law every year, as is done in other countries. However, since advocates in India are not required to renew their registrations every year, changing this would be a significant reform in itself. As a result it is unlikely to happen in conjunction with CPD and will need to be considered separately on its own merits.

– There should also be clear guidelines about the consequences for failure to meet CPD requirements (if we do not have a system where an advocate’s enrolment cannot be renewed without meeting CPD requirements, then we will need some other sanction imposed by the Bar Council for failure to do so). The guidelines should also set out circumstances where failure to meet CPD requirements may be excused (for example if advocates suspend their enrolment with the Bar Council in certain circumstances, then they could be excused from CPD requirements)

If a CPD system along these lines is implemented in India, I believe it will be of great benefit both to the legal community and our clients.

Badri Natarajan is a graduate of NLSIU and LSE, and spent a year as law clerk to the Hon Justice SSM Quadri in the Supreme Court. He was one of the founders of Law School Tutorials but is no longer involved with it. After 6 years in Clifford Chance’s litigation department in London, he is in the process of returning to the Madras High Court.