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Securities Lawyer to Mountaineer – Scaling New Heights Somasekhar Sundaresan

Securities Lawyer to Mountaineer – Scaling New Heights Somasekhar Sundaresan

Bar & Bench

Somasekhar Sundaresan (aka Som), Partner at J. Sagar Associates is a man of many facets. India’s only complete securities lawyer – he is equally at ease arguing before SAT, attending an IPO kick off meeting or serving on the Takeover Committee tasked with reviewing the Takeover Code. Somasekhar Sundaresan, a finalist in the Titan Be More challenge, breaks away from the stereotypical lawyer mould and actively engages with the civil society through the Black Badge Movement, goes on annual mountain climbing treks and dedicates his treks to raise funds to support the Akansha Foundation which educates underprivileged children.

Bar & Bench in an exclusive conversation with Somasekhar Sundaresan.

From Associate Editor to Corporate Lawyer – How did it happen and why did you make the shift?

I studied law to be a good quality journalist. I believe one cannot be a good journalist without a good sense of the law, the Constitution and administration. Over time I got bored of journalism, the way it was then practiced, and what newspapers and journalists were then going through made me think I should not waste my skill and education as a lawyer and should try and put it to use. I was lucky to meet Berjis Desai, now our managing partner at the time I had started developing doubts about a future exclusively with journalism. He gave me a break into law despite my unconventional background and supported me through a hard transition.  At a flippant level, I used to think that being a lawyer would give me evenings at concerts and clubs as opposed to slogging in the newsroom. I learnt after the move that the practice of law had changed, and a person like me had a place because lawyers could no longer afford to be in their clubs and concerts every evening. The shift gave me a blend of both academic work and research (akin to journalism) and a reasonable income (journalists were paid really low remuneration those days). The five years of business journalism, largely covering capital markets had given me a ringside view of securities legislation and its administration and that was very useful in applying myself to the new profession with greater clarity on legislative intent behind various regulations.

You are India’s only complete securities lawyer. One of your client’s said, “Somasekhar Sundaresan is an expert on corporate and litigation practice”. What according to you is more challenging and how do you manage to balance both these aspects of your practice?

The practice of law per se keeps one on one’s toes. It is one of those professions that let’s you define what you want to do with it, and how you want to embrace it. Securities law has become as intensely complicated as tax laws – a number of self-contained regulations, which have to be interpreted purposively rather than technically (as one would interpret tax laws).

While most of my time is spent in transactional work, I persist with securities litigation work because it gives me a ringside view to how a bench of judges would practically view exotic interpretations that transactional lawyers tend to take for granted. No abstruse structure is worth the paper it is written on, if it would face challenges in enforcement, or if it could fall foul of compliance when interpreted by a judicial mind.

Both streams of work are challenging in different ways.  With a court, the margin for error is very narrow in some aspects – every mistake on a factual point can be given the colour of deliberate misrepresentation, and one has to tread very carefully, while in transactions one can commercially explain a mistake to the counterparty and ensure there is no presumption of bad faith. On the other hand, with commercial transactional work, the margin of error with an interpretation of law is very low because clients are deploying real money on the basis of what you say to them. Managing both is not as difficult as it can seem. Since most of the litigation work I do is in the Securities Appellate Tribunal, which runs a well-organised docket (if a matter is posted for a particular day, by and large, it would be heard on that very day) and therefore time management is possible. One cannot say the same about the high court where there is absolutely no assurance on when any given case would be heard. Therefore, I am able to pursue both related interests in parallel.

You are on the panel of the Takeover Committee, which submitted the Draft Takeover Regulations to SEBI last week. What are your views on the level of regulation in India in light of the global financial crisis?

 India is over-regulated and under-enforced. India also by and large follows a system of “show me a problem and I will write you a regulation.”  Because of such policy approach and certain clear lacunae in the drafting and structure of the existing Takeover Regulations, the Takeover Regulations have become highly bruised and bandaged and the time was ripe for a review to see if it just needs further repair or a comprehensive re-construction. On a review, we decided that we need to do a comprehensive re-write not only of the policy but also in terms of legislative drafting. We must acknowledge that the existing regulations have addressed the fundamentals of regulating takeovers very well, and it was very useful in our review exercise to build further on them.

You are actively involved in making a difference by engaging civil society. You started the Black Badge after the terror attacks to demand a NSG unit be stationed in Bombay/Maharashtra.

I feel inadequate about the extent to which I do for society despite being a lawyer. I know the financial services regulatory work we do plays an important role in capital formation and regulation, which in turn finances a lot of developmental work in society and catalyzes in creation of employment, but as a lawyer who is officially on the other side of 30, it does pain one to see how little awareness of rights there is even among lawyers. I recently heard from a young fellow lawyer who got into an accident on her way back from a long day at work in the wee hours of the morning, and her being harassed by policemen who expected to be paid by her to be allowed to leave the police station. It is at moments like these that one realizes that lawyers, particularly those intensely involved in transactional work, have started performing jobs rather than practicing a profession.

What happened on 26/11 shook things up at several levels. A client in one transaction, and a counter party in another transaction were holed out in the Trident through those harrowing days. I was to have had dinner with one of them that very night at the Trident and I had cancelled owing to a sore throat.  A few close friends were holed out in the Taj after dinner. The then Home Minister was on television way past midnight without a watch on him, and was seen asking reporters for the time, and then said a planeload of commandoes “would have taken off by now” for Bombay. I learnt from some friends in the media who were on the ground how pathetic the state was in the CST train terminal and at the Taj. Suddenly everything seemed so vulnerable. The city that contributes so much to the state of Maharashtra and to the nation hardly gets anything back in return. I looked around for statistics on how much tax is generated by Mumbai alone and I found that there is no scientific way to arrive at a realistic number. In a couple of days, Sunil Lulla and I thought of wearing a Black Badge as a symbol of protest and said let us wear this until such time there is some actual movement on getting the city a terror-combat force.

It is now time to expand the role of such a group to civil rights awareness. If lawyers are scared of the system, you can imagine the plight of the common man. A senior investment banker who is regarded as being “highly influential” has been hassled at the behest of one Chief Minister and he had to stay away from India for months. Within weeks of the Chief Minister’s accidental death, he could return to the country. These are all symptoms of how at this age of the Republic, we are on the verge of being a ‘banana republic’ with the decay in our societal and national institutions at its worst. I really wish I could do a lot more outside my work for this nation.

You are also involved with Akansha and pledge your annual mountain expeditions to help raise funds for underprivileged children.

A few years ago, I was invited to the board of Akanksha, an NGO that works in the area of education for underprivileged children. I had known the folks at Akanksha for quite a few years and I joined the Board. Education is one very powerful tool for any individual. I personally grew up amidst modest means, and the most important asset given to me by my parents is my education. Last year, I started dedicating my annual mountain expeditions to fund-raising for Akanksha. I have only recently resigned from the board of Akanksha to ease the burden on my time.

I love vacationing in the wilderness where there is no telecommunication contact except for emergency satellite phone reach.  When we merged our practice into JSA in 2002, I spent three years without a proper long vacation, focusing on building the practice and consolidating the merger. Therefore, in 2005 I went to Antarctica, and my eyes were opened to nature and how far I had removed myself from it. I was exposed to both kayaking and hiking there, and I resolved never to slip up on this front again. I have trekked every year thereafter – to a monastery at Thyangboche in Nepal (on the Everest trail), Mt. Kilimanjaro in Tanzania, Mt. Kacker in Turkey, Mt. Stok Kangri in Ladakh and Mt. Satopanth in Garhwal (this year).

Where do you see the legal community in India headed and what are your views on the liberalization of the legal market?

The Indian legal community has faced a significant challenge for nearly twenty years now.  It has had to professionalize, get nimble, client-friendly and it has had to justify its role and fees in the past twenty years.

The next twenty years will see a challenge of a different kind. The community faces serious global competition. Practices that professionalize and systematize work processes will get further fine-tuned. Lawyers will have to bring specific competencies to the
table to be able to make a difference. Just doing a process task well and presenting a nice glossy work product would not suffice. The differentiation will come from how practical legal advice is given and how acutely tuned in the practitioner is to the overall legal system and the purposes that drive the system. There are conflicting views on when and in what form the legal services market should be opened up. As far as my practice area is concerned, I have effectively had to compete with firms from across the globe for years now. What shape the larger policy will take really cannot be predicted, but as far as practitioners in my area are concerned, they have to compete with the globe for years now and have done well for themselves.

“Somasekhar Sundaresan is a law firm within JSA, he enjoys a separate brand and clients go to him and not JSA” – Another lawyer. Your views on your role at JSA?

JSA is a great institution. We have carefully created the firm architecture to reward and celebrate merit. No one is an “owner” of this firm – each partner will inexorably retire. No partner is required to contribute capital on entry, or would get to take out goodwill on retirement.  We run a pension plan for partners who have spent time building the firm.

To say that clients go only to a particular person and not a firm is short-sighted.  It is the firm that enables that person to grow and build a reputation for himself and for the firm. I am lucky to have had two of the best mentors any lawyer can dream of having – Berjis Desai, our Managing Partner, with whom I moved into JSA, and Jyoti Sagar, our Founder Partner.  They have let me grow, build and nurture my practice in the firm, and all credit goes to them for playing that role.

“Somasekhar Sundaresan is a lawyer who has a life, very unlike a corporate lawyer who does things he likes and has a good life” – someone who is known to you. Most corporate lawyers don’t seem to have a life, or at least that is the assumption. How do you create a work – life balance?

I wish I could balance even better. I currently swing between a very hard working year and a hard-playing annual expedition. I would love to bring a better balance between the two. Hopefully more short vacations, which are genuinely vacations, and more balanced workdays. If the mobile phone and blackberry are working, one cannot be on a vacation – which explains my choice of remote wilderness outside telecom reach for my vacations.

I ensure that I do a fair bit of non-law reading every week. I have been reading a lot about religion from an anthropological and cultural / sociology point of view, distinct from getting involved in any scholarly theocratic analysis. The working of the human mind is a fascinating area, and the impact of religion on the human mind, makes a compelling case for non-law reading. Most of my friends regard my columns and writing as work since they are about the law. I teach the takeover regulations in Government Law College’s securities law course – again refreshes my mind immensely.

How did it feel to be a finalist on the Titan Be More challenge?

Indifferent. I got nominated and went along with the flow and ended up a runner up.

What’s next on your agenda? Transition from corporate lawyer to politics?

Can’t say yet. I would be lying if I said I would not work on any opportunity to make a larger impact, but the timing, the environment, the company I get to keep, the terms on which I can contribute are all important aspects to be borne in mind. Whether politics is the platform for this, I can’t say.

Picture Courtesy: Titan