The judicial system is looking the other way as unscrupulous professional behaviour by advocates is causing distress to litigants and affecting their cases
Lawyers have an illustrious pedigree in India to emulate. Nehru, Ambedkar, and many of the country’s most pre-eminent leaders were trained as lawyers. Yet today, ask a typical litigant what he thinks of the profession and he is likely to regale you with stories of being tied up in court for years and facing unscrupulousness and exasperation.
The plot lines of these stories become predictably repetitive. Lawyers do not show up at scheduled hearings. When they do appear, they are often not prepared. Litigants complain that their lawyers do not keep them informed about their case and that they are charged for hearings where nothing of substance happens.
Ironically, complaints become even more pronounced about high-profile lawyers who commonly overbook their schedules, expecting everyone else to be accommodative. A prestigious law firm employs an associate to follow a well-known senior advocate at the Supreme Court to try to ensure that the senior turns up for scheduled hearings of their client. Double fees have reportedly become accepted practice among many of the biggest names in litigation — one fee to argue a case, another fee to guarantee they will actually show up.
The cost of such behaviour is high not just to clients, but for everyone. When a hearing is rescheduled to accommodate a lawyer, the other side still has to pay its counsel. The public has to pay for the courtroom and the judge. With so much time being wasted, cases take longer, a backlog ensues, and economic efficiency and justice suffer.
The poor are in the worst position to navigate this mess. Take the example of a single mother who was acquitted by a Delhi court earlier this year. She had been detained by the police in 2009 when they (mistakenly) thought she was connected to accused drug dealers in her neighbourhood. With the money she had, she hired a popular, if modestly priced, private lawyer. The lawyer kept missing hearings, which meant that the judge could not decide her case. Frustrated by these delays, distraught from being separated from her epileptic daughter, and unable to get in touch with her lawyer, she sank into depression in jail and attempted suicide. She survived and was eventually freed, albeit traumatised by the four year ordeal.
Why is such behaviour by lawyers tolerated? In private, judges will admit that it is difficult for them to discipline members of the bar. Although lawyers may make their arguments to judges in grovelling terms, it is the lawyers who often have the power in the relationship. Judges fear that if they try to discipline lawyers in their courtroom they will be spoken ill of by the bar: a powerful constituency which could impact their chances of a promotion or post-retirement appointments.
Others fear the possibility of lawyers boycotting the courtroom. Still others think it is simply not worth the trouble of going against a group of which they were once a part of.
Meanwhile, the Bar Council of India has done far too little to rein in errant advocates. Although the Bar Council releases no publicly available annual report, in the little information that is available for 2010-11 their disciplinary committee reportedly suspended only 14 members of the bar in the entire country (by comparison, about 800 lawyers are disbarred and 3,000 suspended each year in the United States).
Part of the problem is that lawyers in India largely police themselves, creating few incentives for them to vigorously enforce high standards. India might learn from the experiences of the United Kingdom or Australia where independent boards, which include non-lawyers, now oversee the profession and attempt to put litigants’ interests first.
Beyond restructuring and reinvigorating the means through which lawyers are disciplined, other steps are needed to curb lawyer misbehaviour. A litigant bill of rights should be widely publicised informing litigants of what to expect from their lawyer and what redress they have available if mistreated. For example, when litigants try to switch advocates, many find their original lawyer refuses to give them back the files related to their case, making it all but impossible to go to a new counsel. Such self-serving tactics should be swiftly punished.
Given the opacity of the judicial system, most litigants find lawyers through personal contacts. As a result, their choice is often based on anecdotes and misunderstandings about what they really need. To help litigants better choose their lawyer, the Bar Council should consider repealing the current ban on advertising for legal services and allow carefully restricted advertising to provide better information to litigants about their options. Similarly, the judiciary could help the public better compare lawyer performance by creating a type of lawyer report card that would detail how often a lawyer missed a hearing or was so unprepared that a hearing needed to be rescheduled.
The legal profession rightly values its independence, but when it fails to self-regulate it makes itself vulnerable to government interference and public condemnation. Many honest and industrious lawyers lament the unprincipled practices of their peers and the time they end up wasting in undisciplined court rooms. It is time for everyone — the bar, the bench, the government, and the public — to demand more from the profession.
(Nick Robinson is a Fellow at Harvard Law School’s Program on the Legal Profession and a Visiting Fellow at the Centre for Policy Research, New Delhi.)