Riding Two Horses

By Sanjay Pinto

What’s  the biggest draw the legal profession? At the end of the day, it's  not money. It’s  ‘independence’.  Lawyers have no masters or employers and are under no one; only accountable to God . Or ‘My Lord’, if you please! But the biggest obstacle for fresh law graduates who have no grandfather or father or god father in the profession is the reality  - of a trickle of vitamin M.  The potential for that trickle to become a torrent is what keeps many going. But after five or six years of college education if you have to put your heart and soul into your work and still not make enough to keep the two together, what’s the way out? Faced with this quandary – of  being ‘legally broke’ or marginally better with a flea bite of a cheque as ‘stipend’, several young, bright law graduates hang up their gowns and  opt for employment.  Often, it’s the monetary factor that  weans away budding lawyers.

The Bar Council of India and of the various States are meant to regulate the legal profession, set and maintain standards and to some extent, spare a thought for  the welfare of advocates on their rolls. There are extremes in this arena – lawyers who reportedly command a crore per appearance and some who find it difficult to make ends meet.  And there is and can be no fixed gestation period. But can there at least be a subsistence stipend prescribed for juniors? Or how about a new genre of ‘gestation period’ lumpsum  insurance that law colleges can collect from day one?!

It’s against this backdrop that I prefer to analyse the Bar Council’s restriction on employment, reflected in Rules 47 to 52 in Chapter VII.

Under Rule 49, “an advocate shall not be a full-time employee of any person, Government, firm, corporation or concern and on taking up such employment, shall intimate such fact to the Bar Council concerned and shall cease to practise as long as he is in such employment.”

The rationale was spell out by the Supreme Court in Dr.Haniraj L.Chulani Vs Bar Council Of Maharashtra & Goa, It observed that “the legal profession requires full time attention and would not countenance an Advocate riding two horses or more at a time”. 

With no disrespect meant to any individual or body, I do want to know why an advocate should not be allowed to have a second income, at least for the first five years after enrolment when the regular income would usually be negligible?  This is not to suggest that an Advocate can neglect his duty to the client. "Upholding the interest of clients by all fair and honourable means" does not necessarily have to do with how many irons in the fire an Advocate has. An Advocate who has a steady flow of another legitimate income is less likely to fleece a client! For an Advocate who does not don any other hat, what happens when several of his or her cases come up in court at the same time? Client servicing can be of the highest order with effective time management and delegation.  Law students are invariably in the forefront of many an agitation but why can’t they take up their own cause, their own  Right To Livelihood (and I’m not talking about the Govt’s  32 rupee a day poverty yardstick, by the way!) flowing from the Right To Live under Article 21 of the Constitution, that includes the right to a living wage?  If not two horses, how about a horse and a pony?! Doesn’t this restriction fly in the face of Art 19 (1) (g) that guarantees citizens freedom to practice any profession or trade?

The ‘two horses’ argument  does not apply to Advocates who are appointed by the Govt as law officers, even though they draw salaries. What’s more, they are allowed to retain their private practice. Members of Parliament who draw salaries can also ride two horses. Extending the ‘undivided attention’  logic to the case of MPs as advocates, shouldn’t the people they represent also be entitled to undivided attention? Unless, ‘we the people’ are viewed as donkeys! How can we have two classes of citizens or professions – one that must suspend practice within ninety days of taking up employment and the other that can go on till thy kingdom come? (Because a lawyer need not retire!) Is this not discriminatory?

There are small concessions for the ‘other class’ in the form of ‘part time employment’ but with a rider. In the opinion of the Bar Council, that job should not be in conflict with the dignity of the profession or affect one’s functioning as an advocate. (Incidentally, a legal commentator once wondered if strikes are not in conflict with the dignity of the profession!) At a practical level, if an advocate has juniors or colleagues in a firm to handle clients and their cases, how is that a problem?

However, the biggest consolation is in the form of Rule 51. “An advocate may review Parliamentary Bills for a remuneration, edit legal text books at a salary, do press-vetting for newspapers, coach pupils for legal examination, set and examine question papers; and subject to the rules against advertising and full-time employment, engage in broadcasting, journalism, lecturing and teaching subjects, both legal and non-legal.” As far as the teaching assignment in a recognised University is concerned, there is a reasonable three hour a day ceiling. 

What if an advocate takes up Consultancy? Quite like the Corporate retainer arrangements many lawyers and firms have. Several senior advocates have clarified that such a scenario does not warrant voluntary suspension of practice. Here the key provision is ‘employment’. What is relevant is the existence of a master-servant relationship. The most telling indication is the form of remuneration. If a Consultant is not on the rolls of a company or organisation,  does not figure in the attendance register,  does not get a ‘salary’; but a mere retainer fee based on invoices raised, is not entitled to provident fund and other benefits, raises service tax, which employees do not remit, the test of ‘employment’ is negative.

The Bar Councils should go by the spirit of the rule and a sympathetic understanding of the ground reality – that legal practice is fraught with a long struggle. In those formative years, why grudge the few bucks an advocate can earn through an alternative source in order to survive in the profession? The highest respect you can show to a profession is to join it! So let  Resul Pookutty, who fulfilled his father's dream by getting enrolled as an advocate, score his melodies in tinsel town and be allowed to have his legal music too!