By: Prerna Chopra
I. INTRODUCTION
“I don’t feel stupid, just inadequate. After three years of studying the law, I’m very much aware of how little I know.”
– John Grisham (The Rainmaker)
In the legal profession in India, professional development has traditionally been considered as a one-time affair, occurring at the stage of pre-service education. Increasingly, changing professional needs have compelled some kind of reflection on the need for in-service or on-the-job professional development.
Law being a dynamic field it is imperative for the working professionals to stay abreast of the latest developments which have a direct nexus with the subject. The developments affect the bar and bench equally not to mention the litigants. Hence to serve the greater cause of justice, continuing professional legal education is a sine qua non.
II. WHY DOES ONE NEED TO CONTINUE LEGAL EDUCATION?
“The impetus for the changes is the sense that what has been taught and how it has been taught may be “embarrassingly disconnected from what anybody does,”
– Ms. Kagan, The New York Times
Continuing Legal Education ensures that legal and judicial reforms contribute to changing the attitudes and behaviors of lawyers and citizens. For this reason, Continuing Legal Education should be an integral part of legal and judicial reform strategies that are anchored on the rule of law and reflect a country’s societal values. Legal education strengthens professionalism, builds public confidence, and facilitates consensus and momentum for further reforms. Continuing Legal Education also improves the performance of legal professionals, enhances service quality and stimulates public respect.
The legal service rendered and the courts and the agencies before which we appear deserve a maximum level of competence, which we believe cannot be maintained without regular participation in seminars and other training programs designed to keep the lawyers abreast with developments in his or her chosen field.
Moreover, law is one of the few professions that allows a new admittee to jump right in and start practicing their craft without any required “real-world” training. For example, we would not want a doctor straight out of medical school to take out an appendix without first completing his residency program.
III. HOW TO GO ABOUT IT?
The concept for Continuing Legal Education Programme is as old as the profession itself. Seminars, Conferences, lectures etc are all very regular phenomenon across the country. However, doing the same in a more regularized manner, making it accessible for all and then making it compulsory would go a long way in enhancing the standards and quality of profession.
Activities being contemplated in this regard include full-time certificates, diplomas, accumulation of credit hours of training, and even professional socialization and dialogue in seminars, roundtables and conferences. Online distance learning is the latest development within non-classroom based modes of communication and interaction, and has attracted interest from providers of legal education as well. The training programs should be designed not only to enhance performance but also to instill the values of impartiality, professionalism, competency, efficiency and public service.
(1) Latest developments- Seminar, Conferences, Workshops etc-
“Often people defend the traditional curriculum by saying that we are teaching them to think like a lawyer. . . I say we are teaching them to think like an 1870s lawyer.”
-Dean of Vanderbilt University Law School
The journey of modernization of legal education started under the guidance of the British, but over the years it has failed to impress upon. Although members of the legal fraternity have contributed immensely to the emergence and growth of this nation, the general state of affairs regarding legal education in this country needs a lot of improvement. While other professional courses are surging ahead, this remained rooted in mediocrity. Research and deliberations went on from time to time to improve the system, but still a lot of work needs to be done. Therefore continuing legal education is the need of the hour; legal education should be dynamic rather than static. In order to keep lawyers abreast with the changing law in the society there is a need to organize seminars, conferences and workshops etc both at national and international level on various subjects of law which are still unexplored.
(2) Specialization
“Only by strict specialization can the scientific worker become fully conscious, for once and perhaps never again in his lifetime, that he has achieved something that will endure. A really definitive and good accomplishment is today always a specialized act.”
– Max Weber
Today specialization has become the need of hour irrespective of any profession. Just as many doctors choose specializations outside of family medicine, lawyers also have the option to specialize in different areas of the law. The reasons are for the same as doctors; it can pay both financially and academically, to specialize in a field. For instance, a lawyer may have an active interest in property law or alternatively wants to concentrate on family law in order to gain more familiarity with those sorts of cases and thus make a stronger attorney in court. Also, by specializing in a particular area of law, some lawyers can charge additional fees.
In the present day scenario there is need for the legal professionals to specialize themselves in the particular field of law by enrolling themselves in various short term specialization courses, LLM programmes, distance mode courses etc. which will pay them both academically and financially.
(3) Partnership between colleges and bar/bench:
“Coming together is a beginning. Keeping together is progress. Working together is success”
-Henry Ford
The BCI, state bar councils, state government, UGC and the universities have a greater role to play for improving the standards of continuing professional legal education in the country. They should work in a comprehensive manner without any conflict. They should think seriously to provide the resources both human and financially to all law schools for implementation of the continuing professional legal education. The BCI along with help of academicians and bar should search for improved ways to serve, and always with an eye toward how to better train lawyers and allied professionals to be competent and ethical practitioners.
The 21st century should also consider the globalization and its implementation on legal field at national and international level. The BCI and UGC in the area of computer application and the information technology in the legal field, should explore new avenues and potential use of internet in the practice of law and continuing legal education. They should find out the way and means to meet the new challenges and provide better tools of research and methodology of learning from coming generations.
Further the bar council of India and state bar councils along with universities should start LLM programme on part time basis which should include research methodology, seminars and conferences, practical court training. They should also make sincere endeavor to start with various short term diploma courses in specialized field of law like media law, taxation, etc. which will enhance their knowledge about the subject of their interest in which they wish to practice. The BCI and the universities has to discharge their duties and the responsibilities more religiously and also lay down the standards in terms of class room teaching, practical training and skills, court visits ,moot courts, legal aid work and other practical training programmes for the law students and legal professionals. Further the area of deficiency should be located and corrective measures should be affected with the cooperation of both bar council, which is the governing body and universities, so that the legal fraternity is enriched with the added skill set.
The NLSIU has laid firm foundation in the sphere of Continuing Legal Education programmes. The International Bar Association (IBA) has established an Endowment Chair in this regard. The University has been conducting series of Continuing Legal Education programmes for Lawyers, Judges, Administrators and Law teachers on identified subject areas. Besides, a variety of paralegal and public legal education programmes are part of the teaching and research agenda of NLSIU and the CLE unit.
(4) Training the judges
“Laws and institutions must go hand in hand with the progress of the human mind.”
-Sir Francis Bacon
It is also imperative that continuing Legal Education Centers be set up for keeping abreast the judges particularly in the field of new emerging areas of Law, such as Cyber laws, Intellectual Property matters, matters pertaining to Computer and Internet etc. In these Centers, judges must have an opportunity of interacting with distinguished people from various disciplines so that they can be made aware of ground realities which will help them in effective discharging of their onerous task.
A felicitous initiative in this direction has been taken by setting up the National Judicial Academy in Bhopal which is rightly termed as India’s ‘Think tank on justice’. The National Judicial Academy aims at strengthening the administration of Justice through Judicial Education, Research and Policy Development. It is the constant endeavor of the National Judicial Academy to maximize the scope of learning and to influence judicial behavior for greater efficiency and productivity.
(5) Evening and Weekend Courses
It is suggested that courses must be designed in such a manner that actively practicing lawyers and sitting judges are able to comfortably attend the same. Various one month diploma and certification courses specializing in a particular subject should be conducted during summer vacations which enhance the skill sets of lawyers in their respective subject areas. Also regular short term courses should be started where classes are held only on weekends, keeping the course structure interactive. The assignments if given should be based on practical learning and experiences. A person would become eligible to take this exam after attending a particular number of classes which are spread over a span of time.
IV. TREND IN OTHER COUNTRIES
Continuing Legal Education requirements exist in nearly all developed other countries, such as in United Stated, United Kingdom, Canada, Australia, to name a few. Some jurisdictions such as Israel recommend, without requiring, their attorneys to participate in CLE courses other have made it obligatory.
Continuing Legal Education (“CLE”) is a requirement for attorneys in the United States to maintain their ability to practice law after initial admission to the bar. CLE credit usually have a set class-hour requirement for a period of years, sometimes with specific hour requirements for special topics.
CLE courses are offered throughout the year by state bar associations, national legal organizations, law schools, and many other legal associations and groups such as non-profit CLE providers, as well as other private, for-profit enterprises.
In recent years, many states allow CLE classes to be taken on-line as part of distance education courses or by listening to MP3 downloads, such as www.lawline.com. Often, a portion of CLE requirements may be satisfied through reading and other self-study as well. CLE courses are usually taught by attorneys and cover legal theory as well as practical experiences in legal practice. Classroom materials can be extensive and may represent the most current and advanced thinking available on a particular legal subject. Competency testing is usually not required as part of CLE.
In United Kingdom, the Solicitors Regulation Authority has operated a compulsory Continuing Professional Development (“CPD”) scheme. Solicitors are encouraged to assume responsibility for their own development by choosing from the wide range of activities that can be pursued in order to meet the yearly CPD requirement. Currently, all solicitors and registered European lawyers (RELs) who,
(a) are in legal practice or employment in England and Wales, and
(b) work 32 hours or more per week,
are required to complete a minimum of 16 hours of CPD per year; at least 25 per cent of which must consist of participation in accredited training courses. A solicitor or registered European lawyer must keep a record of such continuing professional development undertaken to comply with these regulations and produce the record to the Law Society on demand.
The continuing legal education in Canada is in the form of CPD (Continuing Professional Development). The CPD in Canada aims at maintenance and enhancement of a lawyer or paralegal’s professional knowledge, skills, attitudes and professionalism throughout the individual’s career. Under CPD lawyers and paralegals must complete in each calendar year at least 12 hours of continuing professional development in eligible educational activities. No less than 3 of the 12 hours must be concentrated on topics related to ethics, professionalism and/or practice management. The Law Society of Upper Canada assumes primary responsibility for delivering the required ethics, professionalism and practice management content subject to the CPD requirement which needs to be met, without charging for program registration or materials.
Participation in courses is accredited based on the following criteria:
• Generally, credit is based on the actual time in attendance at a course.
• Credit is available for participating in “real time” on-line courses, streaming video, web and/or telephone conferences, if there is an opportunity to ask and answer questions.
• Two or more lawyers or paralegals reviewing a previously recorded course together are able to obtain credit.
More over the credit is also available for the following educational activities:
• Participation as a registrant in a college, university or other designated educational institution program, including distance education.
• Teaching (to a maximum of 6 hours per year)
• Acting as an Articling Principal or mentoring or being mentored or supervising a paralegal field placement (to a maximum of 6 hours per year)
• Writing and editing books or articles (to a maximum of 6 hours per year)
• Study groups
• Educational components of bar and law association meetings
The continuing legal education in Australia is in the form of Mandatory Continuing Legal Education (Continuing Professional Development) (MCPL/CPD) scheme provided by the Law Society of New South Wales, Sydney. Under the MPCL the requirement is first practicing certificate and the practicing certificate has an effective start date between 1 July and 31 December, you need to attain 5 units by 31 March. If the effective start date is between 1 January and 31 March there is no need to attain any units by 31 March. Units may be gained through a variety of activities including:
• Attending seminars/conferences/ lectures = 1 unit per hour minus refreshment breaks
• Preparing CLE/CPD lectures = 1 unit per hour – maximum of 5 units
• Presenting CLE/CPD lectures = 1 unit per hour – maximum of 5 units
• Private study of video/audio tapes/DVD = 1 unit per hour – maximum of 5 units
• Publishing/editing articles in law journals = 1 unit per 1000 words – maximum of 5 Units
• On line web based programs = 1 unit per hour
A course of MCLE/CPD must include at least one (1) unit in each of the following fields:
• Ethics and Professional Responsibility
• Practice Management and business skills
• Professional Skills
The Law Society does not have an accreditation process but it provides for “Notes for Course Provider”
Notes for Course Providers
The system of self-assessment underpinning the MCLE/CPD scheme requires individual practitioners to determine the number of units for which he/she will claim credit. The Society suggests that providers use one of the following statements on brochures in preference to making any specific reference to MCLE points or units.
• Version A – long version
Seminars and other CLE/CPD activities are not accredited by the Law Society of New South Wales. Under the MCLE/CPD Rules and Guidelines, if this particular educational activity is relevant to your immediate or long term needs in relation to your professional development and practice of the law, then you should claim one “unit” for each hour of attendance, refreshment breaks not included.
The annual requirement is ten (10) units each year from 1 April to 31 March.
• Version B – short version
If this particular educational activity is relevant to your immediate or long term needs in relation to your professional development and practice of the law, then you should claim one “unit” for each hour of attendance, refreshment breaks not included.
V. RECOMMENDATIONS AND CONCLUDING REMARKS
In the light of the above discussions the following may be suggested which might open new chapters in Continuing Legal Education:-
i. A dedicated umbrella organization should be setup to oversee the Continuing Legal Education programme across the country. In this regard, the newly set up directorate of legal education in India, that will shoulder the responsibility of all things concerning law education, may prepare an action plan on the subject for the next decade.
ii. Make the Continuing Legal Education programme compulsory for all active members of the bar and recommendatory for all members of the Bench.
iii. Under the CLE programme every lawyer must be required to attain certain number of credit points every year. Say 10 points every year or 15 points in 2 years depending upon the consensus formed within the Bar.
iv. CLE Credit Points may be gained attending conferences / workshops / seminars accredited by the Bar Council, by writing articles and other research material and other activities as the Bar Council may recognize.
v. Experienced attorneys may receive credit for speaking or teaching at an accredited CLE program; for moderating or participating in a panel presentation at an accredited CLE activity; for teaching law courses at an Bar Association accredited law school; for preparing students for and judging law competitions, mock trials and moot court arguments, including those at the high school or college level; for published legal research-based writing; and for providing pro bono legal services.
vi. Non-practicing lawyers may elect to be on restricted status. This means they can maintain their law license but do not have to fulfill continuing education requirements.
As we saw through this discussion, Lawyers must be nimble navigators of change and must be ready for the impending regulatory revolution that will affect the profession. Forces such as technology, the government, globalization of commerce, and forms of property are driving change. Attorneys must respond to the need for specialization and expertise in non-law fields. Multidisciplinary practices will grow, where lawyers and non-lawyers work together generating revenues for the same business.