The phenomenon that the degree of global human interaction increases to such an extent that both its primary effects and the reactions it provokes gives rise to numerous new developments.
Globalisation is caused by three prime movers: technological globalisation, political globalisation, and economic globalisation. The three prime movers initiated a process in which geographic distance becomes less a factor in the establishment and sustenance of bordercrossing, long distance, economic, political and socio-cultural relations and which we call globalisation. People become aware of this fact. Networks of relations and dependencies therefore become potentially bordercrossing and worldwide. This potential internationalization of relations and dependencies causes democratic, environmental, security and social deficits and rebound effects, like a change in attitudes and administrative shortcomings. Globalisation is not only negative. It also includes people in the world community and gives rise to new systems of global governance and a global civil society.
Many see globalisation as a primarily economic phenomenon, involving the increasing interaction, or integration, of national economic systems through the growth in international trade, investment and capital flows. However, one can also point to a rapid increase in cross-border, social, cultural and technological exchange as part of the phenomenon of globalisation. The sociologist,
Anthony Giddens, defines globalisation as a
decoupling of space and time, emphasizing that with instantaneous communications, knowledge and culture can be shared around the world simultaneously. A Dutch academic
Ruud Lubbers, defines it as a process in which geographic distance becomes a factor of diminishing importance in the establishment and maintenance of cross border economic, political and socio-cultural relations.
David Held and Anthony McGrew write in their entry for Oxford Companion to Politics that globalisation can be conceived as a process or set of processes which embodies a transformation in the spatial organization of social relations and transactions, expressed in transcontinental or interregional flows and networks of activity, interaction and power. The globalisation has also far-reaching ramifications on legal profession which has also increased the pace and complexity of law practice. This has led to many lawyers who cannot cope to leave practice. Globalisation has also increased the mobility of lawyers with the right legal skills and experience. Many lawyers are practicing in offshore law firms in the major financial centers of the world. Within India too, domestic lawyers can move to law firms located here, and litigation lawyers can move sideways to non-litigation work or arbitration. In the last few years, many senior advocates have been devoting more time to arbitration practice, especially to international arbitration. The new legal landscape has provided many more practice choices to lawyers.
The establishment of the joint law ventures and law alliances has given greater scope for bright young lawyers to take advantage of the benefits of an integrated offshore law and onshore law practice, in remuneration and acquisition of legal skills and experience in high-end and cutting edge legal work. They have flocked to these firms. Not many of them are being trained in civil litigation work. This is a portent of things to come. It also portends a shrinking litigation Bar.
The informal retainer system also affects the number of firms and advocates that may act against the big clients. A major client can immobilise all the advocates in the large firms with whom it has a strong professional relationship from acting against them. Most advocates divide their time as solicitors and many have to manage their firms as well. The operational number of advocates available for trials on any day is much smaller than is generally assumed.
We may have a potent mix of conditions that inhibit the growth and vibrancy of the litigation Bar. Many litigation lawyers have already succumbed to the pressure of having to keep pace with the courts. A shrinking litigation Bar does not bode well for us. A diminished litigation Bar leads eventually to a diminished Judiciary and a diminished legal system. We should not forget that the administration of justice in court is manifested by judges sitting in open court dispensing justice at public hearings where litigants are given their day of justice through counsel who speaks for their legal rights. The administration of justice needs advocates as much as it needs judges. The new legal landscape will pose greater challenges to the civil litigation bar in the future. They should address their shortcomings quickly and see what has to be done to enable them to discharge their professional obligations effectively in the administration of justice. The elite members of the Bar, viz., the assembly of Senior counsel, have a special responsibility to ensure that the litigation Bar is not diminished in strength, performance and public standing in future, and that the Bar is not lopsided, and overladen with our best legal talents in non-litigation practice.
The lawyers must evaluate their role within the legal profession and in the broader community at a time of rapid social change. The object of this encounter is to promote a re-examination of what it means to be a member of a profession and a legal practitioner in our society today. We must examine the tension which exists between the traditional features of the practice of the law in a learned profession, enjoying important privileges on the one hand and the dictates of modern business practices which impose on lawyers of today obligations to address cost factors and so called "bottom line" considerations on the other. An undue emphasis on economic factors has led, in recent times, to a lessening of sensitivity to, and the importance of, the old ethic and culture of professional service.
The basic questions which are posed are these: is such expressed anxiety nothing more than a nostalgic hankering for a return to "good old days" of legal practice, which were not so good for the consumer after all? Or is our anxiety a last desperate effort to keep alive the flame of professionalism in the face of so much evidence that law is moving in the direction of a business and that the idealism and selflessness of professionalism is finally dying out?
Attorneys practise law in a different way than did their forebears. The best graduates gravitate to huge and impersonal law firms where they are put in a corner and time charging is the rule. Original ideals of wise and dispassionate advice to clients are increasingly enfeebled by a mercantile attitude, which effectively lets the client dictate the course of disputes, without the effective cautionary words, which lawyers previously gave. The role of the lawyer in the old days involved compassion for the client's entire predicament, tempered by detachment and also a measure of concern for the public good. The growing ascendancy of the economic view of law and a decline of its self-image as a helping profession will continue the decline of idealism and professionalism unless this is arrested. Advocates too, are changing their ways. The old days of complete honesty with the courts and candour and honour in dealing with each other has given way to a more ruthless effort to win cases because larger profits which hang upon them, essential to the lawyer's "business". The client becomes a mere "punter". The lawyers become too much caught up in the client's speculation. Whereas, in the past, the advocates would conceive his or her role as being, akin to the judge, the maintenance of detachment, a shift to a business definition of the law embroils the lawyer in the client's cause. It erodes the reality of detachment essential to professionalism.
Unprofitable work is rebuffed by some as a waste of time. Longer and longer hours must be worked to the cost of quality of the lawyer's life. The social environment of the legal workplace has deteriorated .The work satisfaction, which attended much legal practice in the past has been replaced
"by a strictly commercial and entrepreneurial approach to the practice of the law".
Lawyering today is probably of a higher quality and that law firms are "certainly more efficient" today. To some extent this is an inevitable product of new technology and new approaches to office management. Young lawyers today generally make more money than they did in their day, even allowing for inflation.
".....the practise of law is today a business where once it was a
profession......Market capitalism has come to dominate the legal profession in a way that it did not a generation ago. Law firms, whether in 1956 or 1996 have always had to turn a profit if they were to stay in business. But today the profit motive seems to be writ large in a way that it was not in the
past.... Perhaps nowhere in the profession is this tendency more developed than in the emphasis on billable hours. It appears that now clients are insisting on some changes in this form of billing, and perhaps it will not be as dominant in the future as it has been in the past.
Large firms simply cannot economically justify taking on small matters, so they end up with only large clients….large cases…with an enormous amount of time devoted to relatively uninteresting work
....very few of which actually go to completed trial.
There is also a loss of loyalty not only within firms but also between clients and legal firms. Adam Smith, of course, would be pleased with all these developments. There is nothing like market capitalism to bring economic efficiency to any operation. But in the past the idea of a Profession was subtly different, in both self-congratulatory respects, and in other more important respects, from that of a business. There was a personal relationship built up among lawyers in the same firm, which meant that income producing ability, though a very important factor was not the sole basis on which the status of a partner depended. It also meant that between clients, and law firms with whom the clients, and law firms with whom the client had a long-term relationship; there was an element of trust and understanding which may be diminishing today.
Change for the better:
Lawyers should not be adverse to acknowledging that many changes, which alter somewhat the character and activities of the legal profession, often forced upon it reluctantly, have been for the better. Clinging to old ways, just because they are old, is not very rational, least of all in a profession, which boasts of being "learned". Sometimes we have to unlearn bad old habits, which have outlived whatever usefulness they may have had such as the two counsel or the two-thirds fee rule amongst barristers, or the total ban on advertising, or the professionals. Sometimes too we have had to respond to the call for external scrutiny of the way we handle public and client complaints against members of the profession. One does not have to wholly embrace
Richard Ackland's view that lawyers are members of a
Broederbond, or criticism from within that the bar is simply a cartel, to accept that external perceptions are actually often useful and legitimate.
Lord Justice Staughton in England recently remarked that some of the profession's ethical rules appeared to have been simply protectionist and not at all concerned with the public interest or the proper administration of justice. We can now see that at least some of the ethical truisms of the past were less concerned with ensuring right behaviour to clients than with gathering and retaining clients from the ambitions of competitors or stamping a very high degree of conformity on professional behaviour and services. If this may seem to some to be an uncharacteristically muted, grudging, even reluctant concession, it is fair to observe that it is one that would probably not have been offered by many of his predecessors.
If changes, resisted at the time, are now seen to have been
"beneficial reforms" members of the legal profession must keep their minds open to the possibility that other changes, urged today, will in due course come to be seen as beneficial to the ultimate objective of practicing lawyers, which is to ensure that as many people as possible secure accurate advice and competent representation.
It should be acknowledged, both within the legal profession and by its critics, that there remain many, possibly a majority who are as committed to the ideals of service and dispassionate advice as existed in times gone by. Many of them derive from the growth of very large firms with their assignment of unrewarding work to the best and brightest graduates. Such firms themselves must address the growing evidence of lawyer dissatisfaction with their life and work. In part, they do by encouraging a little pro bono work and engagement in professional bodies. But unless a culture of loyalty and self-respect can be restored, the mercantile values of ruthless self-interest will permeate legal practice. This will be to the destruction of the ethos of firm loyalty and client that has existed until now.
The revival of the public debate about what legal professional ethics should be, and the heart-searching within the legal profession itself, signaled by this occasion, make it timely to urge an intensified interest in law schools in the teaching of legal ethics. This is not just a rudimentary training in the provision of the local professional statute, rules of etiquette and, where applicable, book-keeping and trust account requirements, offered in a few lectures thrown in at the end of the law course. It is a matter of infusing all law teaching with a consideration of the ethical quandaries that can be presented to lawyers in the course of their professional lives. Only in this way will law schools provide students with guidance on the professional responsibility and on the ethical issues they will face as they enter the profession. One commentator has remarked, rightly:
"Law teachers cannot avoid teaching ethics. By the very act of teaching, law teachers embody lawyering and the conduct of legal professionals. We create images of law and lawyering when we teach doctrine through cases and hypotheticals".
Professor Ross Cranston in his new book 'Legal Ethics and Professional responsibility' accepts that the technical rules can be left to the practice course but asserts that:
".... all law teachers have a responsibility to give attention to the ethical under-pinning of legal practice. We have a responsibility to sensitise students to the ethical problems they will face as practitioners to provide them with some assistance in the task of resolving these problems, and to expose them to wider issues such as the unmet need for legal services".
The courts and bodies, supervising professional conduct, also have a duty to uphold high standards of honest, faithful, diligent, competent and dispassionate legal advice and representation.
In a time when so many fundamentals are questioned, doubted, even rejected, it is hardly surprising that the ethics of the legal profession should also be doubted by some of its members and attacked by its critics. It is easier to adopt a purely economic or mercantile view of the law if you have no concept of the nobility of the search for individual justice, of the essential dignity of each human being and the vital necessity of providing the law's protection, particularly to minorities, those who are hated, even demonized, and reviled. Without some kind of spiritual foundation for our society we can do little else than to reach back into the collective memory of our religious past or to rely on consensus declarations as to contemporary human values.
The challenge before the legal profession today is to resolve the basic paradoxes, which it faces, to adapt to changing social values and revolutionary technology, to reorganize itself in such a way as to provide more effective, real and affordable access to legal advice and representation by ordinary citizens, to preserve and, where necessary, to defend the best of the old rules requiring honesty, fidelity, loyalty, diligence, competence and dispassion in the service of clients above mere self-interest and specifically above commercial self-advantage, to adapt to the growth and changing composition of our society and of its legal profession. And to mould itself to the fast changing content and complexity of substantive and procedural law. It is quite a tall order. Are we up to it?
The hope must be that some of the old-fashioned notions of selfless and faithful service will survive even these changing times. In the void left by the undoubted decline of belief in fundamentals, we must hope that a new foothold for idealism and selflessness will be found. Despite the beliefs of some of its critics, the Indian legal profession's guiding principles will not be found in economics alone. Still less will it be found in a dogma of free market competition. Economics simply cannot explain the will to do justice, to be dutiful to courts and honest and dispassionate to clients. Modern economic theory, now put into widespread practice, has not done such a good job in terms of social engineering.
The large pool of long term unemployed, the rise in crime, drug use and increased stress within personal relationship all suggest the failure of unbridled economic rationalism as an alternative foundation principle for society.
The great debate for lawyers in the coming century is not whether a separate cadre of advocates will survive. It is not even whether competition and consumer pressure will improve the delivery of some legal services. Of course they will. It is whether the ascendancy of economics, competition and technology, unrestrained, will snuff out what is left of the nobility of the legal services. We must certainly all hope that the basic ideal of the legal profession, as one of faithful service beyond pure economic self-interest will survive. But whether it survives or not is up to the lawyers of today. We should use an occasion such as this to reflect upon the problems that we can see, looming and to examine the sources of our deepest concerns. And then we should do what we can, whilst moving with the times, to revive and reinforce the best of the old professional ideals, to teach them rigorously and insistently to new recruits and to enforce them strictly where there is default. We cannot say that we have not been warned.