In this blog post, Varsha Balasubramanian, a student at School of Law, Sastra Law College and pursuing a Diploma in Entrepreneurship Administration and Business Laws from NUJS, Kolkata, describes the role of a solicitor in Bombay.
Who are solicitors?
Solicitors are those who advise the clients and draft documents and pleadings for the clients but engage advocates to appear in the court on behalf of the customer. They can cover large clientele, unlike the advocate who has a limited number of clients because they have to advise and appear for them in the courts. Solicitors are experts in advising clients on a wide variety of legal matters and are also adept in drafting corporate documentation for various transactions, negotiations and deals.
Solicitors mostly work on a retainer basis for large businesses s for a handsome remuneration. As their job is to only advise the clients it is easier for them to get many clients and handle them on a steady basis. Commercial clients call in solicitors for advice on matters including litigation, property, tax and finance. Private client work usually involves personal legal matters such as wills, property conveyance, divorce and custody.
Solicitors need a broad range of skills such as drafting, in depth understanding and interpretation of a variety of legal issues as well as being able to communicate with clients and develop good working relationships with them. They need to be able to work in close collaboration with colleagues, pay close attention to details and be willing to work long hours. They also need initiatives and good judgment to work with complex information. Solicitors need a good deal of patience because they might have to advise clients who will be laymen on the contrary advocates or barristers who have to argue in the courts face the Judges who are well versed in the legal aspects of the case.
There was a clear and marked difference between Solicitors and Barristers under the UK model of the legal system, whereby appearances in many forums were restricted to Barristers. However, these have also changed over the years, especially, after the change in statutory provisions post-1990. This started moving towards new structures and enhanced cross professional work after that.
What is the difference between a Solicitor and Barrister?
A Solicitor is a qualified legal professional who provides expert legal advice and support to clients. A Solicitor’s client can be individual people, groups, private companies or public sector organisations. After taking instructions from clients, Solicitors will advise on necessary courses of legal action depending on their areas of legal expertise. Most Solicitors in the UK are primarily litigators, although many Solicitors specialise in specific areas of law and some do their advocacy cases.
A Barrister provides specialist legal advice and represents individual people and organisations in Courts and tribunals and through written legal advice. In general, Barristers in England & Wales are hired by Solicitors to constitute a case in Court and only become involved once advocacy before a Court is needed. The role of a Barrister is to “translate and structure their client’s view of events into legal arguments and to make persuasive representations which obtain the best possible result for their client.”
What is the role of a solicitor in Bombay?
In Mumbai (Bombay) the British solicitor barrister system is in vogue, though this is not the necessary critical legal structure today. Legally, all advocates, solicitors, lawyers can deal with both advising and pleading in the Indian judicial system. However, solicitors who go through a rigorous process are respected for their depth of knowledge and have a special status in Mumbai, the commercial capital of India. Further, the Supreme Court also recognises the Solicitors registered with the Bombay Incorporated Law Society, thus, effectively giving them a special status though it is not necessary that a solicitor cannot plead in the court. This hard rule of separation of duties between a solicitor and an advocate/barrister is no more and was strictly followed only in the British era.
To become a solicitor, a candidate has to complete three years of clerkship with a senior solicitor and then pass the solicitor’s examination conducted by Bombay Incorporated Law Society. Clients in Mumbai prefer to deal with solicitors, and some of the large firms do not allow non-solicitors to become partners.
The Bombay Incorporated Law Society, Mumbai, India, regulates solicitors in India.
The Recent improvements in the system for appearing in the Courts of England
For an Indian lawyer aspiring to become a Solicitor of the Supreme Court of England and Wales they have to no longer travel to that country to take the eligibility exam– Qualified Lawyers Transfer Test– as centre centres have been launched in New Delhi and Mumbai from April 2006. It is also expected that with the demand growing, more centres will come up where the same exam will be made available in future. Indian lawyers desirous of taking this exam should have registered with the Bar Council of India and must have at least two years experience in courts.
“Indian lawyers are welcome in the UK. Steps are being taken to increase the accessibility of Indian lawyers to English courts. This is one such step,” British High Commissioner Sir Michael Arthur said launching the QLTT (now called QLTS) in India. He said the “positive development” demonstrates the “growing practical cooperation” between India and the UK, not just in the legal sector but so many areas. This should increase the confidence of overseas firms investing in India, as they will be doing business with more Indian lawyers with additional qualifications.
Without passing the QLTT (now called QLTS), an Indian lawyer could practice only Indian law in England, but would not be able to do activities reserved for solicitors like conveyancing, applications for probates and litigation.
The tests will be conducted twice a year. These measures are expected to increase the number of Indians who take this exam to grow substantially from the around 5,000 who have taken it in the past.
“With the increasing globalisation of legal firms, today’s lawyers often find that being qualified across several jurisdictions enhances both their practice and their international marketability,” said Daniel Shepherd, trade policy adviser in the British High Commission.
The process of becoming a Bombay Solicitor
For becoming a solicitor under the Bombay Incorporated Law Society, the minimum eligibility criteria is that the person should have completed his BL or LLB degree or should be a student having completed at least one year of a three-year degree course or at least three years in a five-year degree course.
After that, they must have served a three-year clerkship with a solicitor firm. Only members of the Society with at least five years experience can take two articled clerks under them. Under, exceptional, circumstances and with the permission of the president of the Society, a member with over ten years experience can take three articled clerks. Such members to accept articled clerks must be in practice on their own or associated with a firm of lawyers.
The training during the clerkship covers s analysing practical issues of law to be addressed. This should ideally start with a study of the bare statute and related rules, gaining a comprehensive understanding of the subject matter and the legal provisions in detail.
Once the primary legal position has been comprehensively understood in respect of the practice issue of law to be addressed, then the same could be polished and fine tuned by doing research on electronic platforms and past cases to support the analysis.
After the legal position is appropriately analysed and digested, there should be a process of preparing a written briefing to the senior. This is a crucial part of the training and learning as drafting is a key expectation from solicitors. Written briefs enable gaining the skill of analysing the law, application of the legal position to the given situation is explained, and appropriate conclusions are drawn from that place. These skills mould the article clerk into the right direction for becoming a solicitor.
The exams, which can be taken only after completing the articled clerk service, for becoming a Solicitor consists of six papers which cover subjects as under:
- Practice and Procedure
- Corporate Law
- Commercial Laws
- General Acts
The solicitor exam of the Bombay Incorporated Law Society is understood as a very tough exam with the pass percentage being in lower single digits each time. These exams are tough for the reason that the best of India’s legal talent should be permitted to be solicitors and they must have in-depth knowledge of all legal topics to ensure that the clients are well guided.
As opposed to this, the QLTS, which provides a gateway for Indian lawyers to re-qualify as solicitors in England and Wales, does not require any internship to be undertaken. The primary requirement is that the person has to be a qualified lawyer under the Indian regulatory scheme.
Further, the exam for QLTS is also more focused on a multiple choice test type assessment and also a separate practical assessment as against the theoretical papers, which one will have to take on in the case of the Solicitor’s exam conducted by the Bombay Incorporated Law Society.
It should be noted that the difficulty of the exam itself leads to many refraining from even attempting it as it consumes a crucial period of the law student or graduates time (inclusive of clerkship). Hence the conductors of such examinations must consider the idea of making the rules and the papers less stringent so as to encourage more to take up the exams and become solicitors.
http://www.flelearning.co.uk/previous-events/britainbeckonsindiansolicitors and The Hindu online edition of India’s national paper 18th November 2005