solicitor

In this article, Aishwarya Kantawala, who is currently pursuing M.A. IN BUSINESS LAWS, from NUJS, Kolkata, discusses Solicitor system in Bombay.

Solicitor system in Bombay

  • In 1894, The Bombay Incorporated Law Society was incorporated. It was an institution consisting of articled clerks, catering to the training of them before they stepped into the real world as attorneys.[1] Commonly, we hear students doing professional exams such as Chartered Accountants, Company Secretaries, Cost Accountants etc. The competitive edge in students today is ever growing. It is important to multiply your career prospects by becoming qualified to achieve a certain standing.
  • The existence of such institutions is for the sole reason that there has to be a committee or authority to regulate the working of such professionals. In the hands of a qualified authority, it would be efficient and well handled. One cannot issue such responsibility to private organizations. In addition, such institutions have been statutorily formed such as for chartered accountants by The Chartered Accountants Act, 1949[2] or The Institute of Company Secretaries of India [3] for company secretaries. Contrastingly, The Bombay Incorporated Law Society is a private organization which possesses the power to grant the title of ‘solicitors’ to individuals. There is no college per say that deals with a Solicitorship Program.

In Mumbai there exists ‘The Bombay Incorporated Law Society’ that deals with the ‘object of supporting and protecting the character, status and interest of the legal profession, generally and particularly, of solicitors and attorneys.’[4]

  • The vogue of Solicitorship is limited in India, as there is no difference in the concept of solicitor practice and advocate practice in India. Both litigating counsels, as well as non-litigation ones, are lawyers, unlike in the United Kingdom where barristers argue in court and solicitors don’t.
  • Following British Traditions like many, there is no consolidated platform to define the importance of becoming a solicitor in India, unless it is for personal growth and résumé enhancement. In this essay, the Rules of Articled Clerks as available has been used to understand the Solicitor System in Bombay, this will help understand the rules, syllabus, conduct, examinations, requirements, qualifications etc.[5]
  • Surprisingly, there is no concrete definition provided in The Advocates Act, 1961 or elsewhere, the most common idea is that an articled clerk is a solicitor.

However, Section 34 specifies Power of High Courts to make rules providing for the holding of the Intermediate and the Final examinations for articled clerks. Section 58AG doesn’t apply as it refers to articled clerks before the 31st December 1980 to be added in the roll of advocates.  

Qualification to become an articled clerk

Rule 2 closely defines persons who can apply to become articled clerks, hence who can be solicitors. The Bombay Incorporated Law Society Rules extent to define who qualifies to apply for becoming an articled clerk, as follows-

  1. A person attending the 3-year LLB Course of a recognized university in India, who has successfully passed the first year of the course, being Semester I and II (In India, any law practitioner has to complete the L.L.B (full form) and then appear and pass in the All India Bar Council Exam. The academic degree to qualify to become a lawyer is LLB, it is only three years if the applicant has already completed an undergraduate degree from a recognized college in any field);
  2. A person attending the 5-year L.L.B Course of a recognized university in India, who has successfully passed the third year of the course, being Semester V and VI. (as mentioned earlier, one has to appear for the LLB to qualify to give the Bar Council Exam. The academic qualification to become a lawyer can be pursued in two ways being a graduate or a non-graduate (12th standard – HSC pass). If you are a graduate you can apply for the three-year course, however if not then the 5-year course. The 5-year course is an integrated course which involves two years of a graduate program, in my case being the BLS (Bachelors in Legal Science) or in other cases Bachelors in Arts. After which from the third year, the actual law degree i.e. the legal subjects commence. The syllabus being the same, one only has to be spend 5 years (saving one year of graduation).
  3. And any person who is a legal practitioner and has been registered on the rolls of any State acquired with the Bar Council of India certificate.[6]

Any individual fitting successfully in any of the above-mentioned criteria can apply to become an articled clerk. It is not possible to become a solicitor without becoming a lawyer. A solicitor with a specified period of already accumulated practice, he/she gets to enroll as an Advocate-on-Record with the Hon’ble Supreme Court of India. Hence, it is conclusive that one has to be an advocated under the Advocates Act, 1961 to become a solicitor.[7]

Often, we see our classmates beginning their articles at an early age being the third year of the 5-year program and the first year of the 3 year LLB program. Before appearing for the Solicitor’s exam, the applicant has to have been in practice for at least 3 years. This means that he/she will do their article ship under a senior professional and will be assessed for the same. Then they have to give an examination which according to the result publication in April 2016, only 11 students passed the examinations.[8]

Qualification of Supervisors/Those who can accept articled clerks

According to the Bombay Incorporated Law Society Rules, only the following individuals can accept ‘Articled Clerks’ being-

  1. The Bombay Incorporated Law Society members who have the least of 5 years standing being an advocate as well as a solicitor, can accept two persons as Articled Clerks. There is no restriction in what environment such individual has to thrive in, being a law firm, partnership, individual practice etc. All these are permissible modes of professional practice.
  2. There is an exception where only Bombay Incorporated Law Society members who have at least 10 years standing being an advocate as well as a solicitor, with express permission from The President of the BILS, can accept three persons as Articled Clerks.
  3. Any members willing to accept Articled Clerks shall have an active practice in India, holding a valid Certificate from the State Bar Council, or should be an Advocate on Record of the Supreme Court of India.
  4. Prohibitions to accept Articled Clerks apply to the following-
  • In private employment
  • Supervisor is under suspension by the Bombay Incorporated Law Society
  • Supervisor is under suspension by the State Bar Council
  • Supervisor is named on the non-practicing list of Advocates of any such relevant Bar Council[9]

Application to appear for examination

The application to appear for the Examination for the first time after completion of the period of Articles shall be presented with a petition in Form 4 to the Society praying that he may be examined as to his fitness and capacity to be member of the Society and he shall annex to the petition the following-

  1. A copy of the Articles;
  2. His affidavit of service as Articled Clerk;
  3. The affidavit of his supervisor certifying that the articled clerk has served the term of his Articles in a diligent and honest conduct, further mentioning that there is no cause to prohibit him from appearing in the examination.
  4. Also, Testimonials as to his character by two members of the Society of at least ten (10) years standing.
  5. All the requirements as mentioned above and along with Form 5. Application with fee of Rs. 1,500 to the society which is non-refundable[10][11]

Articles: Procedure

  • The period of Articles should be 3 years starting from the date of Articles and ends on the 3rd anniversary of that date. Unless this has not been completed i.e. the Articled Clerk has not been working under his supervisor or his supervision which ought to be certified in writing, he would not be eligible to give the examination. The importance of experience is stressed upon in qualifications of solicitors. According to Section 5, on being accepted as an Articled Clerk the following procedure has to be followed duly.
  • The one accepting the Articled Clerk ‘Supervisor’ has to sign Articles with such Articled Clerk in Form 1 which is basically an ‘Articles of Agreement’ made and entered between the supervisor and the articled clerk. This also has a clause confirming that this Articled Clerk has successfully completed First Year LLB at the respective University or in other cases, where the articled clerk is already an LLB graduate from the respective university and accordingly holds a practicing certificate issued by the Bar Council of the respective state. It has to be noted that the Articled Clerk has agreed with the Supervisor of his / her own free will to serve a period of three (3) years as an Articled Clerk.[12]
  • Also, there has to be proof of qualification that has to be presented to the supervisor. This is followed by a binding clause between the articled clerk and supervisor in accordance with the Rules Relating to Acceptance of Articled Clerks, Syllabus and Conduct of Examination (“Rules”) of the Bombay Incorporated Law Society. Then, the clause of being faithful and diligent and professional adherence is added.

FORM 1

  1. In Form 1, there is an important clause that the Articled Clerk will not at any time during such term cancel, obliterate, injure, spoil, waste, destroy, embezzle, spend or make away with any of the books, papers, writings, documents, money, stamps, chattels or any other property of the Supervisor or his clients. This serves the purpose in benefit of both parties, the articled clerk to understand professionalism and in the process, the supervisor shouldn’t end up with losses in any sphere. This agreement also includes maintenance of confidentiality, abiding by rules of ethics and professional conduct.
  2. The agreement also protects the Supervisor where, if the articled clerk causes any damage or loss to him/her, even if not intentional through misbehavior, neglect or misconduct then the Articled Clerk has to restore such damage, loss and reimburse such loss to the Supervisor or to the law firm or the client(s) to whom such damage was caused. This clause leaves no room for excuses or mistakes on part of the Articled Clerk. Diligence is specifically mentioned as to obey and execute all lawful and reasonable directions of the Supervisor, not departing or absenting themselves from service unless if due to an illness or unavoidable cause without the consent of the Supervisor first obtained. Faithfulness has to deal with honesty, conduct and being bound to the truth.
  3. There is also an agreement of consideration or salary which will be decided upon to be paid by the Articled Clerk to the Supervisor on or before the execution of such agreement. The functions of the Supervisor are to accept and take the Articled Clerk as his / her Clerk, followed by teaching, instructing and training. He/she undertakes to do the same while practicing and professing as a Solicitor.
  4. On completing the terms of articles the Supervisor has to make an affidavit certifying the fitness of the Articled Clerk to appear for the examination conducted by the Society under the Rules. In cause the Supervisor discontinues the practice or profession as an Advocate or is suspended from practice by the Society or Bar Council on request of the Articled Clerk, the supervisor will execute an assignment of the present Articles of Clerkship to be accepted and entered into by another member of the Society eligible to accept Articled Clerks. This is Form 3 which has a prescribed format which has to be signed by the ‘future supervisor.’ Form 1 has to be signed in the presence of a witness.

Such articles of assignment have to be filed with the Society within thirty (30) days of the execution. The documents required to be accompanied with The Articles or the Assignment are as follows-

  1. Affidavit of the attesting witness
  2. True copy of the passing certificate of the First-Year Examination (of the three year LLB course) or the passing certificate of the Third-Year Examination (of the five years LLB course) or the Practicing Certificate issued by the Bar Council
  3. Filing fees as stipulated in Rule 6, which is the fees payable to the Society for filing Articles Assignment is Rs. 1,500/-  and depends on the amount prescribed by the Managing Committee.[13]

Syllabus

The syllabus is generally fixed however the recent case laws, legislations and amendments within six months prior to the month in which the Examination is to be held, are excluded. Only case laws from A.I.R. (Bom.) and A.I.R. (SC) / Supreme Court Cases (SCC) of a period of three years immediately but before six months prior to the month in which the Examination can be utilized. This is necessary as the students should have adequate time and preparation focusing on the quality of education rather than quantity.

Examination

The Society conducts periodically, Examinations of Articled Clerks. These are held in the summer session i.e. April/May and winter session being October / November every year. [14]The dates are decided by the Member-in Charge of Examinations. One cannot be an eligible for enrollment as a solicitor, member of the society unless they have passed all the examinations. The procedure is as follows-

  1. The Articled Clerk will be required to first appear for the Examination (taking at least three papers) latest within one year of the completion of the period of his Articles.
  2. If the Articled Clerk fails to attempt an Examination within one year, the Articles stand lapsed. In case an articled clerk has not completed the full period of his service or after the expiry of the said period of one year, he should file a petition to The President of the Society showing good cause.
  3. An Articled Clerk shall be required to pass in all the six papers and secure an overall passing percentage of 60% within six successive Examinations conducted by the Society.
  4. If the Articled Clerk does not pass in all the six papers or does not secure an overall passing percentage of 60% within the said six successive examinations he cannot forward the credit for any paper in which he passed and will be required to for all the six papers again.

Before being admitted to the membership of the Society and being entitled to call himself as an Advocate and Solicitor, the articled clerk is required to pass the Examination. As mentioned earlier a Member-in-Charge of Examinations conducts the examinations in consultation with the members of the Examination Sub-Committee. Wonderfully, this examination is under the invigilation of a sitting Judge of the High Court of Judicature at Bombay whose consent for the purpose shall be obtained by the Member-in-Charge of Examinations. The judge will be provided with a proposal of examiners by the Member-in-Charge for his approval. In addition to which the judge has to approve of the Examination papers proposed to be set. This is important as the experience of the learned judge can be helpful for insights into various subjects and trending issues, furthermore having a member of the judicial body is extremely encouraging. There is lesser room for misdemeanor. If such Judge does not approve of any question proposed or marks awarded by any examiner in relation to the Examination, he is entitled to discuss the matters at issue with the examiner. The decision of the judge is final. The answers given by the Articled Clerks to the questions set in each paper, in the examination is evaluated by the examiner concerned and the marks awarded by the examiners shall also be submitted to such Judge. [15]

The order of papers is as otherwise notified, to be as follows: –

Paper No.1: Practice and Procedure

Paper No.2: Corporate Law

Paper No.3: Conveyancing

Paper No.4: Taxation

Paper No.5: Commercial Laws

Paper No.6: General Acts

  • The candidate is at liberty to select appearing for all the six examinations together but not less than 3 papers at a time.
  • By default, every attempt would involve doing three subjects which will be a one-year period. There are situations where the candidate does not secure 60% which is the aggregate passing percentage mandatory.
  • Then, they can reappear in a maximum of three papers of his choice in which he has passed in order to secure the requisite overall passing percentage of 60%. The passing marks required in each subject is 50 marks and the overall passing percentage is 60% that is 360 marks out of 600 marks for all six papers.[16][17]

An interesting concept is that the Managing Committee can decide an examination to be conducted with the help of an “open book” where Articled Clerks may refer to bare Acts/Rules.

Disability or death of the supervisor

Unfortunate circumstances arise where the supervisor may die or be disabled, for obvious reasons the articled clerk cannot continue his/her term there. Hence, the same procedure is followed where another member of the Society eligible to accept Articled clerks does so. According to Rule 8, a period of 45 days from the date of death or disability of the supervisor shall be deemed to be sufficient to enable the Articled Clerk to sign Articles with another member of the Society eligible to accept Articled Clerks. [18]

Prohibition from holding office/business/employment

According to Rule 10, No person who is articled is to hold any office or engage in any business or employment whatsoever other than as Articled Clerk to his supervisor, unless partners or member of a law firm. [19]

Miscellaneous

The Society recommends payment of a reasonable amount as a stipend to Articled Clerks. [20]

Disqualification

Rule 14 mentions that if any person who has been guilty of fraud, dishonesty, unprofessional conduct or conduct that is disgraceful or is a person of a doubtful reputation is to be disqualified from Articles. Further, unless the President of the Society orders in writing, a person has taken the benefit of the law for the relief of insolvents, shall not be accepted by any member as an Articled Clerk. This amounts to disqualification. [21]

Any Canvassing i.e. in simple terms the obtaining of any information or questions in relation the set examination is forbidden. On attempts for the aforementioned which could be direct or indirect resulting in or attempting to influence, this will be reported to the Member-in-Charge of the Examination. The Member-in-charge on being satisfied and seeking the truth or real in consultation with the President, disqualify the Articled Clerk in question. There is no clarity on the procedure followed i.e. the situations can be of two types i.e canvassing during the examination or Canvassing information was received outside the premises, also whether the student is allowed some leeway to advocate him or herself. He/she should be allowed to file a reply as such arbitrary disqualification can be a product of prejudice or bias, this would entirely affect the candidate, hence due consideration, time should be taken to investigate such allegations. [22]

Results, Mark sheet ad certificate of enrolment

The results are declared on the notice board of the Society. As well as the Society’s website www.bils.co.in Mark sheets are made available at the Society’s office for a period of 30 days after results have been declared. Duplicate mark sheets are charged for Rs. 250. The Society will issue to every successful candidate (i.e. an Articled Clerk who has scored at least 50 marks in each paper and at least 360 marks in the aggregate) and who is admitted as a member of the Society, a certificate of enrolment. The certificate must be collected by the successful candidate within 45 days of the declaration of results. [23]

After this every member of the Society shall be entitled to style himself as an Advocate and Solicitor.

References:

[1] http://www.bils.co.in/index.php

[2] The Chartered Accountants Act, 1949

[3] The Institute of Company Secretaries of India

[4] http://www.bils.co.in/About_Us.php

[5] Rules relating to acceptance of articled clerks, syllabus and conduct of examinations

[6] Rule 3, Rules relating to acceptance of articled clerks, syllabus and conduct of examinations

[7] Order IV, Advocates, Rule 5 (ii) (b), Supreme Court Rules, 2013, The Supreme Court of India.

[8] Articled clerks examination held in 2016, http://www.bils.co.in/Articled_Clerks1.php

[9] Rules 1 & 2, Rules relating to acceptance of articled clerks, syllabus and conduct of examinations

[10] Rule 16, Rules relating to acceptance of articled clerks, syllabus and conduct of examinations

[11] Rule 20, Rules relating to acceptance of articled clerks, syllabus and conduct of examinations

[12] Rule 4, RULES RELATING TO ACCEPTANCE OF ARTICLED CLERKS, SYLLABUS AND CONDUCT OF EXAMINATION

[13] Rule 5(a) (i) Rules relating to acceptance of articled clerks, syllabus and conduct of examinations

[14] Rule 15, Rules relating to acceptance of articled clerks, syllabus and conduct of examinations

[15] Rule 17, Rules relating to acceptance of articled clerks, syllabus and conduct of examinations

[16] Rule 16, Rules relating to acceptance of articled clerks, syllabus and conduct of examinations

[17] Rule 18, Rules relating to acceptance of articled clerks, syllabus and conduct of examinations

[18] Rule 8, Rules relating to acceptance of articled clerks, syllabus and conduct of examinations

[19] Rule 10, Rules relating to acceptance of articled clerks, syllabus and conduct of examinations

[20] Rules relating to acceptance of articled clerks, syllabus and conduct of examinations

[21] Rule 14, Rules relating to acceptance of articled clerks, syllabus and conduct of examinations

[22] Rule 17 (iv), Rules relating to acceptance of articled clerks, syllabus and conduct of examinations

[23] Rule 21, Rules relating to acceptance of articled clerks, syllabus and conduct of examinations

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