Missing the Wood for the Trees: How Indian Legal Education Fails to Deliver the Professional Lawyer?

Abstract

In this work, we compare the Indian and American legal education systems, to argue that the former lacks the toolkit to impart professionalism among its graduates. ‘Professionalism’ in American literature means the internalization of legal skills along with values of public service. The formation of these cognitive attributes through law school and formative years is known as ‘professional identity formation’. We refer to the American discourse of professionalism and argue that Indian legal education should switch to the American Bar Association output-based model, thereby creating a clear goal but flexible pathways, allowing for faculty-led innovation in courses, curricula and pedagogy. We also underline other aspects of Indian legal education like faculty shortages and barriers between academia and profession as causative factors preventing the growth of professionalism in law graduates, which may eventually disadvantage them in the global workplace. We call for reform and discourse of the basic attitudes of the Bar Council of India and the legal educators.

Introduction

The legal profession can be seen in a social contract with the society at large, whereby the public grants the profession autonomy through peer review, i.e., the right to regulate entry, mobility and the standards of the profession. ² In return, each member of the profession and the profession as a whole agrees to meet certain correlative duties to the public, including (i) maintaining the highest standards of minimum competence and ethical conduct in order to fulfil the public purpose of the profession to discipline those who are unable to meet such standards; (ii) promoting and fostering the values and ideals that are fundamental to the legal profession; and (iii) restraining self-interest to a certain degree in order to serve the public purpose of the profession. ³

It is open to question whether the Indian legal profession is really discharging its end of the social contract. One could point out to the recent (and not so recent) episodes of violence involving lawyers, ⁴ repeated strikes, ⁵ persistent allegations of wrongdoing and sharp practices against lawyers. The general unsatisfactory situation in the nation’s judiciary can be seen as further evidence of such failure. ⁶ The lawyers have had a poor image in films and public imagination in the country. ⁷ This is generally not the picture that legal services present in mature democracies. To summarize, the allegation against the legal profession in India is that it lacks in the quality of professionalism. Professionalism has a special meaning in American academic literature on the legal profession. ⁸

In the United States, an ecosystem of disciplines, such as law and psychology, applied ethics, legal anthropology, law and emotions, and law and society, has considered this problem of creating a public-spirited lawyer fully equipped with the necessary legal skills. ⁹ The internalization of legal skills along with values of public service is together defined in the American discourse as professionalism (though the exact definition of the term continues to be contested). ¹⁰ The development of the characteristics of professionalism through the law school years and formative years in practice can be called professional identity formation. ¹¹ Professionalism as understood in the United States is a ‘state of mind’ that the lawyer needs to imbibe over and above the skill aspect of legal education. ¹² In the United States, professionalism has been formally identified as an ‘outcome’ expected from legal education, which is to be achieved through clinical courses, experiential learning, training in emotional intelligence (EI), diversity training and more structured instruction in the ethics of lawyering etc. It is noteworthy that this article focuses on the discourse of American professionalism rather than the praxis of it. American legal academia, regulators and the bar have applied their minds to the problem of professionalism and taken certain measures in that direction. Both this ideation and application are largely missing from Indian legal academia. We argue in a step-by-step manner that (i) the vision of an idealized graduate is missing from Indian legal education; (ii) there is regulatory chaos over legal education; (iii) there is a barrier between profession and academia resulting in loss of synergy; and (iv) even within those constraints, Indian law schools generally fail to explore the full potential of standard law school pedagogical methods. We conclude with a call for a discourse around the entire structure of legal education.

The Social Expectations from the Lawyer and the Culture of Self-reflection

In the United States, there has been considerable discourse around the social expectations from the ‘professional’ lawyer. This is reflected in a large amount of academic literature on the subject. ¹³ This academic literature is supported by self-reflection by the legal profession itself. The American Bar Association (ABA), the apex industry body for legal services in the United States, regularly generates reports or surveys on the legal profession shedding light on practices, demographics, challenges, technological training and various other aspects. These reports allow scholars to set expectations about the legal profession and monitor them in real time. ¹⁴

Hamilton and Monson summarize the social expectation of ‘professionalism’ as a tripartite model, whose core is the personal conscience of each lawyer into which the lawyer internalizes the ethics of duty (the minimum standards of the rules and the law of lawyering) and the ethics of aspiration (the core principles and ideals that guide the profession). Ethics of aspiration include continued growth towards excellence at the technical skills of lawyering, a habit of seeking feedback, reflecting and self-assessing, zealous advocacy, loyalty to the client, confidentiality, public service, respect for the legal system and the participants in the system, independence of professional judgement, peer review, integrity, honesty, fairness and self-restraint in seeking sustainable profits. ¹⁵

In sharp contrast to America, the deep culture of research that gives rise to such nuanced reflective ideas as professionalism may be absent in Indian academia. Dasgupta notes traditional legal education in India laid more emphasis on teaching rather than promoting research initiatives by faculty members, ¹⁶ which, as Kumar ¹⁷ argues, might be the single biggest problem of Indian legal academia. Nirma has suggested a slew of measures to promote research, including paid sabbatical and financial incentives for peer-reviewed publications. ¹⁸ All these are yet to be adopted across the board by Indian law schools. Neither the statutory regulator of the legal profession, the Bar Council of India (BCI), nor the private bar organizations like the ones at various High Courts or the Supreme Court Bar Associations or the Society of Indian Law Firms have taken any initiative to generate data streams about the legal profession through structured surveys and reports.

In the absence of data and academic literature, all we are left with is the black letter of legal rules and some case laws. Standards of Professional Conduct and Etiquette reads as follows:

An advocate shall, at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the community, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate…. ¹⁹

The Supreme Court emphasizes the lofty ideal of the profession in this famous paragraph in the Bar Council of Maharashtra v. M Dhabolkar, where it sets out the expectations:

The Bar is not a private guild, like that of ‘barbers butchers and candlestick-makers’ but, by bold contrast, a public institution committed to public justice and pro bono publico service. Grant of monopoly licence to practice law is based on three assumptions (1) There is a socially useful function for the lawyer to perform; (2) the lawyer is a professional person who will perform that function; and (3) his performance as a professional person is regulated by himself and more normally, by the profession as a whole. ²⁰

The Supreme Court has not given useful indications as to what the ‘nobility’ of the profession requires. In the case of Muir Mills Unit of NTC (U.P.) Ltd. v. Swam Prakash Srivastava, the Supreme Court drew a distinction between a profession that requires extensive training, study and specialized knowledge as opposed to an occupation that is considered as work in exchange of a certain wage. It also laid down the historic development of ministry, medicine and law as three professions that require its members to uphold an oath and a higher standard of professional accountability. ²¹ In the case of Rameshwar Prasad Goyal, In Re, the Supreme Court held that the social purpose of the legal profession is to provide justice, but the same nobleness of the profession is lost in the pursuit of commercialization. ²²

In view of the material on record, we would submit that the term ‘noble profession’ presupposes a troika of expectations from the legal profession, namely: (i) higher standards of behaviour than any other profession or occupation; (ii) competence and ability; and (iii) an understanding that legal service is a public service and not a mere commercial transaction. We submit that this understanding is approximately like the American idea of professionalism, though not the same. The theme of lawyers being ‘better’ than wage professionals has never entered American literature and would probably be seen as elitist. The idea of lawyers being officers of justice is clearly directed at courtroom lawyers, the idea of lawyers required to be gentlemen is open to contestation from feminist and progressive standpoints.

The Idea of Professionalism and Output-based Education in the United States

Once the idea of professionalism has been articulated clearly, it is possible to inculcate that into legal education. In the United States, the Carnegie Foundation, the Roy Stuckey Report also called the ‘Best Practices Report’, along with the MacCrate Report have inter- alia considered this problem. ²³ The consensus laid down in the Best Practices Report is that legal education ought to deliver the following outputs or outcomes namely: (i) prepare students for practice; (ii) clearly articulate education goals; (iii) law schools should shift from content-based programs to outcome-based programmes; (iv) the primary goal of legal education should be to develop competence; and (v) law schools should enable students to develop skills of effective lawyers, including life-long learning and self-reflection. ²⁴

Based on these, the ABA in 2008 came up with the ‘Draft ABA Standards and Rules of Procedure for the Approval of Law Schools’ (ABA Standards), which amended the ABA Standards after approval by the ABA. ²⁵ These standards for the first time depart from the ABA’s usual prescriptive input-driven model for legal education (faculty-to-student ratio, infrastructure, size of the library, number of credits required, subjects taught, etc.) to an output-based model. Standards 301(a) and 301(b) of the ABA Standards require law schools to maintain a ‘rigorous program of legal education that prepares its students, upon graduation, for admission to the bar, and for effective, ethical, and responsible participation as members of the legal profession’. ²⁶

These standards, based on the desired ideal of ‘professionalism’ provide educators and administrators with an aspirational goal that they can try to achieve. At the same time, it is sufficiently flexible for law schools to innovate in pedagogy, curricula programmes, etc. The ABA Standards merely give overall directions for instilling ‘professionalism’ in lawyers instead of prescriptive directions. Some of these requirements are: (i) courses on responsibility ²⁷ ; (ii) structured courses on writing ²⁸ ; (iii) experiential courses being a simulation or a clinical course which could be a law clinic or simulation ²⁹ and (iv) field placement. ³⁰

Since 2014, it has been mandatory for law schools in the United States to conform to these standards to receive ABA accreditation. This accreditation is backed by the United States Department of Education. ³¹ Most states would not allow students from non-accredited schools to sit for the Bar exam. ³² Thus, the ABA can both define the desired product and police the outcome. There is clarity in the regulation of legal education and the desired output of the same.

Regulatory Chaos and Lack of Goal Setting in Legal Education

In India, there are three different kinds of centres of legal education, namely (i) law departments of public universities controlled by state and central higher education departments; (ii) national law schools set up directly under the management of BCI under various state legislation; and (iii) private universities with dedicated law schools, which operate under various state laws. ³³ All in all, there are more than 1,600 recognized law schools, ³⁴ including 22 national law schools. ³⁵ In India, legal education is neither fully self-regulated nor state-regulated but lies in a chaotic twilight zone. The universities and law schools are primarily responsible for setting curricula but subject to the powers of the University Grants Commission (UGC) and the BCI.

The BCI is enjoined under section 7(h) of the Advocates Act, 1961, to lay down standards of legal education in consultation with the universities imparting such education. ³⁶ It is alleged that the BCI has never carried out any effective consultation with the universities. ³⁷ However, the power of the BCI under entries 77 and 78 of the Union list read with the Advocates Act, 1961, over ‘the right to practice’ is secondary to that of the UGC empowered under entry 66 of the Union list to regulate standards of education. ³⁸ Accreditation of law schools and law departments is mandatory and is conducted by the National Academic Accreditation Council (NAAC), an autonomous body under the UGC. ³⁹ For law institutions, the BCI can do its own accreditation or work through its members in the NAAC. ⁴⁰ While BCI accreditation is voluntary quality certification, recognition of degrees is a compulsory requirement for legal practice and Bar enrolment. This is the sole prerogative of the BCI. ⁴¹ This allows BCI to ‘inspect’ the premises of law schools and enforce compliance with terms of affiliation. ⁴²

In this regulatory milieu regarding authority over legal education, questions of ownership and authenticity have been lost. Neither the UGC nor the BCI has ever contemplated an outcome-based education (OBE) model, ⁴³ like the ABA. The Indian educators and faculty, therefore, have no focused imagination or vision of a professional to prepare in the absence of such an overarching vision, law schools form different kinds of fragmented professional identities in their students. Anecdotally speaking, an unofficial division of labour has emerged: Public universities prepare trial lawyers and civil service aspirants (banking, judiciary, police and Union Public Service Commission (UPSC)), more prestigious public universities such as Delhi University prepare the Appellate lawyers and higher judiciary aspirants, national law universities prepare the in-house and transactional lawyers and private universities prepare all sorts. Their categorization cannot be attributed to pedagogy or curricula but more as a function of proximity to the English language, class profile of students and alumni networks. Such a categorization is perverse from the point of view of professional identity formation—a student who believes he cannot do any better than scrape a living by his wits in lower courts and cannot afford ethics, or the student who believes he is a businessman and owns no social responsibility, are both developing a cynical attitude towards the profession.

Though neither the UGC nor the BCI provide any vision, they provide very prescriptive and restrictive model curricula. On the face of it, the Model Curriculum for Law as formulated by the UGC in 2001 allows the leeway for universities to either adopt it in toto or accept it with modifications. ⁴⁴ In effect, universities will find it easier to adhere to it, and if there is a drastic departure, then such universities will be answerable to the UGC, which also happens to be the funding agency. The curriculum specifies the courses to be taught compulsorily, duration (units of one hour each), the subtopics to be covered, a select bibliography and even assessment. ⁴⁵ It gives a list of compulsory courses and a tentative list of elective courses. ⁴⁶

After more than 10 years, the BCI came up with its own Draft Curriculum Development Committee Report (BCI report), ⁴⁷ which pertains more to the BA/BSc/BBA LLB (Hons) courses taught by the national law schools. The BCI has taken a stance like the UGC, namely, that this is a model curriculum and not a compulsory one. It also supports ‘faculty sovereignty’ or ‘faculty independence’ in designing courses. ⁴⁸ In the end, it is also a highly prescriptive document that seeks specific inputs: x sqft of classroom, n number of faculty members, s specification for the library, etc. It has also suggested the introduction of the problem method and the case law method, which we believe are already ubiquitous in Indian classrooms. There is no outcome requirement in either of these documents. However, the BCI report does make a requirement for stating the ‘learning objectives’. ⁴⁹ These objectives are about individual subjects rather than an overall objective of legal education. This report has to be read with the overall structure of the BCI rules. The rules specify a list of core courses and a list of elective courses for both 5-year Bachelor LLB Hons and 3-year LLB. ⁵⁰ It allows a list of elective courses and allows the university or school to introduce new electives but within a restricted framework. The Draft Legal Education Rules 2019 do not seem to depart from this framework. ⁵¹ The restrictive nature of BCI’s mandated curriculum on faculty autonomy has been noted by commentators like Nirmal ⁵² and Schukoske. ⁵³

In 2017, the government came up with the Institute of Eminence (IoE) scheme, ⁵⁴ with a view to making Indian universities break into the top echelons of rankings. ⁵⁵ The scheme offered select public and private universities, the freedom from restrictive and archaic regulations of the UGC in terms of admission, ⁵⁶ fixing the fee, ⁵⁷ course structure, ⁵⁸ recruitment of faculty, ⁵⁹ collaborations ⁶⁰ and inspections. ⁶¹ The IoE status will benefit the law schools of the universities insofar as it gives greater flexibility, but IoEs are not exempted from the regulatory authority of the BCI. ⁶² In any case, the IoE is a market-based regulation model, as opposed to the self-regulation model of law. Since the BCI’s authority cannot be dispensed with the IoE scheme, it is likely to have only a marginal impact on law schools.

The Indian regulations at this point fail to articulate a clear goal or standard; on the other hand, they are over-prescriptive in the pathway to be taken. We argue for the exact reverse: a clear ‘goal setting’ by the regulators followed by flexible pathways, similar to the ABA output-based model. We would call for the removal of all BCI and UGC requirements on core courses (that have grown over time), elective courses, advisory on mode and method of teaching, etc. This would restore the initiative to individual law schools and faculty over pedagogy and curricula. This process can start with the IoEs and percolate to the other law schools and university departments.

Legal Academia and Profession in Silos

At the core of the law school lies the ‘specialized faculty’ who are often divorced from legal practice. Tamanaha argues that the ABA regulations compel law schools to offer a particular kind of product, namely, the three-year law degree, ⁶³ and the existence of many tenured faculty directed at the production of legal knowledge without connection to the wider legal practice. ⁶⁴ The competitive pressures of rankings mean law schools focus more on scholarship than on teaching. ⁶⁵ Such a body of research-oriented faculty is necessary for imparting the professional character of the lawyers and reflecting on the profession through legal research. Indian law faculties suffer from two significant problems:

First, Indian universities generally suffer from severe faculty shortages. ⁶⁶ This problem might be more pronounced in law schools or law departments because of the increasing number of such institutions ⁶⁷ and the cost of such tenured track faculty who need to be paid 7th Pay Commission grades. ⁶⁸ All Indian universities, therefore, resort to ad hoc contractual faculty who are paid less to fill this gap. In the case of law schools, the BCI rules itself permit hiring ad hoc faculty members. ⁶⁹ The iron core of the American law schools might be missing in action in India.

Second, though legal academia and practice have been distinct professions from the time of Langdell himself, in the United States there is a distinct and dynamic traffic between legal academics and professionals. In India, there is a regulatory ‘China wall’ between the two streams. Under the BCI regulations, a person with a salaried position cannot practice law. ⁷⁰ This discourages legal professionals from taking up regular faculty positions, and academics from the practice of law, as they must give up their regular salary for this. The UGC has traditionally required the National Eligibility Test examination, which served as an entry barrier to academics. ⁷¹ This ‘China wall’ does not lead to productive academia–profession tension, as in the United States, ⁷² but creates a complete divorce of the legal academia from professional realities. When law students transition to early career lawyers, the ideas of justice and ethics not being contextualized often appear to be ‘academic’, remote and unrealistic. This moral de-conditioning sets them on the path to being opportunistic and cynical.

The Law Commission has belatedly acknowledged this industry or academia divide in its 184th report on ‘The Legal Education & Professional Training and Proposals for advocated Amendments to the Advocates Act, 1961 and the University Grants Commission Act, 1956 (2002)’ and the increased usage of adjunct faculty members. ⁷³ In response to this discourse, the UGC formulated the Guidelines for Empanelment of Adjunct Faculty in Universities and Colleges ⁷⁴ and the Guidelines for Engaging Professors of Practice in Universities and Colleges. ⁷⁵ These guidelines are primarily targeted at creating industry–academia synergy probably with the intention of creating consultancy projects, bringing industry experts to impart industry-relevant skills and deemphasizing academic qualification over vocational skills. ⁷⁶ Such horizontal hires could indeed be a bridge between the profession and academia, giving the students a rounded view of the profession and enhancing their professional capabilities. However, the BCI is still committed to the idea of compartmentalization between academia and profession. The Draft BCI Legal Education Rules, 2019, do not contemplate any role for such ‘professional faculty’, besides teaching clinical papers. ⁷⁷ Thus, in the specific context of legal education, the ideas of UGC and BCI are not in sync. Without this, the free flow between academia and profession legal education will always suffer.

Shift in Pedagogy from Langdellan to Soft Skills

The very restrictive and prescriptive conditions under a scarcity of funds and faculty often denude the Indian legal academia of initiative. The main pedagogy of law teaching in India is the Langdellian case law method, ⁷⁸ not very different from the American law schools. The case law method has been a relative newcomer to India and became mainstream only after the establishment of the first institution in India that identified as a law school, which is the National Law School of India University, Bangalore, in 1987. ⁷⁹ A modern case method may focus less on how the decision departs from an earlier decision and more on the legal and economic aspects of the problem, or its conformity with feminist jurisprudence or critical theory.

The Langdellian case method is directed at developing the brain software central to the lawyer, namely, ‘thinking like a lawyer’. However, this by itself is not sufficient; as Cramton indicates, this tough-minded analytical characteristics neglect human aspects of professional development and the characteristics of imagination, empathy, self-awareness and sensitivity to human problems. ⁸⁰ The American academia seems to have acknowledged the traditional defect in the Langdellan method in imparting interpersonal skills. Clinical courses, experiential learning, training in EI, diversity training and more structured instruction in the ethics of lawyering, etc., are now seen as essential for the development of a harmonious professional identity. We assess these pedagogical methods in India and find them to be deficient.

A. Clinical Legal Education in India and the United States

The legal clinic is an inbuilt counterbalance to the Langdellian law school. It was seen as a methodology ⁸¹ to teach professional responsibility and interpersonal elements of lawyering. ⁸² American law schools have three different types of clinical programmes: simulation courses, externship programmes and live-client clinics. Simulation is a method of teaching in which students are expected to perform as lawyers in a controlled setting. Externship programmes are external to the law school; these include opportunities to work in a professional setting, such as governmental agencies and non-governmental organizations. In-house live-client clinics are traditionally run by law school faculty, which allows students involved in the clinics to engage with clients and learn from their experiences, under supervision. ⁸³

Clinical programmes are integrated with ethical lawyering whereby students are taught clinical skills of interviewing and counselling in an ethics and professional responsibility course. ⁸⁴ Clinical legal education often requires direct or indirect (i.e., on-the-job) training in areas such as interviewing, counselling, negotiating, teamwork, persuasion, professional values, trial and litigation skills. ⁸⁵ Many clinical programmes in the United States receive Federal funds being integrated with access to justice initiatives. ⁸⁶ The clinicians themselves are now deeply integrated into the academic community. ⁸⁷

In India, clinical legal education shares with the United States the ideology (or rhetoric) of social justice, ⁸⁸ but its actual capabilities are far more limited. Clinical programmes though widespread in Indian academia, are not well integrated therein. ⁸⁹ The Legal Education Rules, 2008 (BCI rules) require the presence of a compulsory clinical programme for accreditation. ⁹⁰ It also requires four compulsory clinical papers to be offered by law schools. ⁹¹ There is, however, no requirement of ‘parity’ for clinical teachers in India, unlike ABA standard 405, instead the BCI rules require ‘retired judicial officers or from the Bar, a person with professional experience for a minimum period of 10 years’ to be appointed as a clinical faculty. ⁹² They may be treated as core faculty with a salary in accordance with the UGC pay scale or may be hired on a contractual basis, as per the decision of the university. ⁹³ The Draft Legal Education Rules, 2019, mostly maintain this structure with the small innovation, that part-time or professional lawyers can teach the clinical courses. ⁹⁴

India has not made law school clinics the preferred mode for access to justice programmes. Instead, the state’s efforts in this direction are more oriented at the ‘legal services authorities’ organized at the state or district levels. ⁹⁵ As indicated earlier, the BCI rules do not allow the provision for ‘supervisory attorneys’ or ‘staff attorneys’, who would supervise and mentor law students, when they make an appearance before tribunals and administrative authorities. ⁹⁶ This means that Indian clinics are really all ‘simulation courses’. The Indian law school clinics have indeed made an impact on legal literacy or awareness programmes. ⁹⁷ Thus, in view of the isolation of the legal clinic, from actual practice from the profession and its marginalization within academia, it is unlikely the clinical programmes in India can reach their full potential. ⁹⁸ This mismatch between education and practice has far-reaching consequences on the personal and professional development of lawyers. ⁹⁹

B. Imparting Social and Emotional Intelligence Through Law School Curricula

One of the ways in which law schools can create a different and more sensitive professional is by investing in the social intelligence (SI) of the law students. SI implies ‘the ability to understand and manage people’. ¹⁰⁰ There are many aspects of the SI that law students need to imbibe, like EI, cultural competencies, etc., to be effective as lawyers. The purpose of SI training is not to manipulate people, but merely to understand the behaviour of human beings in a social setting to take ethical and appropriate decisions.

Salovey and Mayer coined the term ‘EI’ as a sub-set of SI in 1990. They defined EI as ‘the ability to monitor one’s own and others’ feelings and emotions, to discriminate among them and to use this information to guide one’s thinking and action’. ¹⁰¹ EI is an actual form of intelligence that can be learned. It has three components, self-awareness of emotions, awareness of the emotions of others, empathetic understanding of those emotions and the ability to use this awareness to guide the actor’s own behaviour and influence the behaviour of others. ¹⁰² Business organizations and nursing institutes already make extensive use of the concept of EI in leadership development programmes. EI is taught in two broad models, namely, the competency and mixed models. In the competency model, an individual is encouraged to develop an empathetic ability, which facilitates understanding and influences the actions of others. In the mixed model, the same competencies are included in addition to a series of psychological traits, such as stress management and motivation. ¹⁰³

There is a long line of literature stressing the role of emotions in a law school classroom. One may point to the influential Cramton, who argues that law schools systematically create a tough-minded, amoral, rational lawyer to the exclusion of the emotional competencies of the students. ¹⁰⁴ Kelton argues that the sole focus of legal education on training students to ‘think like lawyers’ and paying no attention to preparing students to ‘feel like lawyers’ is likely to have long-term negative impacts on their well-being, dealing with emotions, building and maintaining client relations, and their ability to make ethical decisions. ¹⁰⁵ Carrel argues in tandem with us that the impact of artificial intelligence in legal services along with the consequent disruption would require the lawyer to imbibe more EI skills. ¹⁰⁶ In India, the propensity towards physical violence by lawyers and widespread mental health issues ¹⁰⁷ points to low emotional quotient scores, among them.

Many American law schools have already established programmes dedicated to EI. ¹⁰⁸ Indiana University Maurer School of Law teaches courses on ‘project management and EI’. The New York Law School has rolled out an EI training programme as part of leadership training. Stanford Law School offers a course on ‘Lawyers and SI’. ¹⁰⁹ Such programmes need the integration of psychologists and skilled teachers in the legal faculty and as such pose challenges to the manpower management of law school. In India, the entire discourse around EI in law is missing. There is no mention of the same in UGC and BCI rules. There is scarce academic literature on this in India. At present, there does not seem to be any initiative to integrate EI into the Indian law school curriculum. We submit that a crucial competency is missing from Indian legal education altogether.

Another aspect of SI in lawyers is the training in cultural competencies, which is an optional output sought by the ABA Standards. ¹¹⁰ Patel clarifies the concept as understanding the similarities and differences in terms of race, ethnicity, gender, socio-economic background, age and sexual orientation between the lawyer, the client and the other participants of the justice system and how these similarities or differences influence behaviour and expectations. ¹¹¹ To put it simply, cultural competency requires that the lawyer understands himself or herself as a cultural being, addresses his own biases and behaves in a culturally sensitive manner. Within the American understanding, cultural competencies are seen as promoting critical thinking and helping students to understand the hidden biases in law. ¹¹² We submit this kind of awareness in students would assist the students in multi-jurisdictional practice. ¹¹³ Once again, the entire discourse is absent from the Indian legal education.

C. Rethinking Legal Ethics and Professional Responsibility

The greatest difference between the American system of legal education and the one in India would perhaps be the stress on ethics teaching. It has been indicated by scholars like Oliver Wendell Holmes ¹¹⁴ and Kronman ¹¹⁵ that legal education creates profound thoughts and moral imagination. However, most commentators would not consider this moral effect to be sufficient. ¹¹⁶ They would argue that legal ethics needs to be taught in two layers, first, a three-credit course in the first semester of law school, then an advanced course in the final one. The preliminary course could be taught as a part of civil procedure, a required orientation programme, or a short separate course. Coverage would include attention to ethical codes, regulatory structures and the concept of professional roles. ¹¹⁷ The advanced course can be taught with attention to ‘professional responsibility’ issues. It could be a course on the same title or part of another subject such as criminal procedure, negotiation, trial advocacy or a clinic or skills development programme. ¹¹⁸

Beyond that, it requires to be taught in a pervasive manner, i.e., legal ethics requires to be integrated with the legal curriculum. On the one hand, it will require enhancement of students’ capacity for reflective moral judgement. Rhode ¹¹⁹ gives an example of the confidentiality requirement. It is possible to foster a critical assessment of the bar’s sweeping confidentiality obligations by testing their premises against philosophical critiques and actual experiences of other professional groups. On the other hand, it will require students to be given access to logical and philosophical tools for ethical inquiry. The pervasive method would make teaching legal ethics similar to teaching legal methods (case law, deductive reasoning, etc.). ‘Thinking like a lawyer’ would become ‘thinking like an ethical lawyer’. Presently, the traditional, final semester, ‘Ethics and Professional Responsibility’ course seems to exist side by side with several innovative ethics courses. ¹²⁰

In India, the UGC curriculum makes it mandatory to teach a paper on ‘Legal Profession and Legal Ethics’. ¹²¹ The course as mandated by UGC is more directed towards a lawyer’s reflection on the legal profession (e.g., social background of lawyers or law as an instrument of social change, etc.). ‘Professional Ethics’ is tagged with ‘Professional Accounting System’ as a clinical course under the BCI rules. ¹²² A single paper on ethics taught in the final or the penultimate semester does not constitute a pervasive method of ethics. From our experience as educators, we can attest that students are inclined to simply ignore the subject as irrelevant to their future practice. Nor is the course content directed at ethics, particularly applied ethics, which might be relevant to a lawyer, but more directed towards a self-reflection of legal norms of professional responsibility. Rules of lawyer conduct are a set of legally binding rules, whereas ethical lawyering constitutes a framework to choose moral behaviour with or without legal sanctions. We, therefore, conclude that the Indian law students do not receive any structured training in ethics at all.

Conclusion

The Indian legal education system, as it stands today, lacks the blueprint or tools to create a professional lawyer. This is unfortunate because legal practice is becoming more multi-jurisdictional, and in India, the graduates of the Indian law schools find themselves working with foreign lawyers ¹²³ and graduates of foreign law schools. ¹²⁴ There are many legal eagles at the bar, but they remain exceptions, attributable to their own industry and genius, rather than the concentrated effort of the education system; overall, Indian law graduates would find such a competition difficult. It is tempting to ascribe this state of affairs entirely to the regulator and their restrictive regulations; however, legal academia must share the responsibility. Law teaching in India has been seen as a passage of the traditions of the bar and the doctrines of law rather than an exercise in reflection and innovation. In this work, we are more focused on building a discourse; it is possible to suggest four simple attitudinal and systemic changes for the legal profession and academia that would immediately improve the quality of lawyers graduating from Indian law schools. First, create a social discourse around legal professionals and embed that idea in pedagogy and curricula. Second, restore faculty sovereignty in content rather than form in designing courses and pedagogy. Third, prioritize reflection. Finally, break down the barriers between academia and profession, to exchange ideas, experiences and perspectives. We hope to continue this conversation.