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The litigants in High Court and Supreme Court often come across a category of lawyers that are different from the usual breed.
These lawyers with a different style of coat and gown, British style tab collars and some of them with a golden pocket watch hanging over the black waistcoat, bring out the class difference.
What is the legal source of this class distinction?
It is the Advocates Act 1961, which classifies lawyers into “Advocates” and “Senior Advocate”.
The Bar Council of India rules prohibit a Senior Advocate from accepting instructions to draft pleading or affidavits, advice on evidence or to do any drafting work of an analogous kind in any Court or Tribunal or before any person or other authorities mentioned in Section 30 of the Act or undertake conveyance work of any kind whatsoever.
Both Supreme Court and High Courts have the authority to nominate Advocates as “Senior Advocates”.
Supreme Court usually designates very few Advocates as “Senior Advocates”. List of Senior Advocates designated by Supreme Court as updated on 1st January, 2013 mentions a total of number of 309 names.
Each High Court follows its own procedure in designating an Advocate as a Senior Advocate. Earlier the High Courts’suo-motu considered certain Advocates as worthy of being designated as Senior Advocate and after obtaining the consent of the Advocate concerned used to designate him as such.
However, the practice that is currently followed in the High Courts is to require a lawyer to make an application to the respective High Court for being designated. This application often has to be supported by two or three lawyers who have already been designated. Upon such an application, the sitting Judges of the High Court (Full Court) express their views through ballot, and according to the majority opinion the Senior Advocate status is either granted or refused.
This system has come under sharp criticism from the members of the legal fraternity. Some veteran lawyers like NGR Prasad describe a senior’s gown, as a “commercial gown”, while other Senior Advocates argue that the system of making an application to become a Senior Advocate is unwise and that, Courts should suo-motu designate advocates who are worthy of the position of Senior Counsel.
There are cases many cases where small time lawyers are designated as ‘Senior Advocate’ from smaller High Courts where they do not have an existing practice, they are designated because of their proximity to the judges.
The procedure of designation by smaller High Courts is like registration of companies in tax haven islands, it is simple and short. This is because in a smaller High Court where bench strength is two or three, all the lawyer needs to do is to get a full court approval of just three judges, whereas in larger High Courts, one needs the concurrence of 40 -80 judges. Once a lawyer gets the “senior gown”, he can practice at any place as there is no name plate or tag attached to him which states that the concerned lawyer has been designated from such and such High Court or Supreme Court. No distinction is drawn between the Senior Advocates designated by the Supreme Court and those designated by the High Courts.
Some of the famous lawyers designated as ‘Senior Advocates’ by various High Courts are Harish Salve, Abhishek Manu Singhvi, Mukul Rohatgi, Arun Jaitley (designated from Delhi High Court). The senior most lawyers like Ram Jethmalani, Fali S. Nariman, and Soli Sorabjee are from Bombay High Court; and Shanti Bhushan was designated by High Court of Allahabad.
Retired High Court judges are another set of people who get a lateral admission to this class. Although Article 124(7) prohibits a Judge of the Supreme Court from pleading in any court or before any authority within the territory of India, there is no such prohibition on former High Court and District Court Judges. A retired High Court judge may practice before another High Court and may be designated as a Senior Advocate if he intimates the Chief Justice of India or Chief Justice of the concerned High Court of his desire to be so designated.
Thus, the process for retired judges of High Courts to be designated as Senior Advocates is easier process. The fact remains that the success rate of retired High Court judges practicing as Senior Advocates is quite low because most of them have not been able to shed the trappings of a judge. In the last year itself the Supreme Court has designated 15 retired judges of various High Courts as Senior Advocates.
The system has also met with some legal challenges. In M.P Vashi v. Union of India [W.P. no. 632 of 2011], the petitioner had argued that the purpose of Section 16 of the Advocates Act is to endow special recognition to certain advocates who have ability, standing at the bar or special knowledge or experience in law so that they can help the courts in arriving at the correct decision, and judges could rely upon their ability and knowledge of law. However, in practice, many designated counsels use their position and influence to charge exorbitant fees from erring multi- national companies and people of wealth, and have no interest in fighting for justice for common man.
Petitioner Vashi in his argument brought out a pertinent point with which most advocates agree. He argued that most designated counsels, by virtue of their weight carry the court with them, and the opponent who is represented by a non-designated counsel is unable to do justice to the poor client, even if he/she has a good case. This is because the designated counsels have some face value than the ‘other advocates’. He argued that there is a monopoly of a few designated counsels who charge fees as per their sweet will without any control; and the middle class often cannot carry the litigation to its logical level for want of money. However, the Bombay High Court in the above case observed that Senior Advocates can charge high fees.
Law is the most sought-after and money spinning career in US, but even the lawyers from US are astonished to hear about the fees charged by some of the star lawyers in our country. Indian senior lawyers have come a long way since the days of legal luminary MC Setalvad who fixed a standard rate of Rs 1,040 for special leave petitions (SLPs) and Rs 1,680 for final hearings three decades ago. In those days, when a Senior Supreme Court lawyer wanted to charge Rs 7,000 per appearance, he was met with strong opposition from the fraternity. Today’s Senior Lawyers argue that with the opening up of the economy and more foreign companies coming in, the landscape of corporate litigation is extremely prosperous, therefore, the fees charged by them are only fair.
However, Senior Advocate Soli Sorabjee has famously disagreed with the view and opined that senior counsels who charge 30 to 40 lakh per day is nothing short of extortion and it is no excuse to say that the client can afford it.
One must understand that the appearance fee charged by Senior Counsels is only the tip of the iceberg of their income source. Many of them charge additional fee under various heads like reading fee, conference fee, settling fee etc. There are few examples who charge for conference in flight, car and even court corridor!One lady lawyer recalls her experience with a Senior Counsel who charges for reading the brief and conference for assisting him and appearance fee separately. Disgusted by the practice, the lawyer told the senior. “Sir, I don’t need a conference, I can’t pay the reading fee, I can only pay your appearance fee”. Only few can dare to say so.
Let us look at the breakdown of the fee charged by Senior Advocates:
a) Retainer Fee
A retainership fee is a fixed amount that a client pays in advance to secure the services of the senior counsel. It is also a method of blocking the best, to ensure that he or she does not appear for the other side.
b) Settlement of brief charges:
Fee charged for vetting the brief already prepared by an advocate. There are Lawyers charging Rs 55000 to 7.5 lakh just to settle a Special leave Petition. The rules of Bar Council of India prohibit Senior Advocates from accepting briefs directly from a client and as a result they deal only with lawyers who instruct them. In addition, the rules prohibit them from taking on any drafting or conveyance work. Settlement or vetting treated as a job outside such prohibition.
c) Conference charges:
A case would also require conferencing with the client. While the first round of conference is included in the total fees, the clients would have to pay additional fees for second round of conference to make the senior understand the case. This amount is charged on hourly basis, and can go up to more than a lakh per hour.
d) Appearance Charges:
This fee is charged per appearance per day. 90 percent seniors would charge even if the case is adjourned. The appearance fee itself falls into different categories like:
(i) Fee appearance in fresh matters: It ranges from Rs-11,000 to 7.5 lakh. A busy senior will have 5 to 20 admission matters in a day.
(ii) Fee for final disposal matters : It is normally double of appearance fee
(iii) Fee for appearing in regular hearing matters (full-fledged arguments): double of appearance fee
(iv) Outstation fee: when the Supreme Court seniors are taken to High Courts, they charge 5 lakh to 50 lakhs per day.
e) Reading fee:
There are few seniors who are charging reading/ preparation fee of the case.
f) Legal opinions/consultation:
In high profile disputes, the practice is to take opinion from senior lawyers in oral and written form. Oral opinions are less costly than written one. This is a good practice area for Government Law officers.
There is another interesting feature in a Senior’s bill. It is known as clearkage. It is normally 10% of the total professional fee. If the appearance fee is 5 lakh, you will be receiving a bill of 5.5lakh. Nobody knows whether it goes to clerk, office expenses or seniors household expenditure.
The clerkage is optional in case of few senior lawyers. In the Supreme Court, there are at least a dozen senior lawyers who make 10 to 50 lakhs per day and more than 100 lawyers who make more than a lakh per day, but very few are sympathetic to a cause or support the court and its infrastructure.
The government law officers like Attorney General, Solicitor General, and Additional Solicitor Generals make a good amount of money when they appear for various State Governments or public sector undertakings. They also charge the same way like others private seniors, when they appear for such entities.
In recent times, the dispute between Ambani Brothers and the Vodafone tax case were the most money spinning litigations. Another good area is hearing constitution bench matters where the hearing goes on for weeks with a single case.While I mention the glamour and richness of few, it is also a stark reality that there are many seniors who just wander around the court, eagerly looking for a brief.
The whole idea behind the classification of advocates into Senior Advocates and others is to develop a specialist class of arguing lawyers who have specialist knowledge or experience of the law, who can assist the court in developing law.
Our Judicial system which places special emphasis on oral arguments has led to a situation where most Senior Advocates have developed ‘face value’. They are afforded a certain ‘indulgence’ by the court and sometimes are able to get hearings that other advocates may not be afforded by the judge.
There are judges who do not relish the idea of a young lawyer arguing on questions of law. However, there are some judges who encourage young lawyers to argue matters before them. Also, when it comes to high stake matters, clients do not want to take the risk of engaging the services of a young advocate who may be pitted against a Senior Advocate in the Court. Some of the seniors are overburdened with work, and people used to wonder how best they can apply their mind when faced with 10 -15 matters a day.
For Indian Courts which suffer from poor case management this only adds to the woes of the litigating public that engages the services of a Senior Counsel. Since in our judicial system it is very difficult to ascertain the date of hearing of a case or when the case will be taken up for hearing in right earnest, to have an expensive Senior Counsel only mounts up the financial burden on the client.
One fails to acknowledge the fact that it is not necessary to engage a Senior Counsel in all matters. Sometimes, Senior Counsels are roped in for frivolous purposes like tagging of fresh matter with an old matter. Even in matters involving Government of India, it is seen that Senior Government Law officers are appearing regularly for tagging fresh matters with old matters, which is a sheer waste of public money.
Another factor that has contributed to the practice of charging exorbitant fees by Senior Counsels is the relationship they share with big Law Firms. Most Senior Lawyers are regularly briefed by big law firms and they have easy access to them. The Law Firms create an impression that they can only make sure the appearance of certain big names in the profession. Both enjoy a relationship of mutualism.
Since Senior Counsels themselves cannot accept briefs directly from a client, some of them recommend names of their favorite firms to the clients and these firms when engaged by the client return the favor by engaging them to represent them in the Court. Thus, instead of simply asking the client to select an advocate of his own choice to brief him, the Senior Counsel deliberately influences the client’s opinion by recommending certain firms and in the process, some of them acts as a facilitator in solicitation of clients by these firms.In addition to this, many Senior Advocates have their own law firms, managed indirectly; these firms operate as active constituencies for their children and relatives who after completing their graduation in law join the family firm.
Here, they are strictly trained to become ‘arguing lawyers’ with no emphasis on drafting skills. The role of drafting and briefing the kith and kin’s of senior lawyers is limited to the other young lawyers working in such firms.
The litigants in our country do not have easy access to information about lawyers and the fees charged by them. They often rely on personal contacts to make a choice with regard to lawyers. If the lawyers are allowed to advertise, such information with regard to their fees and area of specialization will become easily accessible to litigants and will help them in making an informed decision. The Bar Council of India, on the other hand, has repeatedly asserted that it cannot permit lawyers to advertise as legal profession is not a trade or business. It refuses to acknowledge the fact that the belief that lawyers are somehow above “trade” is a historical anachronism, and for a lawyer to advertise his fees cannot undermine true professionalism. They fail to acknowledge that ban on lawyers to actively advertise their services and fees also acts as a restriction on flow of information to consumers.
In Bates v. State bar of Arizona, Justice Blackmun held that “commercial speech does merit First Amendment protection given the important functions it serves in society, such as providing consumers with information about services and products, and helping to allocate resources in the American system of free-enterprise. The Court held that allowing attorneys to advertise would not harm the legal profession or the administration of justice, and, in fact, would supply consumers with valuable information about the availability and cost of legal services.”
BCI can always regulate this right by taking steps that will ensure that the public is not misled. Such steps may include ban on “false, deceptive or misleading” advertising by lawyers, steps to regulate the manner in which lawyers may solicit business in person and issue warnings and disclaimers in this regard and impose other reasonable restrictions on the time, place and manner of lawyer advertising to assure that public is not misled. However, BCI has made it clear that lawyers will not have the right to advertise their fees.
While criticizing the undesirable aspects of the system, we should also not forget the fact that there extremely good senior lawyers who follow professional ethics meticulously.
They just follow the rule book, collect fee only in cheque or draft, refuse to appear in certain gross cases against their consciousness, take care of juniors and office staff properly, and charge only for the services they render.
But the number of such Seniors are dwindling.
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