Saturday, December 17, 2011

Advocates-on-Record: Name on Rent

Guest Post by Prashant Narang*

The Advocates on Record (AoR) exam results came out recently and only 71 advocates out of around 400 test takers could get through the June 2011 examination. The system is now under challenge in the Delhi High Court in Balraj Singh Malik Vs. Supreme Court of India through its Registrar General WP(C) 8327/2011.

Unlike the Senior Advocate system, AOR selection is neither an ambiguous process nor based on any subjective satisfaction of the Court, but rather is pegged to an objective written exam that aims to create a dedicated SC ‘Bar’ well-versed with the Apex Court rules and procedures. In SCBA v. B.D. Kaushik reported in 2011(11)SCALE72, the Court has explained the SC rules in the context of AoRs:

8. … [A]n advocate-on-record to be the only person to "act" as well as to "plead" before this Court. The other two categories of persons, namely, "senior advocate" and "non- AoR" can only plead, but cannot act on behalf of the client. Their appearances/pleadings in a case before this Court cannot be without an AoR and without his instructions. …[A]n AoR shall, on his filing a memorandum of appearance on behalf of a party accompanied by a vakalatnama duly executed by the party, is entitled to act as well as to plead for the party in the matter and to conduct and to prosecute before the Court all proceedings that may be taken in respect of the said matter. Clause (b) of Rule 6 mentions that no advocate other than an AoR shall be entitled to file an appearance or act for a party in the court. Rule 10 of the Rules provides that no advocate other than an AoR shall appear and plead in any matter unless he is instructed by an AoR, …

Now, non-AoRs do appear and plead in the Supreme Court, although supposedly with an AoR and under his instructions. If the Apex court is marginally different from the High Court in certain procedural aspects such as filing Special Leave Petition, trial courts are nowhere near to the High Courts on this fictional similarity index. Needless to mention, advocates are allowed to file, plead and appear in all other courts and tribunals without passing any special exam.

The SC rules mandate ex-ante ‘instruction’ by the AoR to non-AoR advocates probably to ensure quality of arguments and adequate preparation. The penalty for not actually doing so could be the discretionary imposition of costs on a lawyer for under-preparation or wasting the Court’s time. But imposing a penalty for inadequate preparation does not require AORs. By way of imposing costs, the court can inculcate discipline and raise standards of the court proceedings with or without AoRs.

The other issues with the AoR rule mandating instruction are enforcement and the perverse incentives it creates. Not only does the Court find it difficult to check whether the AoR actually gave instructions before the proceedings, every AoR will find it lucrative to maximize his earnings by way of letting out his name on rent to the maximum number of advocates. This is evident from the Court’s observations in Poonam v. Sumeet Talwar [WPC 86/2000; decided on 22 Mar, 2010]:

19. In Vijay Dhanji Chaudhary Vs. Suhas Jayant Natawadkar (2010) 1 SCC 166, this Court has taken note of the ongoing rampant unethical practice by some of the Advocates-on-Record, duly enrolled under the provisions of the Supreme Court Rules, 1966, as many special leave petitions are being filed by them being merely as name- lenders, without having, or taking any responsibility for the case. As a result of prevalence of such a practice, in such cases, the Advocates-on-Record do not appear when matters are listed before the Court, nor do they take any interest or responsibility for processing or conducting the case. They also play no role in preparation of the petitions, nor ensure that requirements of Rules 12 are fulfilled and defects are cured. If role of an Advocate-on-Record is merely to lend his name for filing cases without being responsible for conduct of a case, the very purpose of having the system of Advocates-on-Record would get defeated.

The usual intuitive response to this problem would be to mandate the presence of an AoR during the hearing. However, the number of AoRs is very limited, and so the case proceedings may have to be adjourned resulting in further delays in the already clogged system. Secondly, it would increase the costs charged by AoRs thereby further raising the cost of justice to the litigant as their input hours would increase. Please note that contingent fees are not allowed in our jurisdiction and lawyers charge ‘per appearance fee’. This would mean double the appearance charges and double the size of the hole in the pocket of the poor litigant.

Another solution that might immediately come to the reader’s mind is to think of a magic number that balances the demand and supply of AoRs. This would be ironic as there is no cap on the supply of lawyers. Moreover, once such a cap is put, the elite club of AoRs would have all the incentives to lobby to minimize its number and maximize their earnings.

Currently the AoR system creates an unnecessary cost of an intermediary who charges hefty prices for letting another lawyer file and plead on his behalf, but hardly adding any value to the process overall. The burden lies on the proponents or supporters of the AoR system to show: a) how the value added by an AoR justifies the costs charged by him and the costs incurred by the system in sustaining this class of lawyers; and b) how this system is more efficient than imposing costs or other kinds of penalties during proceedings to ensure quality. Otherwise, it is difficult to defend this system from the argument that it merely creates a rent seeking class that extracts rent by letting out its name and adding no value to the system.

(* The author is final year LL.M. student at Jindal Global Law School, Sonepat, India.)

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