A certain post from my senior colleague Mr. Mustafizur Rahman Khan, Barrister-at-Law (quoted in full below) touched upon the topic of the structure within which legal services are delivered in Bangladesh. This issue is rarely talked about by lawyers of any level in our country, despite being, in my view, extremely important and pertinent.
The legal profession of Bangladesh nurtures very traditional viewpoints and operates in more or less the same manner as it operated for the last 100 years. Generally, not much has changed. Legal practice has remained by and large individualistic, centered around one figurehead – a senior. The only form of teamwork to be found is when the figurehead takes assistance from his juniors. Such assistance is mainly of a borderline clerical nature, and is generally not in the form of an intellectual contribution to the work being done. Certain specialized skills and practices that the juniors have learnt and picked up through experience do come into play, and are the only things that prevents the assistance rendered by juniors from being truly clerical.
This mode of practice was perfectly suited to smaller villages and township economies, where communities play a stronger role. Service providers in a smaller community do not have to cope with much competition. Legal services is one of the most basic services and any community has a limited number of lawyers who cater to its members and are all automatically known well within the community. Word of mouth acts as a sufficient medium of advertising the lawyer’s reputation. In fact, sub-continental lawyers almost invariably come from within families having influence. The traditional structure was essentially developed and designed by them. They weren’t in the profession for the money, but for the prestige. So there would be little uniformity in how they charged for services and limited formality in how they dealt with clients.
Note that even within small communities, lawyers need to advertise. How else would people know he can provide legal services and the services he delivers?
While this mode of practice was suited to Bangladesh till the end of the millennium, the rapid (and unplanned) economic growth in Bangladesh has rendered the traditional structure largely obsolete. The economy now makes additional demands on the legal profession that it generally struggles to deliver. The economy now requires more pre-litigation, “corporate” and advisory work, the kind the traditionally structured legal practices, which are almost always focused on litigation, are not particularly accustomed to delivering. The economy now demands legal work to be delivered quickly, sometimes at the drop of a hat, and in large volumes. It requires efficient management of workloads and maintaining constant and regular lines of feedback and communication with clients at all times. It requires fluid dissemination of information to clients in general so that they know if to seek legal assistance, what to seek assistance on and where to find such legal assistance if needed. These are but a few of the aspects on which the demand for legal services has changed, and the practical and material implications for all of them are huge. Couple these with the fact that modern lawyers are in the profession to earn a good living, and not just for the prestige. It is my observation that the traditional structure is not only incapable of matching up to the demands on it by the market, but in fact, makes it difficult for lawyers to earn a decent living. This translates into an inefficient system that not only fails to sufficiently deliver its workload and compensate the service providers, but also ultimately, directly and indirectly, bars access to proper justice for ordinary citizens.
In my view, there is no alternative to viewing the profession of delivering legal services in Bangladesh as a business, and not just as a profession, where normal rules and norms of business will apply, subject to necessary regulatory oversight of course. In fact, I cannot think of any other way viewing my profession. Let us face it – every lawyer, be he a Senior Advocate or an Advocate, a junior or an intern, a figurehead of a chamber or a “lone wolf”, are in it to earn a living and do business. When you’re chiefly depending on your pursuits and activities in a particular profession to bring your food to the table, there is little scope to argue that you are not in business. Such businesses should be structured as law firms, giving lawyers of many varieties to work within it. This allows specialization, which is, as Adam Smith pointed out, a good thing.
As blasphemous as it may sound, law firms should be allowed to advertise in public and mainstream mediums within a regulated environment. As it is, all lawyers advertise in whatever way they can. Some choose to advertise through word of mouth, some through political or social activities and some through filing Public Interest Litigation. The growth in our economy has ensured that a modern Bangladeshi lawyer can no longer rely on word of mouth in order to be known and in order to inform people how they can serve them.
Contrary to what a lot of my colleagues tell me, I believe that there is a massive demand for legal services in Bangladesh, so much so, that the industry does not even nearly have enough qualified legal professionals to deliver them. There actually is an acute shortage of competent legal professionals. The legal services industry as a whole in Bangladesh lacks the required degree of professionalism – and it is in denial about such issues. In fact, it actually stubbornly refuses to evolve from its nascence.
In fact, many may consider it a blasphemy that I termed the “profession” as an “industry” in “business”. We are collectively yet to wake up to the realization that we are part of something much bigger than just a profession.
Having stated my viewpoints, I once more come back to Mustafiz Sir’s post. Mustafiz Sir, who I can hardly even aspire to emulate as a lawyer, has made a romantic portrayal of a sub-continental Senior Advocate. The portrayal is sufficient to lure any lawyer into elevating to the pinnacle of his ambitions a desire to be a sub-continental Senior Advocate. I however found his post to be hinting that the pathway to being a Senior Advocate may be mutually exclusive to the pathway to being part of a big name law firm. Such a hint, if at all present, must be addressed. I do not find any reason why a Senior Partner of a big name law firm cannot, at the twilight of his career at the law firm, come out and start the dawn of his career as a Senior Advocate, in the same mode of practice that Mustafiz Sir so eloquently portrayed. Such law firms, along with other legal professionals, will then act as instructing firms of such Senior Advocates, while they specialize in courtroom Advocacy. In my mind, I see no reason why the the two cannot comfortably sit together.
I am a legal businessman. I believe in” conducting my practice and leading my legal career within the framework of a firm. But I do not see why I too cannot, at the dawn of the twilight of my life, enjoy the privileges of a Senior Advocate. And hence I too dare to dream.
(Mustafiz Sir’s post dated 19.08.2016 was as follows:
“I am often asked by relatives who have settled abroad about the nature of the legal profession in Bangladesh. They ask about the nature of my specialisation, the firm I work in or whether I am a partner. The more inquisitive even ask about my income, and whether I charge my fees at hourly rates, do I have retainers and so forth.
I explain to them to the best of my abilities the nature of my practice. That it is more organic than structured. That I work with a Senior, but I also handle briefs independently. That the focus of my practice is litigation in the Supreme Court, though I do a bit of commercial arbitration and what passes for corporate practice in Bangladesh. That I do not have any specialisation as such, but the bias is towards judicial review and company law. That I do the odd criminal case when a white collar crime is involved. That I do the private side of public interest litigation, meaning that I represent, for my private interest, the business interest/villain in the piece. That I have even had a ship or two arrested in my time (this last bit my layperson cousins find most intriguing).
I explain to them that law firms are very much in their nascent stage in Bangladesh. I tell them that several of my contemporaries and younger colleagues (some my former students) are making bold efforts in this regard. I tell them that with the economic development of Bangladesh (I always paint a rosy picture of our future), they have good prospects, where the name of their firms will be more prominent than the principals involved. That in time, we too will have our Baker & McKenzies, Clifford Chances and Norton Roses.
Still they struggle to grasp and understand. But what they struggle to understand most, perhaps, is the near mythical figure of the Senior.
I am presently reading “The Rebel: A Biography of Ram Jethmalani” by Susan Adelman. For those of you who may not know, Ram Jethmalini, who is now 92 years old, has a legal career spanning an unbelievable 70 years and continuing, and is a Senior Advocate of the Supreme Court of India. Perhaps the most iconic, colorful and, indeed, controversial figure in the Indian legal fraternity, he famously took on Indira Gandhi during the Emergency, who forced him into exile.
In her book, Ms. Adelman refers to and quotes from the article “India’s Grand Advocates: A Legal Elite Flourishing in the Era of Globalization” published by Marc Galanter and Nick Robinson in the Harvard Law School Programme on the Legal Profession Research Paper Series in 2013.
Galanter and Robinson describe “a stratum of legal superstars in India … who are very much in demand and widely known… the most visible and renowned legal professionals” in the country. They know of no parallels of this position outside of Southeast Asia.
They explain that these grand advocates have a “nuanced knowledge of both formal and informal judicial procedure” and a reputation hard to share with juniors. They have small practices, assisted by a few clerks and juniors (the more observant will note the order in which they are mentioned). They spend most of their time in the Supreme Court and High Court, typically meeting their clients at home or even in the veranda of the Courts.
“The performance of the lawyer is overwhelmingly oral rather than written”, focusing on “courtroom advocacy rather than advising, negotiating or planning”. Their arguments may not, at first glance, appear fully developed in the written submissions, but their oral submissions are, and it is the latter which are cited by the judges in their opinions. They often appear after being briefed by lawyers who act in the capacity of solicitors, to whom they function as barristers. They charge by appearance, not by hour. They appear in a wide range of legal areas, few specializing in only one area of law.
The above perfectly describes the leading Senior Advocates of the Supreme Court of Bangladesh. What impresses me most about these Senior Advocates is their, shall we say, holistic yet practical knowledge and understanding of the legal system and its workings, and the political and jurisprudential wisdom which underpins them. They have no parallel in lawyers I have met practising in other jurisdictions, including countries of the first world. To me, being a witness to the phenomenon of the Senior Advocate has been the most intellectually rewarding aspect of my practice in Bangladesh, much more rewarding than any money I have made, for which I count my blessings everyday. To my younger friends and colleagues, in your urgency to climb the ladder of corporate practice, do not miss out on this privilege.”)