Regulating the legal profession

When we eventually fully come out of the current pandemic, the proper functioning of the legal system will be all the more important. There are three core elements that underpin any properly functioning legal system. They are: firstly, an adequately-funded court and judicial system; secondly, the existence of efficient court procedural rules and court structure; and thirdly, the effective regulation of the legal profession. I wish to focus on this third element, the regulation of the legal profession.

Lawyers provide an important public service. They are the interface between the citizen and the dispute resolution mechanism of the state. In broad terms, we all agree to subject ourselves to the law of the land on the basis, at least partly, that if there is a dispute as to whether or not a particular law has been breached, the state will provide a fair mechanism for resolving such disputes. Lawyers are key part of the proper functioning of this process, providing an important public service, which requires effective regulation.

The primary function of any regulator is to protect the public it serves through ensuring adequate accountability and professional standards. In Pakistan, the regulation of lawyers is carried out by the Pakistan Bar Council (PBC) and by the provincial and ICT bar councils. Their primary functions are: admitting advocates and keeping a list of advocates; determining misconduct cases; and safeguarding the interests of advocates. The PBC is also responsible for professional standards; legal education; and supervising the provincial bar councils. Cumulatively, these functions can be put into two broad categories: promoting the interests of the profession (including admittance), and maintaining professional standards (including misconduct).

Non-lawyers may be surprised to learn that the legal profession is responsible for its own regulation. Bar councils are expected to perform the potentially conflicting roles of promoting the interests of lawyers, while simultaneously being responsible for monitoring those very same lawyers. The potential conflict of interest of self-regulation has been recognised in some jurisdictions, such as England, where there are two organisations performing these functions, separately and independently of each other.

The litmus test for any effective regulator is its ability to promote transparency and accountability. In the legal context, on a basic level, this means, how easy is it for a member of the public to find out if a lawyer is licensed? And how easy is it to lodge a complaint? A brief examination of each bar councils’ website gives a flavour of how well they promote transparency and accountability.

The Islamabad Bar Council (IBC) website seems to be primarily focused on catering to members of the profession, rather than to the public. It does not provide the public with access to a list of advocates, nor does it inform the public that such a list exists. The IBC website sets out a mechanism for making an ‘in person’ complaint, but the mechanism outlined is unnecessarily complex and, inexplicably, a Rs1,000 fee is payable. The Punjab Bar Council and the Pakistan Bar Council websites follow a similar template and are focused on assisting the profession rather than assisting the public. The Balochistan and KP Bar Council are slightly better by at least offering access to their list of advocates, through a search function.

However, the only bar council that offers adequate information to the public is the Sindh Bar Council (SBC). The SBC website lets the public know how many advocates it has enrolled, providing a schedule with the full details of all advocates. The SBC website also has a mechanism to lodge an online complaint and lists the cases before its Disciplinary Committee. On this basic transparency test, only the SBC passes. The obvious question is why are all bar councils not as transparent as the SBC? And why has the PBC allowed this apparent discrepancy in performance to persist? The seemingly “hands off” approach by the bar councils (except the SBC) to accountability is arguably at the expense of raising the standards of the profession.

If the other bar councils are seemingly not as focused on public transparency and accountability, then what is their focus? The answer seems to be ‘admissions’. There appears to be a mistaken belief that if bar councils restrict entry into the profession by narrowly interpreting their admission rules, then this will be enough to raise professional standards. Unfortunately, real world evidence suggests otherwise. As a result of this arguably misguided approach, law students are faced with ever-increasing hurdles to gain entry to the profession, regardless of whether or not those hurdles make any practical or logical sense.

An example of this is the requirement under the IBC rules that every application for admission must be accompanied by an “Educational testimonial from Matric to LLB duly attested/verified by Higher Education Commission (HEC)”. The glaring problem with this rule is that a quick search of the HEC website reveals that the HEC does not attest Matric or equivalent, qualifications. Rather than recognising that this rule cannot be complied with and, therefore, should be either amended or not enforced, the IBC insists that all applicants must nevertheless comply with it in the manner interpreted by the IBC. Putting to one side the absence of any proper basis permitting the IBC to “interpret” the rule, insisting on enforcing rules such as this will not raise standards.

Regulation of the legal profession means more than just limiting the number of new entrants to the profession. It also requires those in practice to be accountable for their professional conduct in a meaningful way through both continuing professional development and a transparent complaints procedure. What is arguably needed is a comprehensive joined up approach to regulation with all bar councils in Pakistan actively participating, so as to ensure the proper and effective regulation of the legal profession in the interests of the public and the interests of lawyers.

Published in The Express Tribune, June 13^th, 2020.

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