Article

Continuing Legal Education: Asian Journal of Legal Education

5(2) 152–168
Rethinking Professional © 2018 The West Bengal National
University of Juridical Sciences
Ethics and Responsibility in India SAGE Publications
sagepub.in/home.nav
DOI: 10.1177/2322005818775439
http://journals.sagepub.com/home/ale

Prakash Sharma1

Abstract
The declining standards in legal profession, coupled with loss of public trust and confidence, call for
emphasis on a deeper understanding of professional ethics among lawyers and perhaps articulate a

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different notion of professional responsibility that extends beyond the standards of professional conduct
and etiquette for lawyers. The 266th Report of Law Commission of India highlighted the need to structure

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legal education and to bring ethical standards in legal profession. In this regard, the article proposes to
mandate continuing legal education (CLE) for legal professionals. The purpose of introduction of CLE

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programme is to emphasize upon the quality of advocacy. Further, it was to implement the concept of
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professional responsibility, which provides that a lawyer should represent a client competently. In this
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regard, CLE programme might help lawyers to re-inform, re-imagine and reconstruct the legal profession
in India in ethical and responsible ways. This article discusses the considerations and the process that
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must led to the adoption of the CLE plan.

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Introduction
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A unique aspect of law schools in the United States and other countries is their deep and pervasive
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engagement with law firms, corporations, non-governmental organizations, legal aid centres, think tanks,
government agencies and intergovernmental organizations. Unfortunately, in India, there is little
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interaction between the legal profession and legal academia, let alone any fruitful collaboration. Indian
lawyers almost always lament the fact that law schools in India do not prepare law graduates to engage
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in legal practice, especially when it comes to the lawyers’ actual involvement and contribution to
teaching, training, capacity building and mentoring. Indian law firms see law schools to be purely and
almost exclusively recruiting platforms.2 The collaboration between the domestic bar, international law

1
  Assistant Professor, Faculty of Law, University of Delhi, New Delhi, India.
2
  Gitanjali Shankar and Amba Uttara Kak, Litigation v. Non-Litigation: Practise of Law under the Advocates Act, 3 NUJS Law
Review. 299–321 (2010). No doubt changes must be in consonance with the needs of modern world, see Mary C. Daly, The Ethical
Implications of the Globalization of the Legal Profession: A Challenge to the Teaching of Professional Responsibility in the
Twenty-first Century, 21 Fordham International Law Journal. 1240–1295 (1997). See also, Amanpreet Chinna, Liberalisation of

Corresponding author:
Prakash Sharma, Assistant Professor, Faculty of Law, University of Delhi, New Delhi, India.
E-mail: [email protected]
Sharma 153

firms and law schools can lead to sophisticated training of students, funding of research centres, faculty
and student exchanges, executive and continuing legal education (CLE), and knowledge development
initiatives.3
The article promotes introduction of a programme, which requires all licenced professionals including
judges to complete a postgraduate level legal education programme every few years.4 Why do we need
such an action? How is our plan set up? How is it going to work? The experiment legal profession is
likely going to witness, will it be a risk worth taking? Questions like these need to be answered. Since
countries like the United States have already taken huge strands in making CLE mandatory, besides other
countries are also considering similar proposals, this article welcomes this opportunity to explain the
importance, origin and operation of the CLE plan.

Continuing Legal Education: Meaning and Historical Background

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The CLE (as termed in the United States) or minimum continuing legal education (MCLE) or, in some

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jurisdictions, as continuing professional development (CPD), consists of professional education for
lawyers/attorneys that takes place after initial admission to their respective bars. These programmes

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however differ in various jurisdictions, and were recommendatory initially and later became mandatory.5
Generally, practical experience and independent study advances requisite legal education, CLE connotes
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a formal educational experience, such as a lecture, a seminar or a workshop, related to the practice of law
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and sponsored by a bar association, a law school or an organization which specializes in such advanced
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professional training.
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Indian Legal Services: Politics and Challenges, 12 Oxford University Commonwealth Law Journal. 295, 298 (2013)—author is
of the opinion that Indian legal fraternity and the authorities often argue that due to various restrictions, Indian advocates will not
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be able to compete with foreign lawyers and unless a level playing field is established by removing those restrictions, the Indian
legal market should not be liberalized; Michael Chapman & Paul Tauber, Liberalising International Trade on Legal Services: A
Proposal for Annex Legal Services under the General Agreement on Trade in Services, 16 Michigan Journal of International
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Law. 941–954 (1992); Richard Abel, The Future of Legal Profession: Transnational Law Practice, 44 Case Western Reserve Law
Review. 737–870 (1994)—author gave a detailed effect of liberalization of legal sector in various countries; C. Raj Kumar, Raising
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the Bar for Legal Education, 11 July 2015, The Asian Age, available at http://www.asianage.com (Explaining how Indian law
firms see law schools to be purely recruiting platforms. Author explains how any measure of collaboration between the domestic
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bar, international law firms and law schools can lead to training of students).
3
  See National Knowledge Commission, Report to the Nation 2006–2009 (2009), available at http://knowledgecommissionarchive.
nic.in/downloads/report2009/eng/report09.pdf (Building world-class law schools today will require creatively responding to the
growing international dimensions of legal education and of the legal profession, where it is becoming increasingly necessary to
incorporate international and comparative perspectives, along with necessary understanding of domestic law) Id. at 81.
4
  It can be based on hours, days or weekly basis—depending much on the structure of course emphasized upon. Also, the programme
has to be routinely reassessed. See Douglas H. Parker, Periodic Recertification of Lawyers: A Comparative Study of Programs for
Maintaining Professional Competence, 54 Michigan State Bar Journal. 768–795 (1975); The Honorable Robert J. Sheran &
Laurence C. Harmon, Quality Advocacy and the Code of Professional Responsibility, Minnesota Plan: Mandatory Continuing
Legal Education for Lawyers and Judges as a Condition for the Maintaining of Professional Licensing, 44(6) Fordham Law
Review. 1081 (1976), available at http://ir.lawnet.fordham.edu/flr/vol44/iss6/2. Acted as a catalyst to the usage of CLE programmes,
wherein Burger accepted ‘as a working hypothesis that from one-third to one-half of the lawyers who appear in the serious cases
are not really qualified to render fully adequate representation’, see Warren E. Burger, The Special Skills of Advocacy: Are
Specialized Training and Certification of Advocates Essential to Our System of Justice? 42 Fordham Law Review. 227 (1973).
5
  Within the United States, US attorneys in many states and territories are mandated to complete certain required CLE in order to
maintain their US licences to practice law. Lawyers in various jurisdictions, such as British Columbia in Canada, the Philippines
must also complete certain required CLE. However, some jurisdictions, such as the District of Columbia and Israel, recommend,
but do not require, that lawyers/attorneys complete CLE programme.
154 Asian Journal of Legal Education 5(2)

Evolution of CLE Programmes

Initial CLE activity occurred on a local level. In the spring of 1916, the Association of the Bar of the City
of New York began offering a series of lectures by lawyers with expertise in particular areas for the
benefit of the general practitioner. The lectures became successful and, except for a hiatus during the
First World War, continued into the 1930s.6 Another bar, the Cleveland Bar Association Institute,
launched a CLE programme in October 1931 with lectures by Roscoe Pound.7 By 1938, the institute had
offered 11 lecture series, each of which boosted considerable attendance of lawyers.8 Similarly, state bars
of Minnesota and Wisconsin also developed successful, well-attended CLE programmes.9 These
developments where aiming to bridge gap between law school theories and practical experience—a
concern at present for Indian legal education too.
With the successful efforts of Harold P. Seligson, practitioner by himself founded Practising law
Institute (PLI) and began evening lectures for recent law graduates.10 These efforts got successful and

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expanded as well. Later, it was followed by Herbert Wenig, a San Francisco practitioner, prompting the
Stanford Law Society to conduct a similar lecture series.11 By 1937, the American Bar Association

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(ABA) realized the importance and need of CLE programmes, and resolved to aid practicing attorneys
in their attempts to systematically extend their fields of legal knowledge and to cooperate with state and

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local bar associations to provide opportunities for supplementing the legal education and training of its
members.12 Further in 1938, Federal Rule of Civil Procedure was introduced, which gave much needed
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kick to the CLE movement.
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Post-Second World War situation brought a significant impact. The returning veterans whose legal
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career had been interrupted required upgradation of skills and interim developments. The ABA cooperated
with the PLI in presenting courses. The year 1947 was remarkable. The ABA entered into a memorandum
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of understanding with the American Law Institute (ALI), which created a partnership between the two
organizations in sponsoring CLE activities.13 The ALI assumed responsibility for, among other things, a
national publication programme, coordination and encouragement of state and local CLE efforts, and the
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programme’s financing. The ABA’s responsibilities were supportive in nature. Among the most important
activities were a series of conferences at Arden House, in Harriman, New York. It sets forth the rationale
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for CLE courses:14

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6
  Herschel H. Friday, Continuing Legal Education: Historical Background, Recent Developments, and the Future, 50(3) St.
John’s Law Review. 502, 503 (1976), available at http://scholarship.law.stjohns.edu/lawreview/vol50/iss3/9
7
  Caroll C. Moreland, Professional Education of the Bar: Growth and Perspectives. 3 (1972).
8
  Id. at 9.
9
  Friday, supra note 5 at 504.
10
  Harold P. Seligson, Post-admission Education for Lawyers, 22 American Bar Association Journal. 231–232 (1936).
11
  Sheran & Harmon, supra note 3 at 1082.
12
  During 1937–1940, the ABA aided a large number of state and local bars in the presentation of well-attended programmes, see
Section of Legal Education and Admissions to the Bar, Report, 65 American Bar Association. 342–346 (1940).
13
  The Memorandum has since been amended in 1958, 1970 and 1974, and each time the ABA’s responsibilities within ALI–ABA
have been expanded and its freedom to engage in other CLE activities enlarged. In 1958, the committee was renamed the ALI–
ABA Joint Committee on CLE and in 1974, it was changed to the ALI–ABA Committee on Continuing Professional Education.
Currently, the ABA nominates half of the committee’s members, but has not otherwise shared in any significant way in programme
planning or financing. See Paul A. Wolkin, On Improving the Quality of Lawyering, 50(3) St. John’s Law Review. 523–549
(1976), available at http://scholarship.law.stjohns.edu/lawreview/vol50/iss3/11
14
  American Bar Association, Arden House Conference on Continuing Legal Education, 45(2) American Bar Association Journal
134–142 (1959).
Sharma 155

American lawyers today are confronted with problems of vast and increasing complexity. No law school
education can be expected to deal with all of these problems. A practicing lawyer has an obligation to continue
his education throughout his professional life .… The organized bar has the primary obligation to make this
continuing legal education available to the members of the profession.

In 1973, a widely publicized speech by the United States Supreme Court Chief Justice Warren Burger at
Fordham Law School served as a catalyst to mandatory CLE. Burger viewed the poor quality of American
advocacy as ‘a problem of large scope and profound importance’.15 The view was embraced by others
too; and as a result in 1976, an ALI–ABA catalogue listed 500 programmes in 33 states, and Iowa and
Minnesota became the first states to mandate CLE.16 Not all were persuaded with the views of Warren
Burger. A series of empirical studies took place, claiming otherwise.17 However, such findings had little
to expose but much to hide. In 1986, the ABA adopted a resolution that urged states to consider imposing
CLE requirements, and by the following year, over half the states had done so.18 That trend was

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encouraged further in 1992, when the ABA issued a prominent report (MacCrate Report),19 which
stressed the concept of legal education as a continuum extending throughout the lawyer’s career. Now
CLE is seen as a responsibility of professionalism, though there appears lack of uniformity in such rules.

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Most states adopted CLE by rule of their Supreme Court; a few did so as a matter of statute or bar
regulation. States varied in how many credit hours they required; whether they required separate ethics,

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professional responsibility or substance abuse courses; and whether they imposed special ‘bridge the
gap’ course requirements on new attorneys. c
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Continuing Legal Education: International Trends and Factors

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The international law firms have no interest in appearing before Indian courts or practising everyday
litigation. Instead, with foreign companies coming to India and Indian business expanding overseas,
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international law firms seek to advise a range of clients on matters relating to international law and
arbitration.20 In fact, if international firms come to India, they will be eventually led and staffed by Indian
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lawyers. As international law firms establish offices in India, they are likely to promote a strong culture
of pro bono service, which will hopefully affect the attitudes of lawyers within domestic commercial law
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15
  Burger, supra note 3 at 227.
16
  American Law Institute–American Bar Association Committee on Continuing Professional Education, Report to the American
Law Institute–American Bar Association Committee on Continuing Professional Education from a 1976 Survey of the Experience
of Members of the Bar with Continuing Legal Education Programs (1976).
17
  The most common reason for ineffective performance was inadequate preparation, rather than lack of knowledge, and no
correlation was found between competency and taking a course in trial advocacy. See Jerri D. Gilbreath, Maintaining Competency
Among Lawyers: How Far Have We Come? 24(2) The Catholic Lawyer. 162–174 (1979), available at http://scholarship.law.
stjohns.edu/tcl/vol24/iss2/3
18
  American Law Institute–American Bar Association Committee on Continuing Professional Education, The Report on the Arden
House III Conference—CLE and the lawyer’s Responsibilities in an Evolving Profession (1988). Also see, American Law Institute–
American Bar Association Committee on Continuing Professional Education, Continuing Legal Education for Professional
Competence and Responsibility since Arden House II (1984).
19
  American Bar Association, Legal Education and Professional Development—An Educational Continuum: Report of the
Task Force on Law Schools and the Profession: Narrowing the Gap (1992), available at http://www.corteidh.or.cr/tablas/
28961.pdf
20
  See C. Raj Kumar, Legal Education, Globalisation and Institutional Excellence: Challenges for the Rule of Law and Access to
Justice in India, 20(1) Indian Journal of Global Legal Studies. 221–252 (2013).
156 Asian Journal of Legal Education 5(2)

firms and there will be sharing of best practices and Indian lawyers can, like their counterparts in
developing countries, definitely benefit. This aspect is also shared by the Law Commission of Indian in
its report, which runs thus:21

Legal education in India should be structured in a manner where the BCI, along with legal academics may
endeavour to innovate, experiment and compete globally. A balance should be maintained in order to change the
entire fabric of legal education system in India, keeping in mind the necessity of globalisation.

In recent years, a number of factors have come together to raise the issue of the post-admission
competence of lawyers. Traditional wisdom tells us that a lawyer’s time is his stock in trade. This maxim
is true, as far as it goes, but today’s lawyer needs to offer both society and his clients more than his time
in order to deserve the title legal professional.22 To serve his clients adequately, a lawyer must be able to
apply specialized knowledge in a skilful and effective way. Since the law changes constantly, this is not

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an easy task. In the United States, almost every motivated and conscientious lawyers compulsorily avail
for themselves a voluntary CLE course, besides offerings other means of keeping current. For these

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attorneys, the advent of mandatory CLE simply formalizes practices which had previously been self-
imposed. For lawyers whose skills have been eroded by time, or those who have not stayed up to date,

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mandatory CLE provides the incentive for doing what the present technological and competitive times
so clearly requires. Also, methods of CLE serves a public relations function; wherein the repute of the
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profession would be greatly benefited not only because of the improved competence of young lawyers
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but also because of recognition by the public that the bar is making every effort to give it the very best
of service.
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Legislative Changes
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As mentioned earlier the law changes constantly. One can name almost any field of law and point to
significant developments which have occurred over the last few decades (this has been more so especially
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after the opening up of markets in the early 1990s).23 Explaining this phenomena with some examples—
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21
  Law Commission of India, 266th Report—The Advocate ACT, 1961 (Regulation of Legal Profession) (2017) at 39, available
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at http://lawcommissionofindia.nic.in/reports/Report266.pdf
22
  See Ipshita Sengupta, Nurturing Caring Lawyers: Rethinking Professional Ethics and Responsibility in India, 5 Journal of
Indian Law and Society. 14, 15 (2014)—author is of the view that in light of the declining standards and public trust and confidence
in the legal profession, there is a need to emphasize a deeper understanding of professional ethics among lawyers. See also, Marc
Galanter, Introduction: The Study of the Indian Legal Profession, 3 Law and Society Review. 201, 217 (1969), available at http:/
marcgalanter.net/Documents/papers/scannedpdf/studyoftheindianlegalprof.pdf; Barbara Bezdek, Reconstructing a Pedagogy of
Responsibility, 43 Hastings Law Journal. 1159, 1160 (1991–1992), available at http://digitalcommons.law.umaryland.edu/cgi/
viewcontent.cgi?article=1651&context=fac_pubs; Dallin H. Oaks, Ethics, Morality and Professional Responsibility, 3 Brigham
Young University Law Review. 591, 596 (1975), available at http://digitalcommons.law.byu.edu/cgi/viewcontent.cgi?article=103
9&context=lawreview
23
  See Prakash Sharma, Prison Privatisation: Exploring Possibilities in India (2017)—author demonstrated how opening up of
market have opened unknown and immune horizons for markets. See also Amanda Perry, An Ideal Legal System for Attracting
Foreign Direct Investment? Theory and Reality, 15 American University International Law Review. 1627–1629 (2000)—author
states that the need for any change will bring some structural changes in the public sector, guided by the needs of private sector.
For further insight into the role and functioning of private sector and, thus, making them accountable to public norms, see Peter
Roorda, Internationalisation of Practise of Law, 28 Wake Forest Law Review Association. 141, 146 (1993); Rankin Clyde,
Privatisation in Eastern Europe: An Opportunity America Lawyers, 12 New York Law School Journal of International and
Comparative Law. 357 (1991). With the globalization of legal education, the pace for legal education’s advancement is going to
Sharma 157

we now have the rule of strict liability and polygamy as an offence under Hindu laws.24 Criminal law and
procedure are hardly what they were;25 in both tax and bankruptcy laws, major changes appeared (besides
much imminent are on the verge of being introduced).26 That change occurs constantly can also be
established statistically. Consider these figures: since 1950, the Indian Constitution has contained 101
amendments to its credit. In the last 12 years, 83 ordinances have been passed.27 This is with a strike rate
of almost 7 per year. After the Constitution came into force and till December 2014, the president has
promulgated 679 ordinances.28 Since 2009–2014, a total of 126 bills were passed; in 2014 to early 2017,
the number has already reached to 64.29

Judicial Changes
Similar increases have occurred in the number of cases filed before the Supreme Court of India. This has

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largely been due to the Supreme Court’s effort to establish itself as an accessible and interventionist
court.30 In 1950, a total of 1,215 cases were admitted before the Supreme Court that was raised to 78,444

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in 2015.31 In January–September 2016, a total of 59,386 cases have already been filed. Pendency of cases

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accelerate only; see Mary C. Daly, Thinking Globally: Will National Borders Matter to Lawyers a Century from Now? 1 Journal
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Institute Study of Legal Ethics. 297 (1996); Gautam Gupta & Prakash Sharma, Pretentious Privatisation: Public Law Limitation
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on Governmental Functions, 5(2) Bharti Law Review. 100–112 (2016)—author explains how privatization measures shifts
government responsibilities more towards efficiency over accountability
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24
  In M.C. Mehta v. Union of India AIR 1987 SC 1086, observation made by P.N. Bhagwati were interesting:

It is not necessary for us to consider these decisions laying down the parameters of this rule (Rylands v. Fletcher 1868 LR 3HL
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300) because in a modern industrial society with highly developed scientific knowledge and technology where hazardous or
inherently dangerous industries are necessary to carry as part of the developmental programme, this rule evolved in the 19th
century at a time when all these developments of science and technology had not taken place cannot afford any guidance in
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evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social
structure …. Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic
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developments taking place in the country. As new situations arise the law has to be evolved in order to meet the challenge of
such new situations. Law cannot afford to remain static ….
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Id. at para 31. Polygamy is an offence under Section 494 of Indian Penal Code and Section 17 under Hindu Marriage Act, 1955.
25
  In 2013, amendments to the Indian Penal Code, the Code of Criminal Procedure, 1973, the Indian Evidence Act, 1872 and the
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Protection of Children from Sexual Offences Act, 2012 took place. See Bill No. 63 of 2013, available at http://www.prsindia.org/
uploads/media/Criminal%20Law,%202013/Criminal%20Law%20(A),%202013.pdf. Also see, Law Commission of India, 42nd
Report—Indian Penal Code, 1971, available at http://lawcommissionofindia.nic.in/1–50/report42.pdf
26
  The introduction of Goods and Service Tax (GST), some changes in India’s indirect taxation system is expected. The remarkable
thing about GST is that it avoids cascading of taxes, available at http://www.pradhanmantriyojana.in/gst-bill-explained-what-is-
it-benefits-pdf-latest-news/
27
  These are interim or temporary legislation and their continuance is subject to parliamentary approval. Ordinances remain valid
for no more than six weeks from the date the Parliament is convened unless approved by it. Article 123 of the Indian Constitution
was meant for mitigating unusual circumstances where immediate action is inevitable when the extant provisions of law are
inadequate. See B. Murlidhar Reddy, Modi govt. passes 22nd Ordinance, 17 October 2016, The Hindu, available at http://www.
thehindu.com/news/national/Modi-govt.-passes-22nd-Ordinance-still-short-of-UPA-number/article14596574.ece
28
  Lok Sabha, Presidential Ordinances 1950–2014, available at http://164.100.47.194/loksabha/writereaddata/Updates/
EventLSS_635907162497207518_presidential_address_english.pdf
29
  Data retrieved from PRS Legislative Research, available at http://www.prsindia.org/downloads/bills-passed/2017/
30
  See Nick Robinson, Expanding Judiciaries: India and the Rise of the Good Governance Court, 8(1) Washington University
Global Studies Law Review. 3, 4 (2009).
31
  Supreme Court of India, Indian Judiciary: Annual Report 2015–2016, Part-I, available at http://supremecourtofindia.nic.in/
annualreport/annualreport2015–16.pdf
158 Asian Journal of Legal Education 5(2)

between 1950 and 2016 has seen some phenomenal rise from 690 to 60,938.32 Increase also occurred in
the number of reported judgements. In 1950, there were 44 reported judgements which increased to 921
in 2016.33 For almost 67 years, a whopping 34,110 reported decisions have been arrived at.34 Needless to
explain the rise in the number of sanctioned judges for Supreme Court, from 8 (including Chief Justice)
in 1950 to 31 as of now.35 The increasing backlog of cases and the increasing filings suggest that though
the Supreme Court has expanded to 31 judges, the problem of backlog is only going to get larger. The
popular concept of public interest litigation (PIL), also finds a worthy place statistically. Since its
inception in 1985 to 2016, the total number of letter-petitions received in various languages is 702,524.36

Concerns for Ethical Standards

Further, the original impetus for the CLE in other countries came from within the legal profession. The
legal profession in these countries experimented with alternative methods of improving their legal delivery

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systems. The growth of the ethical movement over the past few years demonstrates the increasing need for
the legal profession to maintain. The Bar Council of India (BCI) on professional standards states that:37

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Advocates have dual responsibility of upholding the interests of the client fearlessly while conducting themselves

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as officers of the court …. they are expected to adhere to the highest standards of probity and honour. An
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advocate’s conduct should reflect their privileged position in society which derives from the nobility of this
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profession. In a nut shell, if you are an advocate your service to the common man should be compassionate,
moral and lawful.
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The concerns about falling ethical standards of the legal profession are growing, both BCI and the legal
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academia have undermined the importance of instilling normative values in lawyers.38 The preoccupation
with legal procedure in teaching and legal practice has lost sight of the fact that procedural guarantees
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32
  Id. at 53–55.
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33
  Information retrieved from the database of Legal Information Institute of India that contains decisions of the Supreme Court of
India from 1950 onwards. The data is based on the Supreme Court of India database as published by the Court’s Judgment
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Information System (JUDIS), available at http://www.liiofindia.org/in/cases/cen/INSC/

34
  Id. Further, at the District level in India, almost around 2.81 crores cases are pending, see PTI, District Courts: 2.81 Crore Cases
Pending, 5,000 Judges Short Across India, The Indian Express, 15 January 2017, available at http://indianexpress.com/article/
india/district-courts-2–81-crore-cases-pending-5000-judges-short-across-india-4475043/
35
  The last amendment to the strength of the judges came by Act No. 11/2009, Lok. Sabha Bill No.41/2008 which increased the
strength from 26 to 31.
36
  Supreme Court of India, supra note 31 at 37. Explaining jurisdiction of Supreme Court other than Original, Appellate and
Advisory, the report reads and explains PIL thus: ‘Any individual or group of individuals either by filing a Writ Petition at the
Filing Counter of the Court or by addressing a letter to Hon’ble the Chief Justice of India highlighting the question of public
importance can move the Court’.
37
  Advocates, in addition to being professionals, are also officers of the courts and play a vital role in the administration of justice,
available at http://www.barcouncilofindia.org/about/professional-standards/rules-on-professional-standards/ Further, rules on the
professional standards that an advocate needs to maintain are mentioned in Chapter II, Part VI of the BCI Rules. These rules have
been placed there under Section 49(1)(c) of the Advocates Act, 1961.
38
  The fault game is not what this article aims at, rather a mirror picture. The BCI established Legal Education Committee under
Section 10 (2) (b) of the Advocates Act, 1961. It is an irony that till now legal academia has not found its apt place in committees
as important as this. At present, just one member represents legal academia. For role, power and functions of such committees,
information is available at http://www.barcouncilofindia.org/about/about-the-bar-council-of-india/committees/
Sharma 159

are a means to the end of truth of justice and not an end in itself.39 The dominant understanding of legal
ethics is constructed in terms of rights where lawyers act by prioritising their individual freedom and
autonomy and undermining the ideals of care and community.40

Review of Various Reports

When one combines this precept with change of the magnitude just described, the conclusion is
inescapable that some formal programme of post-admission education is vitally important to the law’s
continued credibility. Additionally, unless the bar serves its functions adequately, others will act in our
stead. Perhaps, limiting the role of bar would work wonders. In 1988, for example, the law commission’s
131st Report discussed various facets of legal profession.41 Interestingly, the report highlighted the
inadequacy of response from the organized bar. Similarly, the 184th Report highlighted the need of

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reforms in legal education, especially with regards to training of legal professionals.42 The knowledge
commissions in their reports suggested for a regulatory mechanism under the Independent Regulatory

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Authority for Higher Education (IRAHE), vested with powers to deal with all aspects of legal education
and whose decisions are binding on the institutions teaching law and on the union and state governments.43

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And recently, the 266th Report, focused much on the need for realizing a regulatory mechanism to check
professional misconduct.44 Strikingly, none of the reports introduced referred to calling for continuing
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education of professionals in various fields. The need for attorney post-admission education programmes
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39
  See Upendra Baxi, The Pathology of the Indian Legal Professions, 13(3, 4) Indian Bar Review. 455 (1986)—author opined that
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the legal profession, as a learned profession, through its orientation must move towards the pursuit of social goals such as creation
and sustenance of conditions of justice; Oaks, Ethics, Morality and Professional Responsibility. See also, Susan Daicoff, Lawyer
Know Thyself: A Review of Empirical Research on Attorney Attributes Bearing on Professionalism, 46 American University Law
Review. 1337, 1338 (1997), available at http://digitalcommons.wcl.american.edu/cgi/viewcontent.cgiarticle=1406&context=aulr;
rc

Donald Nicolson, Making Lawyers Moral? Ethical Codes and Moral Character, 25(4) Legal Studies. 601, 603 (2005), available
at https://pure.strath.ac.uk/portal/files/2175052/LS_2025_4_20Nicolson_1_.pdf
fo

40
  Sengupta, supra note 22 at 15.
41
  A questionnaire was formed which was sent to the interested parties. The major areas of focus were:
ot

1. The State of profession and its public image;

2. Profession’s attitude towards the policy of social change intended under the Constitution;
N

3. The functioning of the Bar Council’s and the question of disciplinary jurisdiction;
4. The strike by lawyers, its implication and fall out;
5. The question of hobnobbing between Bar and politicians between Bar and the judiciary;
6. Regulation and standardisation of fees chargeable by the members of the profession in relation to the monopolistic character
of the profession.
See Law Commission of India, 131st Report—Role of Legal Profession in Administration of Justice, 1988, available at http://
lawcommissionofindia.nic.in/101–169/report131.pdf

42
  The report was the soumoto effort Law Commission on the subject of legal education, see Law Commission of India, 184th
Report—Legal Education & Professional Training and Proposals for Amendments to The Advocates Act, 1961 and the
University Grants Commission Act, 1956 (2002), available at http://lawcommissionofindia.nic.in/reports/184threport-parti.pdf
43
  National Knowledge Commission Report, supra note 2 at 79. This recommendation, if adopted, would have sorted much of the
concerns for Indian legal education. However, this would be subject of some other paper. See also, Jane Schukoske, Legal
Education Reform in India: Dialogue among Law Teachers, 1 Jindal Global Law Review. 251–279 (2009)—the author discussed
various legal education reforms taking place across the world with respect to the recommendations formed by the report of the
National Knowledge Commission.
44
  Law Commission of India, supra note 21.
160 Asian Journal of Legal Education 5(2)

has, in short, become self-evident. No one seriously suggests that our law schools, now training over
0.4–0.5 million new budding advocates, can meet this need.45 While law school training is satisfactory
for its purposes, the specific skills needed to serve the practical requirements of clients are, for the most
part, learned on the job.46 And, the fact that we need to do a better job with our post-admission educational
programmes, or at least extend their reach and coverage, is furthered by rising malpractice claims against
advocates.47 As in any other professional field, there should not have been any reluctance on the part of
consumers of legal services to make claims for damages where the efforts of the advocate prove
unsatisfactory—however such an important Bill lies unattended.48 Nevertheless, the fact that lawyers are
now potentially liable for the nondisclosure of material information (especially when the member in
bench is somehow related or member of the management of some establishment) is a welcome
development in this area.49

se
To Sum Up

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Now, when one adds up all these factors—the statutory precepts, legislative intervention, increasing
malpractice claims, high-volume legislative and judicial production coupled with rapid technological

ia
change—the question becomes not whether we should have a formalized post-admission advocates
education programmes? But, rather what form such programmes should take? In this regard, one may
c
look for various different proposals, which has been suggested. However, a discussion of the various
er
alternatives to mandatory CLE is beyond the scope of this article. We looked into post-admission plans
m

based upon: (a) systematized peer review, (b) voluntary self-assessment testing, (c) mandatory periodic
testing as a basis for recertification, (d) specialization by a method of certification, or by representation
om

of special competence and (e) improvement of instructional techniques, standards and course offerings
in voluntary programmes.
Further, I am reminded of a former Chief Justice S.H. Kapadia’s words, wherein he emphasized on
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the need for forming an effective framework that encourages budding professionals to play a pivotal role
in the administration of justice. In the same speech, he lamented upon the low state of professional ethics
fo

and called for some system of certification. It is argued that lawyers owe a duty, and rightly so, of
competence to their clients and to the courts. If this obligation exists for lawyers, then I must say, it exists
ot

for all including judges, legal academia, concerned authorities, students and so on so forth. Precisely for
this reason, I conclude that a well-structured CLE programme can be the best practical means to help and
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ensure that this duty is rightly fulfilled.

45
  Bar Council of India, Vision Statement 2011–2013, available at http://www.barcouncilofindia.org/about/about-the-bar-council-
of-india/vision-statement-2011–13/
46
  Kumar, supra note 20.
47
  Chandra Krishnamurthy, Legal Education and Legal Profession in India, 36(2) International Journal of Law and Information
Technology. 245, 260 (2008), available at http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=1136&context=ijli
48
  Efforts to enforce the standards of professional conduct by the proposed establishment of the Legal Services Board through the
enactment of the Legal Practitioners (Regulations and Maintenance of Standards in Profession, Protecting the Interest of Clients
and Promoting the Rule of Law) Bill 2010, available at http://www.prsindia.org/uploads/media//draft/NALSA.pdf. For careful
reading of its provisions, see P. Sailaja, An appraisal of Legal Practitioners (Regulations and Maintenance of Standards in
Professions, Protecting the Interest of Clients and Promoting the Rule of Law) Act, 2010, The Practical Lawyer, available at
http://www.supremecourtcases.com/index2.php?option=com_content&itemid=5&do_pdf=1&id=23267
49
  Bar Council of India, Rules of Professional Standards, available at http://www.barcouncilofindia.org/about/professional-
standards/rules-on-professional-standards/
Sharma 161

Interest in Continuing Legal Education

The various national developments and pressures, all spotlighting the need for more systematic
approaches to the matter of lawyers’ competence, require some concrete shape. Surprisingly, in none of
the reports or judicial pronouncement or even in any academic work, there appears little or no mentioning
for CLE programmes.50 A programme that started almost 100 years back in the United States finds no
takers in India—is something, which is not understandable. Indian legal profession faces austere
challenge of finding fake degrees holders. If BCI’s drive for verification is to be believed, approximately
45–55 per cent of lawyers across the country will risk losing their licence to practise.51 Hopefully, a
serious investigation like this reaches its appropriate conclusion to ensure the continuing competence of
lawyers practicing in various parts of the country. Here is a fascinating fact, in 1972, a New York Times
article writes on how several physicians in Oregon lost their licences to practice when they failed to
comply with a mandatory continuing education programme.52 This was followed by various committees

se
set up for investigating usage of mandatory CLE and other alternatives.53 The findings of such committees
revealed that adoption of CLE courses or programmes is the best solution for infusing ethical standards

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and professional accountability.54
The State of Minnesota, which became the first state in the United States to adopt mandatory CLE

ia
programme on 3 April 1975, took various measures before reaching to any such conclusion.55 The idea
is to prepare an advocate as competent, as knowledgeable, as capable to be able to service the requirements
c
of the society. This could be a model for Indian legal system that earns a bad reputation. Important to
er
note here, is the worthy effort of Minnesota Bar. It was through their initiative that even the bench
m

affirmed to the adoption of CLE programme.56 Perhaps, this could pave way for a better form of
communication among the interested parties, here in India too. Another important consideration is the
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fact that in India, there exists voluntary continuing judicial education (CJE) programmes for judges.57
Various courses or programmes for advocates and judges are been conducted, since the formation of BCI
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50
  Though a slight reference is made in Law Commission of India, supra note 21. It runs thus: ‘The standards of professional ethics
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and behaviour, the training of lawyers and facets of continuing legal education are other areas as well that require a passionate
consideration’. Id. at 55. The former Bar Council Chairman Dr Gopal Subramanium also in one of his speech highlighted for the
ot

need and importance of CLE, available at http://www.barcouncilofindia.org/video-chairman-explains-role-of-all-india-bar-

examination-in-agenda-for-reform-in-legal-education/. See D.M. Popat, Legal Education and Continuing Legal Education in
N

India, 8 International Legal Practice. 7, 8 (1983). See also, Anirban Chakraborty & Yashomati Ghosh, Promoting Continuing
Legal Education: A Step towards Implementing the Second Generation Legal Reforms for Creating Competent Lawyers in the New
Century, 2(1) Asian Journal of Legal Education. 29–45 (2015). Also see, the Continuing Judicial Education plan formulated by
National Judicial Academy, Bhopal, available at http://www.nja.nic.in/the-institution.html
51
  See Abhinav Gargi, 45% of Lawyers Fake? Checking Is On, Times of India, 23 January 2017, available at http://timesofindia.
indiatimes.com/india/45-of-lawyers-fake-checking-is-on/articleshow/56724326.cms
52
  Sheran & Harmon, supra note 3 at 1085.
53
  Id. at 1086.
54
  Id.
55
  It was through the efforts of the convention of 1974 that a resolution came and it called for communication between committee,
bars and benches on the subject of mandatory CLE. As a result, approximately 20 meetings between committee members and local
bar groups were held all across the State of Minnesota. At the July 1974 State Bar Convention, the delegates voted overwhelmingly
to approve the committee’s proposed rule instituting a mandatory CLE programme. Id. at 1087.
56
  Id. at 1086.
57
  National Judicial Academy, Bhopal conducts various CJE programmes. The idea behind grating judicial education at NJA is to
bring together judges from across the country, thereby providing them a forum to jointly identify the major obstacles facing the
administration of justice and develop appropriate solutions for overcoming these obstacles, available at http://www.nja.nic.in/the-
institution.html
162 Asian Journal of Legal Education 5(2)

largely in association with other recognized and renewed institutions and universities.58A similar sort of
voluntary programme is conducted for academia too.59 But all of these measures yet do not pass the test
of CLE programmes—as it is conducted in other parts of the world60 and are far from what is been
termed as mandatory CLE programmes.
India has a population of more than 1.3 million legal professionals by 2011 (the same number would
have multiplied dramatically by now).61 One must have to understand that these processes, like the
introduction of CLE methods, are not meant to diminish the self-confidence of a law practitioner, rather
these are intended to enhance their skills. Such enhancement of skills is formed from a long-term
perspective of the future generation, which has to play a vital part in the legal profession—not just in
India but across the world.62 It is further suggested that the programmes of CLE must include judges and
other court personnel too. An individualized legal educational programme under the auspices of some
reckoned institutional set-up has to be offered to the judges, clerks, court administrators, prosecutors and
law enforcement personnel. These may include programmes ranging from seminars on specific areas to

se
a session on judicial writing. Another important factor leading to the institution of CLE is to develop
legislative interest in the area. Perhaps, it would be advisable that a legislative interest must be formed

lu
after a careful consultation and recommendation of law commission, committees formed under the
auspices of higher judiciary, reputed academic institutions and bar.

c ia
er
CLE Methods Bring New Teaching Techniques
m

A computer-aided learning has phenomenal potential in CLE. If appropriately utilized, especially for a
developing country like India, it can broaden the dissemination of CLE to audiences who are well beyond
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reach. The rural lawyer, prevented by time, geography and financial restrictions from attending CLE
lectures held in large cities, can have access to these lectures. Computer-aided exercises for law students
in evidence, professional responsibility and trial practice have a potential of bringing commonality of
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standards in dissemination of legal education. The usage of legal search engines and research institutions
has hugely advanced the cause of research and availability of information.63 The simulation exercises
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wherein students are placed in professional roles, requiring them to respond as judge or counsel is
ot
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58
  Institutes such as Indian Law Institute and Indian Society of International Law conduct regular workshops/seminars/refresher
course concerning legal aspects on a regular basis. These programmes are largely done in collaboration with various governmental
organizations including University Grants Commission, BCI, various ministries of central government, etc. Recently, it conducted
a bridge course for foreign degree holders, information available at http://www.barcouncilofindia.org/introduction-of-bridge-
course-for-foreign-law-degree-holders/
59
  Various workshops/seminars/conferences/special lectures are quite common among various governmental and non-governmental
organizations who receive funds either from government or its agencies or from private sources.
60
  These voluntarily programmes do not mandate as such under some statute; neither do they aim at providing any credit score; are
purely voluntary and not compulsory; and the aim of such programmes is either dissemination of knowledge or finding solutions
to problems, whereas in other jurisdictions, the main aim of CLE programmes is to cure incompetency.
61
  In 2011, there were 1.3 million lawyers in India, revealed a right to information response by the BCI to Delhi-based advocate
Kush Kalra, with an average annual growth rate between 2007 and 2011 of around 4 per cent, available at http://www.legallyindia.
com/the-bench-and-the-bar/rti-reveals-number-of-lawyers-india-20130218–3448
62
  See Shuvro Prosun Sarker, Anirban Chakraborty, & Shounak Chatterjee, Visualizing Third Generation Reform of Indian Legal
Education. In Legal Education in Asia (Shuvro Prosun Sarker ed., 2014): 257–279.
63
  See Prakash Sharma, A Review of Journal of Indian Law Institute in Legal Education, 4(1) Asian Journal of Legal Education.
61–70 (2017); Jayanth K. Krishnan, From the ALI to the ILI: The Efforts to Export an American Legal Institution, 38 Vanderbilt
Journal of Transnational Law. 1255 (2005).
Sharma 163

another positive improvements taking place in our law schools.64 Computer-aided learning has several
advantages over more traditional teaching techniques. The computer can provide the student with an
instant critique of his performance, and the programme can be adapted to meet the particular needs of the
individual. In addition, the student can work with the computer at his own pace. Unfortunately, computer
technology requires significant capital investment. National law schools played an outstanding role in
extending computer-aided learning.65 However, the same is lacking in various private colleges and
universities, especially those situated in rural or remote places.66 Another concern is familiarity with
advanced technologies. Its usage requires access to specialized equipment and prowess with its operation.
Many of the legal professionals and even existing or upcoming academicians, possess little or no insight
of computer-aided learning.67 CLE methods allow experimentation and innovation, and that can be
encouraged and monitored so that its effect on the delivery of legal services can be ascertained.

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Work of CLE Board—A Proposal

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On the basis of experiences, in various countries, with CLE, it appears that the critical factor in its
success is the work of the board in supervising the operation of the programme. It may consists of certain

ia
number (but not more than 15) of well-recognized members of academia, bar and bench. It should have
a chairperson to be elected among the members. The equality among the members is the prime focus in
c
this proposal.68 Another factor which has to be incorporated in this proposal is non-interference of any
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external institutions, other than the Supreme Court. The Supreme Court shall appoint the members and
m

an executive director who serves as the administrator of the programme. The board shall have a general
supervisory authority over the operation of the rules. The executive director shall initially determine
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whether which courses submitted to the board should be accredited and, if so, for how many hours. The
board shall thereafter review course approvals and disapprovals and may have a right to overrule (by
two-thirds of voting of members present) the executive director’s decisions. The board’s decisions
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should be made in light of written standards.69

Each participant should have a writing surface. Typically, each course is accompanied by carefully
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prepared written materials that are distributed to the participants no later than at the time of registration.
The faculty must be well-qualified by education and experience to teach the subjects covered. The board
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shall form a committee and approved certain number of advanced courses.70 Sponsoring institutions shall
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64
  See Shuvro Prosun Sarker, Indian Legal Education: Quest for Third Generation Reform. In Experimental Legal Education in
Globalised World (Mutaz M. Qafisheh & Stephen A. Rosenbaum eds., 2016): 362–375; Jayanth K. Krishnan, Professor Kingsfield
Goes to Delhi: American Academics, the Ford Foundation, and the Development of Legal Education in India, 46 American
Journal of Legal History. 447 (2004).
65
  However, this phenomena of National Law Schools is not common. Few possess enough resources to cater modern demands
while the rest are short of sufficient basic funds.
66
  See C. Raj Kumar, Improving Legal Education in India, The Hindu, 27 June 2007, available at http://www.thehindu.com/todays-
paper/tp-opinion/Improving-legal-education-in-India/article14783272.ece
67
  Lovely Dasgupta, Reforming Indian Legal Education: Linking Research and Teaching, 59(3) Journal of Legal Education. 432
(2010), available at http://jle.aals.org/cgi/viewcontent.cgi?article=1271&context=home
68
  Sadly in India, even after Independence, the British concept of hierarchy remained intact. The academia world is often treated as
a second-class entity (largely due to lack of power) and accordingly any position, possessing as much power is given due weightage.
69
  Primary concerns among those standards should be: the course relate primarily to the practice of law or the lawyer’s professional
responsibility; the sponsoring agency to provide an atmosphere conducive to a sound educational experience.
70
  Most of the courses submitted to the board once approved, must carry continuous revisions. Courses which are oriented more
towards business than legal considerations or were not sufficiently keyed to legal practice must be rejected.
164 Asian Journal of Legal Education 5(2)

range from well-known organizations like the Indian Law Institute, Indian Society of International Law
and National Law Schools. The maximum hours of CLE programme shall range from 40–60 hours and
shall depend largely on the sponsoring institute to frame. The certificates so received shall last for 5 or
less years and therefore should be reapplied.71 There shall not be any maximum age limit to apply for
these courses, however, an upper limit of 65 year should be the criteria.72
We need to understand that the courses so accepted are not in-depth knowledge acquisition. The
knowledge acquisition is a concern for law schools. The CLE programmes are primarily refresher
courses in relatively narrow areas of the law, which are designed to update the participant on subjects
with which he has some familiarity; and only about 30–40 per cent of the sessions shall present
information. The approved courses shall fall into two basic categories: about 90 per cent refresher
courses designed to bring participants up to date in specific areas; and the remainder 10 per cent on
performance techniques rather than information. Lawyers who do not wish to fulfil the requirements of
CLE programme can choose restricted status. A lawyer so classified can still represent certain close

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relatives or a single employer case. The board can grant a waiver of the rules or an extension of time in
cases of hardship or in other extenuating circumstances.73

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Status of Continuing Legal Education in Other Countries
c
er
CLE in the United States
m

Programmes concerning CLE got introduced way before in 1916 and after the Second World War saw
much needed kick in its implementation across various states. Afterwards, with the efforts of ALI–ABA, a
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programme to mandate CLE courses was constituted.74 In 1975, Minnesota was the first state to start with
a mandatory CLE programme jointly with Iowa.75 Meanwhile, the Wisconsin Supreme Court also approved
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in principle a mandatory plan similar to Iowa’s, and this was later followed by North Dakota.76 The Supreme
Courts of New Mexico, Utah and Washington, DC joined afterwards for mandatory CLE.77 Other states like
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California, Idaho, Kansas and Maryland also drafted their plans before the state bar associations and soon
joined the group. Years afterwards, some states followed mandatory CLE programmes after a study was
conducted by their bar associations or committees.78 They gathered the experiences of the states, which
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already have mandatory CLE and found out its importance. The consensus effort of various state bars and
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committees dedicated to review CLE programmes saw massive acceptance.

71
  The idea is so acquaint one well learned. The process of learning must be continuous, which is why the programme is termed
CLE.
72
  In various CLE modules running across various jurisdictions, there are exceptions to this rule clause.
73
  The decision so arrived at by the board shall be final and should not be challenged. However, if one needs to challenge such a
decision, heavy cost on non-satisfaction of courts wisdom shall be the norm.
74
  Moreland, supra note 6 at 3.
75
  Sheran & Harmon, supra note 3 at 1081.
76
  At present, each state has its own rules and regulations indicating what all qualifies for CLE credit. Certain programmes, subjects
and formats may not receive credit in some states and there may be specific rules regarding who may earn credit or the maximum
number of credit hours that may be earned with specific formats. See the list of all states in the United States who have CLE credit
programmes listed in the website of American Bar Association, available at https://www.americanbar.org/cle/mandatory_cle/
mcle_states.html
77
  American Bar Association, supra note 19 at 309.
78
  These States were New York, New Jersey, Michigan besides others.
Sharma 165

CLE in Canada
In Canada, rules vary by provinces and territories. Alberta has a mandatory CPD programme, requiring
preparation of annual CPD plans. Lawyers develop their plans and declare to the Law Society of Alberta
on an annual basis that these are complete. The Legal Education Society of Alberta provides tools to
facilitate compliance with these requirements. In Ontario, the Law Society of Upper Canada, beginning
in 2010, instituted mandatory CPD hours for all lawyers in the province. In British Columbia, CPD is
mandatory and lawyers are required to annually report their CLE activities to the Law Society of British
Columbia. The CLE Society of British Columbia provides tools to facilitate compliance with these
requirements. Practicing lawyers must complete a minimum of 12 hours of coursework and 50 hours of
self-study annually.

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CLE in the Philippines

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In the Philippines, the rules on mandatory MCLE, a committee constituted by the Supreme Court of the
Philippines, for members of the legal profession in the Philippines were recommended by the Integrated

ia
Bar of the Philippines (IBP), endorsed by the Philippine Judicial Academy, and reviewed and passed
upon by the Supreme Court Committee on Legal Education in 2001.79 The members of IBP are required
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to undergo after every three years to complete at least 36 hours of CLE activities approved by an MCLE.80
er
The idea of introduction of CLE is to ensure that throughout a lawyer’s career, they must keep abreast
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with law and jurisprudence, maintain the ethics of the profession and enhance the standards of the
practice of law.
om
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fo
ot
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79
  The obligation of lawyers to undergo a programme of CLE programme is sanctioned by Canon 5 of the Code of Professional
Responsibility, available at http://research.omicsgroup.org/index.php/Continuing_legal_education_in_the_Philippines
80
  
The following members of the Bar are exempt from the MCLE requirement: The President and the Vice President of the
Philippines, and the Secretaries and Undersecretaries of Executive Departments; Senators and Members of the House of
Representatives; The Chief Justice and Associate Justices of the Supreme Court, incumbent and retired members of the
judiciary, incumbent members of the Judicial and Bar Council and incumbent court lawyers covered by the Philippine Judicial
Academy program of continuing judicial education; The Chief State Counsel, Chief State Prosecutor and Assistant Secretaries
of the Department of Justice; The Solicitor General and the Assistant Solicitors General; The Government Corporate Counsel,
Deputy and Assistant Government Corporate Counsel; The Chairmen and Members of the Constitutional Commissions;
The Ombudsman, the Overall Deputy Ombudsman, the Deputy Ombudsman and the Special Prosecutor of the Office of
the Ombudsman; Heads of government agencies exercising quasi-judicial functions; Incumbent deans, bar reviewers and
professors of law who have teaching experience for at least ten (10) years in accredited law schools; The Chancellor, Vice-
Chancellor and members of the Corps of Professors and Professorial Lecturers of the Philippine Judicial Academy; and
Governors and Mayors.
   Available at http://mcle.judiciary.gov.ph/bm850
166 Asian Journal of Legal Education 5(2)

Objections to Continuing Legal Education

Like every other programme CLE too has numerous objections.81 Interestingly, the focal point, even with
those objections is to look for professional competence. But none of those objections looks substantial.
This part of the article shall look into some of the main objections and try to substantiate it with some
justified reasoning. Idea is to form a guided and sufficiently rigorous plan. By and large, there appear two
main objections: (a) other alternatives to CLE and (b) which CLE plans among various (available) are to
be looked after.
Some of the benefits associated to CLE plans have been referred in the earlier part of the article. A
more complete analysis of the merits and disadvantages of the alternatives to CLE is beyond the scope
of this article. I would, however, like to comment briefly on some of the objections. It has been suggested,
for example, that advocates attending mandatory post-admission educational courses should be tested to
determine whether they have assimilated the course material.82 Some argue that the programmes are

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excessively lenient in permitting the lawyers to prove attendance at mandatory educational courses
merely by stating the time and place of the course attended.83 It has been suggested that some authority

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other than the lawyer himself should determine his needs and prescribe the courses necessary to answer
them.84 Having agreed to this part, it appears as such that there appears no arguments against the idea of

ia
transfusion of mandatory legal education for the advocates. If experience proves that testing, monitoring
and course prescription are needed and will serve a useful purpose, there is nothing in the concept of
c
mandatory education, which will prevent use of these additives.
er
Secondly, there are claims that mandatory programmes will dilute the healthy educational impact of
m

voluntary programmes.85 It is suggested that voluntary programmes rather than mandatory brings
advocates’ motivation into play—which is no doubt a key to learning process. The argument rests on the
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preposition that any mandatory programmes kill the motivational factor.86 This argument holds baseless,
since a mandatory programme with correct course structure instead maximizes interest. Further, the idea
that mandatory CLE somehow infringes upon a lawyers independence.87 This argument of freedom of
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choice (as it should be put in precisely) is an unconvincing objection to CLE. Let me explain why. To
become an advocate, one must graduate from an accredited law school and, pass a bar examination
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(however this is not a mandatory requirement). The All India Bar Examination (AIBE) grants certificate
ot
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81
  Some tough questions have to be faced in MCLE programme design. Possibly the most difficult is the question of how to define
successful completion of the required courses. See Paul A. Wolkin, A Better Way to Keep Lawyers Competent, 61 American Bar
Association Journal. 575–576 (1975). There are possibly a sufficient number of lawyers who by lack of desire or lack of interest
do not wish to participate in some programmes which they do not wish to join, see Douglass G. Boshkoff, Some Thoughts
Concerning Mandatory Continuing Legal Education in Indiana, 1976, available at http://www.repository.law.indiana.edu/
facpub/2464. Rather than focusing on peer review committee formation, there should have been performance review committee,
see Marilyn J. Berger, A Comparative Study of British Barristers and American Legal Practice and Education, 5 Northwestern
Journal of International Law and Business. 540 (1983–1984), available at http://scholarlycommons.law.northwestern.edu/cgi/
viewcontent.cgi?article=1152&context=njilb. Focusing much on self-regulation is another objection made to mandatory CLE, see
William T. Gallagher, Ideologies of Professionalism and the Politics of Self-regulation in the California State Bar, 22 Pepperdine
Law Review. 2 (1995), available at http://digitalcommons.pepperdine.edu/cgi/viewcontent.cgi?article=1547&context=plr
82
  See Deborah L. Rhode, The Rhetoric of Professional Reform, 45 Maryland Law Review. 274, 291 (1986), available at http://
digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=2615&context=mlr
83
  Paul A. Wolkin, supra note 81 at 576.
84
  William T. Gallagher, supra note 81.
85
  Sheran & Harmon, supra note 3 at 1087.
86
  Id.
87
  Douglass G. Boshkoff, supra note 81.
Sharma 167

of practise to those interested in continuing advocacy as a profession.88 This, however, applies only to
law graduates passed after academic year 2009–2010. A law degree awarded prior to academic year
2009–2010, will be held legal and there will be no need to appear for the AIBE in order to qualify to
practice law in India. It is a conclusive and suggestive proof as to why we need to move for programmes
like CLE. Nevertheless, once admitted, an advocate is constrained by the Rules of Professional
Responsibility as formulated by BCI or by respective state bars. This whole process presumes that an
advocate duly recognized through respective bars, shoulders certain minimal requirements of competence,
if not experience. We have heard, through various influential members of bars and benches that a sound
bar helps significantly in making a sound bench. Noteworthy it is to mention here that various Law
Commission’s reports do propose to strengthen this essential necessity.89 Further, not just a sound bar and
bench but a sound academia and institutions attached to legal education can play a crucial role in
strengthening sound legal fora.90 This rightly explains freedom of choice argument. No matter how
independent an advocate may be, one has to accept regulation when the need is pressing.

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Besides these arguments, some other objections to CLE encountered are: that it will not provide
courses for advocates who have specialized needs;91 that advocates will not be discriminating in their

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selection of courses under a CLE programme;92 that it emphasizes upon the quantity rather than the
quality of course offerings;93 that it will place greater stress on exposition rather than participation and

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therefore the educational exchange will be less effective, and many more.94 However, an obvious
conclusion formed after going through these voiced apprehensions—would be that—they are overstated.
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A logical mind would think otherwise. Further, it cannot be believed that a programme like CLE will
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have any effect on the ratio of expository to participatory courses. Competition among sponsors should
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ensure quality as well as quantity in course offerings. Which is why it is also suggested that an institution
well known for its reputation in legal research must be involved. Specialized diploma courses or even
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short-term professional courses, are in fact regularly offered across various major cities and through
various well-reputed legal institutions.95 And it seems to me that an advocate who spends his time and
money to attend legal seminars/conferences/workshops, etc. will (at least) out of self-interest alone, be
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careful in his selection and alert in his participation. Obviously, there are risks in mandating a programme
where experience is as limited as is the case with post-admission legal education. In any event, especially
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for Indian legal structure, we need to device a programme—coupled with the prospect of success—and
that to my mind, if ensured would be worth the risk of disappointment. Hopefully, such measures do see
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light of the day and BCI along with the consultation with the academic community do arrive at some
N

88
  This welcome step was in fact a step taken by BCI to further the agenda of reform in legal education in India.
89
  See Law Commission of India, Report 266th & 184th.
90
  See Law Commission of India, supra note 42—the report recommended interesting amendments to the Advocates Act, 1961,
mainly concerning professionalism. On importance of recognition to the special relationship between bar and bench in legal
profession, see Joe B. Hamiter, Forum Juridicum: The Ideal Relationship between the Bench and the Bar, 20 Louisiana Law
Review. (1960), available at http://digitalcommons.law.lsu.edu/cgi/viewcontent.cgi?article=2836&context=lalrev
91
  Rocio T. Aliaga, Framing the Debate on Mandatory Continuing Legal Education (MCLE): The District of Columbia Bar’s
Consideration of MCLE, 8 Georgetown Journal of legal Ethics. 1145, 1145 (1995).
92
  Anna Persky, Clapping for Credit: State CLE Courses Use Unusual Pairings to Stimulate Interest, American Bar Association
Journal. (2012), available at http://www.abajournal.com/magazine/article/clapping_for_credit_state_cle_courses_use_unusual_
pairings/
93
  Lisa A. Grigg, The Mandatory Continuing Legal Education (MCLE) Debate: Is It Improving Lawyer Competence or Just Busy
Work? 12 Brigham Young University Journal of Public Law. 417, 427 (1998), available at http://digitalcommons.law.byu.edu/
cgi/viewcontent.cgi?article=1226&context=jpl
94
  Deborah L. Rhode, supra note 82.
95
  Institutions who have attained wide recognition through are Indian Law Institute and Indian Society of International Law.
168 Asian Journal of Legal Education 5(2)

logical conclusion. At worst, we should be able to improve at least our existing programmes, and that too
in light of practical experiences.

Conclusion
The growth of the CLE movement demonstrates the increasing need that legal profession has to have for
a high-quality CLE. Also, with the sensitivity of the legal matters with which advocates and judges deal
requires that they have a certain amount of autonomy in arriving at their professional judgements. But
their freedom must necessarily be circumscribed, if required in the public interest. Events of professional
misconduct and continuing dip in legal education training has brought us to the importance of CLE.
These measures will respect public interest and bring goodness to the noble profession, requiring updated
professional competence. Every lawyer has a duty to remain competent for the duration of his practice.

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The importance of this obligation cannot be overemphasized, for unless one remains competent, a lawyer
cannot hope to satisfactorily perform his duties to the public, the profession, his clients and, most

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importantly, to himself. In the end, adopting a mandatory CLE, will not be an easy decision. The original
impetus for the CLE in other jurisdictions came from within the legal profession. Rightly, there appears

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an urgent requirement in India to develop a plan, which reflects our judgement that an obligatory process
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is a timely and effective means for achieving crucial objectives of bringing professional accountability
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and ethical standards. Such a measure requires urgent involvement of legal academia to bring about a
consensus of academic standards which would be of international quality and repute.
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