Abstract
Introduction
In earlier days, parties to a suit used to assign and entrust the work in all respects to their respective lawyers. The clients did not have active participation in their cases. Hence, client-centered lawyering was introduced to provide lawyers the mechanism to impel client involvement as it requires cooperating with clients to entirely survey their legal, social and/or health issues to ascertain the best tactics given the clients’ context. Accordingly, client centered lawyering is directed to establish a bilateral active space that expedite developing mutual trust and respect between the client and the lawyer.
In India, the contemporary judicial system prerequisites not only that results are attained but they shall be attained promptly. It is a widely known fact that Indian judiciary is becoming inadequate to acknowledge pending cases. Indian Courts are jammed with prolonged unsolved cases. To deal with such circumstances, Alternative Dispute Resolution (ADR) can be a constructive system as it settles a dispute in a peaceful conduct where the end result is endorsed by both the conflicting parties. It is a procedure which authorises individuals and groups to perpetuate collaboration, social order and dispenses opportunity to lower antagonism.
With numerous people surviving beneath the poverty line, the economic situation of India makes laying out structured legal services challenging. When a considerable section of the population faces conflict to acquire even necessities of survival, it is irrational to seek legal expenses from them. It is also unjust for lawyers to solicit legal expenses that are not pro rata to their clients’ economic condition. As a result, pro bono[1] legal services have been established for providing legal assistance to those individuals who are unable to hire an attorney. Hence, it can be said that ADR and client-centered lawyering are correlated with pro bono services.
Pro Bono
Pro Bono is a Latin phrase that means pro bono publico, which interprets, “for the public good.” The phrase ordinarily make reference to professional services rendered for free or lowered expense. The phrase pro bono is predominantly used in legal services. The right to free of charge legal aid is constructed in accordance with Article 39A of the Indian Constitution. The Constitution (42nd Amendment) Act[2], 1976, states that the State is compelled to check that the legal system bestows equal justice to all its citizens. In other words, the State must provide free legal aid to individuals who are not able to access justice on account of financial constraints.
The Supreme Court held that, according to Article 21 of the Constitution of India, the right to a rapid trial is a fundamental right.[3] Additionally, under Article 22(1) of the Constitution, an accused has a right to be represented by a legal representative of his preference. The Supreme Court of India held that non-fulfilment of providing free legal aid to an accused at the expense of the State, unless the accused himself repudiates for the same, would endanger the whole trial.[4]
According to Section 304 of the Code of Criminal Procedure, 1973, the State is obliged to provide legal assistance to an accused of an offence that shall be tried in the Court of Sessions. In accordance with Order 33 of the Code of Civil Procedure, 1908, a person may be discharged from the liability of court charges if they don’t have the adequate means to solicit justice.
The Legal Services Authority Act[5], 1987, states the subject matter of legal aid available for the economically weaker section, backward section and people with disability. The Act aims to educate people on legal system, provides free legal aids and assembles Lok Adalats. Under this Act, the establishment of Lok Adalats attributed to the emergence of new conception of the country’s legal system.
Benefits of Pro Bono Services
Here are few grounds on why law firms and individual legal attorneys should consecrate more time and effort to extend its pro bono services :
- Cultivating Various Experience : Pro bono services ordinarily enables the lawyers to practice in fields of law that are not their prime area. Attorneys get opportunities to work and brush up on areas of law than that of their own.
- Conducive Environment for Collaboration : Pro bono cases endow the lawyers with opportunity to work with other lawyers from different practice of area in their legal firms, resulting in forming networks with other attorneys and fostering collaboration.
- Connecting to Clients : People obtaining legal aids ordinarily are not in the most immaculate situation, and an attorney offering their service for free, would forge an extensive connection to the existing clients.
Current State of Pro Bono in India
While pro bono services are stimulated under Indian Law, it is filled with difficulties. To start with, India’s increasing requirement for commercial lawyers suppresses pro bono sector development. Moreover, India’s vast diversity, it’s impartial laws and jurisprudence regarding legal services for the needy, it’s enormous population surviving in poverty, it’s current and historic stature as a secular, democratic, republic, and its current economic growth, as well as the expectancy the growth has elevated, all amalgamated to generate a distinctive and challenging environment, in which the pro bono sector is developing.
There are numerous public complaints about the formal legal system, including judicial efficiency, corruption and insufficiency of public faith in the judiciary, all of which guides to informal dispute settlement. Pendency has been one of the most significant issues appearing and confronting the Indian legal system. According to estimatees, almost 30 million cases were pending as of April, 2015 in Indian courts. Moreover, there are more than 345 openings for judges’ pending appointment and confirmation at the High Court level, which aggravates the situation. Activists, Attorneys and even Supreme Court judges have focused their concern on this issue, which is crucial to understand not only how legal services are provided and monitored in India, but also the possibilities and challenges that the legal practitioners interested in laying out pro bono services in India’s face.
Over the previous three decades, institutional, legislative and jurisprudential reconstruction have provided the groundwork for the needy to obtain free legal services. However, only a few organisations competently lay out these services in practice, depending upon India’s distinctive PIL procedure for legal aids.
At present, foreign-qualified lawyers are barred from representing pro bono clients under indigenous Indian Law. However, foreign-qualified lawyers can earnestly contribute to pro bono legal services by providing writing and research skills in individual matters, as well as indirectly, by partnering with Indian organisations to construct volume. The need for pro bono legal services in India significantly exceeds the supply, and thus, regulated, organised efforts by the attorneys would go on a prolonged way towards ensuring legal assistance to the underprivileged and provide justice to all as laid down by the Constitution of India.
Alternative Dispute Resolution (ADR)
The conception of Alternative Dispute Resolution (ADR) system has the potential of providing a replacement to the standard mechanisms of resolving disputes. ADR proposes to settle all type of matters, namely – civil, family, industrial and commercial, where people are unable to proceed any kind of negotiation and reach the resolution. Usually ADR uses neutral third party who assists the conflicting parties to liaise, discuss the differences and settle the dispute.
Settlement of disputes through ADR has constructed innately in Indian culture. Indians have used non-adversarial procedure settling or resolving their disputes since Vedic period. Narada and Yajnavalkya stressed that Kula, Sreni and Puga tribunals were settling the conflicts in ancient India. Kula was a tribunal which had settled the disputes between the members of family, community, caste or races and tribes. Sreni was a tribunal which consisted of trade experts and it aided the traders to settle their trade related conflict internally. Puga was a tribunal which consisted of people belonging to a similar locality but various communities. These tribunals are regarded as Panchayats, and they followed an easy method for their decision making.
To deal with the unresolved cases in courts of India, ADR plays a vital role in India by its various mechanisms. ADR system lays out scientifically expanded mechanisms to Indian judiciary which aids in lowering the stress on the courts. Alternative Dispute Resolution provides diverse ways of settlements, which includes arbitration, conciliation, mediation, negotiation and Lok Adalat.
On 4th December, 1993, the then-Prime Minister of India and then-Chief Justice of India assembled a conference in New Delhi at the Chief Ministers and Chief Justices of the States endorsed this Resolution. Section 89 of the Code of Civil Procedure, 1908, states that if there appears evidence of inclination by the parties for an out of court resolution, then the court must construct the terms of feasible settlement. Arbitration and Conciliation Act, 1996, and The Legal Services Authority Act, 1987, deals with ADR.
Alternative Dispute Resolution is a motion evolved to generate an effectual and impartial alternative for the standard judicial system. Arbitration, mediation, conciliation, mediation-arbitration, final offer arbitration, private judging, mini-trial, court-annexed ADR and summary jury trial are only few of the ADR methods available.[6] The method of ADR helps parties solve their disputes more rapidly with low budget. As an result, the Arbitration and Conciliation Act, 1996, was passed. This Act officially acknowledges conciliation as a authorised method for settling disputes.
Various Modes of Alternative Dispute Resolution
As already mentioned, ADR has various processes that direct to provide speedy aid. Therefore, the various modes of ADR are as follows –
- Arbitration – The procedure of arbitration cannot occur without valid arbitration agreement preceding to the arrival of dispute. In this mechanism of resolution parties broach their conflict to one or more persons called arbitrators. Decision of the arbitrators are limited to parties and their decision is called Award. The main object of Arbitration is to acquire just settlement of conflict outside of court without necessary obstruct and expense. Section 8 of Arbitration and Conciliation Act, 1996, states that if any party disregard the arbitral agreement and instead of shifting to arbitration, shifts that suit to civil court, and the other party can seek the court for addressing the matter to arbitration tribunal by means of the agreement but not later the yielding of the first statement. There must be a certified copy of arbitration agreement in the application, and if it satisfies the court, the matter would be referred to arbitration.
- Mediation – Mediation is a substitute dispute settlement where a third neutral party directs to assist to two or more disputants in attaining agreement. It is a simple and accessible party focused in negotiation procedure where third party works as a mediator to settle conflict amiably by the usage of convenient communication and negotiation mechanisms. This procedure is completely managed by the parties. Mediator’s work is to ease the parties to attain resolution of their disputes. A mediator does not foist his views or opinions and does not make any decisions about what a fair and just resolution of dispute should be.
- Conciliation – Conciliation is a type of arbitration but its nature is less formal than that of arbitration. It is a mode of facilitating a cordial settlement, by which the parties to the dispute operate a conciliator who meets with the parties separately to resolve their conflicts. Conciliator meet separately to reduce the stress between the parties, developing communication, clarifying issues to produce a negotiated resolution. Prior agreement are not needed and cannot be compelled to party who is not looking for conciliation. In such a way, conciliation is different from arbitration. Conciliation agreement should be an extemporary agreement which is entered into only after a dispute has occurred and not before. Parties are also allowed to participate in conciliation procedure even while the arbitral proceedings are going on.[7]
- Lok Adalat – Lok Adalat is also known as ‘People’s Court’, conducted by a sitting or a retired judicial officer, social activist or members of legal profession as the chairman. Lok Adalat is conducted by NaAtional Legal Service Authority (NALSA) along with other Legal Services Institutions daily intervals for implementing such jurisdiction. Any case which is peing in regular court or any conflict which has not been introduced before any court of law can be referred to Lok Adalat. Court fees and firm process are not needed, which makes the procedure speedy in nature. Here, parties get the opportunity to interact directly with the judge unlike the regular courts of law. The decision rests on the parties whether both the parties agree on transferring a pending case to Lok Adalat. The persons determining the cases have the function of statutory conciliators only, they can only convince the parties to reach a conclusion for resolving the conflict outside the regular court in the Lok Adalat. In case of a non-compoundable offence, Lok Adalats do have any jurisdiction to deal with such cases.
ADR may provide additional forums for the Poor
One of the purposes in encouraging ADR is to raise individuals’ access to various forums that can settle disputes and, in all possibility, raise the total amount of means allocated to dispute settlement. In fact, the addition of ADR has imposed notable amount of additional means into the field of dispute settlement, means even the most liberal federal or state legislature either could not or would not supply. Hence, ADR lacks the capability of raising access to justice for the weaker section by laying out additional forums for the settlement of conflicts, specifically when considerably raised means enabling lawyers to represent the weaker section in standard litigation do not seem feasible.
ADR options for the poor are as follows –
- Publicly Funded Dispute Resolution Centers – It has been recommended that as courts are publicly financed and ADR techniques are ‘alternatives’ to court, ADR should be publicly funded correspondingly. The Joint Subcommittee, however, concluded that the ADR programs which are publicly funded are not viable in the current economic and political climate.
- Trained Volunteer Mediators – Trained volunteer mediators can be used to resolve disputes. Although complete reliance on the volunteers to lay out access to ADR has its restrictions, specifically as the requirement surpasses the supply of volunteers. Therefore, it may not be the most effective in conjunction with other alternatives or options.
- Subsidisation by those using the Court System – Another option is to reckon is to possess those who utilise the courts through lawsuit to subsidise the expense to providing conflict settlement services to those who desire to evade litigation.
Client Centered Lawyering
A client centered strategy to lawyering evaluates and aspires actual input from clients and its aim is to completely notify them in a recognisable way. To begin with, it includes permitting clients a free of cost narrative, vigorously listening to conflicts and concerns, and later interrogating and evoking. Client-centered lawyering demands cooperating with clients to completely scrutinise their legal, health and/or social issues cooperatively so as to settle the best approach to given their clients’ context. Cooperatively the attorneys along with their clients explore a scale of legal and non-legal settlements by performing together with other professionals, as suitable to the clients’ situation and the professional’s proficiency.
Client-centered attorneys acknowledge the matters relating to poverty and poor health are elements in settlement of their clients’ current legal issues as well as the avoidance of any future legal issues. It eases the revelation of precise timelines and information of the case. At the present time of alternative legal services proposed through Artificial Intelligence, rapid response and speedy action from the attorneys are expected by the clients. The primary principles of the client centered lawyering can be obtained by taking into consideration the clients’ significance in decision making and providing value perspective, views and emotions related to their respective cases.
Some of the significant aims of the active involvement of the clients in legal issues are as follows:
- Addressing non-legal issues – The non-legal matters included in a case involves social, religious, psychological, economic and moral circumstances that take hold of the client owing to a legal proceeding. It is essential to bear in mind that the attorneys can give out the best interest of clients. If these non-legal matters are not paid attention to, it might aggravate the issues on clients than they were before the legal proceedings commenced.
- Good relationship with the client – The client-centered motion develops the understanding of the clients’ experiences and affairs, viewpoint and emotional state, which in result enables in pointing out additional contents in constructing the case. This comprehensive mechanism puts the client in the centre of policymaking. It also establishes more probability of favourable outcomes and attracts prospective references for the firm. It builds a professional bond between the lawyer and the client as well.
- Preference to client’s decision making ability – Legal client administration software lowers the role of attorneys’ in insignificant issues and builds opportunities for increased client involvement. This aids the clients be involved in a vital role in making pensive decisions of their case and putting forward solutions. Even though attorneys unquestionably own fair understanding of the law and lawful consequences, clients are in the rightful place to be aware of how their lives would be influenced by legal results.
- Prevents uncertainty and confusion – Legal client administration provides eminence to client communication. Unmediated communication with the clients put a stop to confusion while handling legal issues. It assists in enabling transfer of information between the client and the lawyer in a precise and clear manner without any obscurity. Furthermore, attorneys can lay out satisfactorily segmented advice by being compassionate. They can also extract precise information and timelines by means of adequately organised questions with the assistance of direct communication.
- Handling hostile clients – Lawyers usually manage incoherent clients angry, edgy, impatient and emotionally driven. Client centered approach to lawyers takes exceptional care of such clients and their concerns, and imposes significance on keeping the clients well informed about their matters. In response, it aids the attorneys in lowering violent circumstances by providing the clients the feeling of being acknowledged by the lawyers. Attorneys may also describe the issues to their clients and help them in making appropriate decisions.
Technological Revolution to Level-Up Client-Centered Firms
At the present time of globalisation, the usage of technology is unavoidable. Labouring workflows are quite time-consuming and error-prone. Hence, hiring self-operating workflows improves the standard of work, regulation and lowers error. Legal client management with help of technology fascinates clients and makes the firm more commercially successful by holding on to the overhead costs low. Moreover, legal technology eases the attorney to administer the abundance of work in an arranged manner. Automation eliminates repeated and time-intensive tasks, which enables law firms’ productiveness and cash flow notably. Eventually, technology aids in structuring a long-lasting and respectful relationship between the lawyer and the client. The following are some of the ways in which progressive law firms can employ technology to make it more suitable for clients:
- Live Chat Specialist – Live chat consultants may be hired for people who visit the firm’s website. They can participate in fruitful conversations through an online platform. Delivering immediate communication can be obtained through a live chat specialist. On account of the usage of Artificial Intelligence, live chats can be automated to a certain extent as well.
- Client Portal – In a legal Customer Relationship Management (CMR) connects the gap between the lawyer and his client by enhancing trust and transparency, guiding to a smoother and more efficient undetermined work ambience. Attorneys can build events and tasks, and convey them to the clients and convey reminders to receive legal documents. The client portal sustains privacy and helps in conveying secured messages, and keeps them well-informed about the legal issues.
- Virtual Receptionist Services – Responsiveness is an essential aspect of a law firm that provides eminence to its clients, but an attorney may not constantly be in a role to respond to clients. Thus, it is crucial to have a virtual receptionist who is accessible all day to stress the concerns of the clients. Virtual Receptionists can receive messages, transfer calls, schedule appointments, and even answer necessary questions from clients, and assist them in developing client satisfaction.
- Online Payments – Supplying clients with flexible payment alternatives online is another way of making certain client satisfaction. It shall be noted that the procedure of online payment is uncomplicated, and it lowers the legwork of traveling to the offices of lawyers. Clients may pay electronically when required by the attorney for filing the cases, registering documents court fees, stamp duties, etc. There are also certain characteristics such as time tracking, to have a trail of time spent on each case to trail levied hours.
[1] Indira Jaising v. Supreme Court of India, (2017) 9 SCC 766
[2] Part IV, Directive Principles of State Policy.
[3] Hussainara Khatoon & Ors v Home Secretary, State of Bihar, 1979 AIR 1360, 1979 SCR (3) 169.
[4] State of Maharashtra v. Manubhai Pragaji Vashi & Ors, 1996 AIR, 1 1995 SCC (5).
[5] Came into force on 9th November, 1995.
[6] The methodology has been used in countries like China, Japan, Canada, France, United Kingdom, United States, Australia, South Africa and Singapore.
[7] Section 30 of the Arbitration and Conciliation Act, 1996.