Picture Courtesy: India Today
The New York Times recently published an article on Republican nominee Justice Patrick J. Schiltz, the Chief Judge of the District of Minnesota. Judge Schiltz, appointed by former President George W. Bush, recently passed orders against the Immigration and Customs Enforcement (ICE) for detaining people in an arbitrary manner.
The Trump led Executive labelled the Judge an “activist” Judge. A common global trend, where populist Governments seek to delegitimize authorities not aligned with the Elected Executive.
Judge Schiltz's integrity and commitment to the rule of law is not surprising when one reads his 1998 publication in the Minnesota law Review titled “Legal ethics in decline…”. The paper reflects on the increasing greed for money and whether money alone is an accurate indicator of success.
This is relevant in Indian Litigation today when more than ever the measure of success is your income.
Test Of Money And Legal Mentorship
Making money is not the problem. Lawyer Howard Lensick put it well “its chimerical for those who have money to advise young lawyers against the same”.
However, the problem is firstly, fetishization of money and personal wealth as the only indicator of success. Especially when litigation is far from being a perfect marketplace where talent attracts money. On the contrary, the litigation market is heavily influenced by political and judicial networks. Secondly, the low salaries in litigation and the constant reminder of material wealth as the representation of success drives lawyers into unethical practice affecting the reputation of the Courts.
The above two problems stem from the values institutionalized by members of the Senior Bar. Young lawyers look up to senior lawyers for imbibing values and seek institutional validation from them. Watching the Judicial and political system consistently reward material success to lawyers with access to political and judicial power promotes lobbying as a virtue over the ability to work on one's craft.
Govt Law Panels are home to those proximate to the Judiciary and Bureaucracy. Recently, names in one such list were challenged in the Delhi High Court. While Private companies regularly engage kin of legal families and/ or an assortment of lawyers with political connections. The average litigant assumes this to be the best form of representation.
The Bar has institutionalized such allocation of cases in the Higher Judiciary. This leaves the young lawyer alienated, cynical and driven towards political and legal networking for quick money. They see no reason for training themselves as independent legal minds. Creating slowly a bar of operators not lawyers.
Value Of Unpopular Causes And The Independence Of The Bar
Increasingly defending an unpopular political position is seen as “Activist” and “problematic” by members of the Bar. This is not because of the merit of the cause but rather the audacity of questioning the prevailing majoritarian worldview. It is important to remember that Constitutional Courts are envisioned to be anti-majoritarian. It is good to see members of the younger Bar fighting for those without resources and popular support. From rights of refugees, environmental causes, slum rehabilitation to UAPA cases. Sadly, Institutional recognition for such work is nonexistent, while higher paying cases are promoted and romanticized.
As of today, no value ought to be attached to a case in terms of how lucrative the brief is in Court. That can be done when a fair market exists for the young bar. The mark of a good young lawyer today ought to be his legal aptitude along with values such as integrity and bravery. Money in the long term is incidental to the popularity of a lawyer. Something a lawyer benefits from as he or she builds their reputation at the Bar.
Today sadly money is not necessarily a consequence of the ability of the lawyer but more to do with access to power. Facing financial hardship and a lack of opportunity many talented people leave litigation. It's something the Bar should introspect upon.
Today Law is one of the most popular career paths for students in India. The Bar needs to promote a more plural and inclusive space for diverse social and political ideas. To institutionally create opportunities for those without access to privilege and power. We need to ensure good people sustain themselves in our Justice System. This will help in developing a stronger and more autonomous judicial system.
The author is an Advocate Practising at Delhi High Court. Views are personal.