Bar Council Research Articles

Teaching and learning rural governance in law schools: an account of an experiment with clinical legal education

ABSTRACT Clinical legal education (CLE) strives to develop competent and socially relevant legal professionals who can render legal services to the masses. Clinics are largely known to focus on the needs of individual clients as opposed to imparting community legal education. However, a growing body of literature suggests that clinics must focus more on social justice lawyering. This article aims at contributing to this emerging body of work. The Rural Governance, Justice, and Citizen Participation clinic elective course (course) has been taught at the O.P. Jindal Global University by the lead author of this article since 2010. The co-author of this article was a student in the inaugural batch of the course. The course aims at familiarising students with the growing “disconnect” between the promise and reality of law. The authors recommend that the guarantee of “equal access to justice” can be achieved as follows: (i) law schools must offer clinical courses focused on rural communities; (ii) the Bar Council of India must introduce clinical courses that focus on the legal needs of rural communities; and (iii) law schools must adopt a “good practices” framework for teaching community-centric clinical courses to empower rural communities.

Consent of a lawyer's client to the processing of his personal data as part of the exercise of the right to a lawyer's request

This article discusses theoretical and practical issues regarding the possibility of a lawyer obtaining information with limited access, in particular, information that contains the personal data of his client. The position is argued, according to which although the right to request a lawyer is a professional right of a lawyer, at the same time, taking into account the peculiarity of the information requested by him, which contains personal data of another person (confidential information), it is necessary to take into account the requirements of special legislation on the protection of personal data, primarily regarding stating the legal grounds (purpose) and the "convincing” need to obtain them.
 Within the framework of this study, attention is paid to the problematic issues of determining the essence of the lawyer's client's consent to the processing of his personal data through the lens of the lawyer's right to request. It is concluded that the possibility of obtaining information directly related to the lawyer's client and containing his personal data is conditioned by his giving the lawyer the appropriate consent to this.
 The requirements of the law and the position of the self-governing bodies of lawyers regarding the necessity (feasibility) of the lawyer obtaining consent to the processing of his personal data from the client are investigated. Attention is drawn to the fact that based on the absence of clear requirements in the legislation on the protection of personal data regarding the form of the above­mentioned consent, the position of the Bar Council of Ukraine is correct, according to which it should be set out in a separate clause of the contract on the provision of legal assistance, which can also be concluded in electronic form , and further provision of this contract (excerpt from it) is sufficient for obtaining confidential information about the lawyer's client.
 To achieve the goal, the author used research methods that are characteristic primarily of legal science. This research was conducted using, in particular, systemic-structural and dialectical methods of learning legal reality, which provided an opportunity to analyze the essence of the lawyer's right to receive information containing his client's personal data and the need to obtain the latter's consent to their processing.

Certain Issues of the Legal Nature of Decisions of the Council of Advocates of Ukraine and their Entry into Force

The article examines certain issues of the legal nature of acts of the bar self-government bodies, namely, whether the decision of the Bar Council of Ukraine has the features of a normative act (1), whether the publication of the decision of the Bar Council of Ukraine on the official website of the Ukrainian National Bar Association constitutes bringing it to the attention of the public in accordance with the procedure established by law (2), and whether the decision of the Bar Council of Ukraine on the organizational support of the Unified Register of Advocates of Ukraine determines the constitutional rights and obligations of citizens.
 The author analyzes the concepts of "normative act”, "regulatory legal act” and "individual legal act". The author concludes that the Bar Council of Ukraine may adopt both normative (regulatory legal acts) and individual legal acts. The legal nature of a particular act of the Bar Council of Ukraine is determined by its content. The author establishes that the decision of the Bar Council of Ukraine on the organizational support of the Unified Register of Advocates of Ukraine has the features of a normative act.
 The article examines the procedure for promulgation of regulatory legal acts in Ukraine. The Constitution of Ukraine defines the obligation to publish only legal acts that define the rights and obligations of citizens. This is required to ensure that citizens are aware of their rights and obligations. It is determined that Ukrainian legislation determines the procedure for bringing to the attention of the public only certain legal acts. It is concluded that publication of a decision of the Bar Council of Ukraine on the official website of the Ukrainian National Bar Association is its communication to the public in accordance with the procedure established by law.
 The author also makes a comparative analysis of the rights and obligations of Ukrainian citizens as defined by the Constitution of Ukraine and the rights and obligations of citizens as defined by the decision of the Bar Council of Ukraine on the Register of Advocates. The author concludes that the decision of the Bar Council of Ukraine on the Unified Register of Advocates does not define the constitutional rights and obligations of citizens.

Mapping Personality Traits and Gender-Based Stereotypes on Perceived Negotiation Skills

Implementing effective dispute resolution strategies such as negotiation has proved to be quite effective whenever there is a divergence of interest between two conflicting groups. This study aims to see if gender-based stereotypes or specific personality traits can positively or negatively influence negotiation skills in an attempt to improve the negotiation process, whereby individuals could be trained to adopt specific behaviors to obtain more favorable negotiation results. Using the expectancy violation theory (EVT) to analyze how individuals respond to unanticipated violations of social norms and expectations whilst negotiating, a quantitative study was carried out among legal officers working in private, public, and parastatal organizations in Mauritius. The sample size, 270, was calculated based on a population size of 899 as per records of the Mauritius Bar Council. The results demonstrate most legal officers were equipped with good negotiation skills, with no significant difference between males and females (U = 1138.50, p > 0.05), while a high level of neuroticism was indicative of poor negotiation skills (τb = −0.167, p > 0.05). These findings demonstrate that participants agreed that their negotiation skills were influenced in gender-dominated meetings which align with the principles of the EVT, the violation of certain expected negotiation behavior based on gender impact negotiation outcomes. Since negotiation skills were significantly associated with negotiation outcomes (χ2(4) = 37.963, p < 0.05), this provides pointers to businesses on how to improve and optimize negotiation outcomes by choosing a negotiator with the most apt personality traits.

Features of the functioning of the committee on issues of integration of the advocacy system of Ukraine in the EU at the national association of lawyers of Ukraine

The article is devoted to the peculiarities of the functioning of the committee on the integration of the Ukrainian legal system in the EU at the national association of lawyers of Ukraine. It is noted that at the National Association of Lawyers of Ukraine, appropriate Committees are created for the purpose of effective regulation of the activities of the Institute of Advocacy. Each of the formed Committees has its own status, tasks, principles and functions of activity, organizational structure and regulates certain legal relations in the field of advocacy. Committees of the National Bar Association of Ukraine have the status of permanent advisory bodies formed under the National Bar Association of Ukraine by order of the Chairman of this organization, the Bar Council of Ukraine, or by decision of the Bar Council of Ukraine.
 It is noted that the purpose of the creation of the Committee by the National Association of Lawyers of Ukraine is to define the implementation of European legal standards for the law enforcement activities of Ukraine, European integration and interaction with European institutions on the development of the legal profession, the establishment of the principle of the rule of law and the provision of human rights in Ukraine, the promotion of Ukrainian lawyers in professional development and promotion qualifications in Ukraine and abroad.
 It was concluded that, unfortunately, the normative acts of the Bar Council of Ukraine do not regulate the functions of the Committee on Integration of the Bar System of Ukraine in the EU under the National Bar Association of Ukraine. However, in our opinion, its main functions can be: 1) analysis and study of European legal standards related to advocacy; 2) development of recommendations and proposals for adaptation and implementation of these standards in Ukraine; 3) providing training and informing lawyers about European standards and norms; 4) interaction with authorities and other interested parties to support the integration of the Ukrainian legal profession into the European legal space; 5) promotion and protection of the rights and interests of lawyers in the context of European standards, etc.
 That is why further adaptation to European standards is important to ensure compliance of the Ukrainian legal profession with international requirements and improve the quality of legal services. This organization helps in solving issues related to the harmonization of the regulatory and legal environment and providing lawyers with the necessary knowledge and skills. Its activities contribute to the improvement of cooperation between lawyers and European colleagues, and also strengthen the status of lawyers in Ukraine in the international arena.

Rola samorządu radców prawnych w procesie tworzenia i stosowania prawa

This article explores the collaboration of the National Bar of Attorneys-at-Law in shaping and implementing the law, as seen from the perspective of the Centre for Research, Studies and Legislation of the National Bar Council of Attorneys-at-Law. The article begins by indicating that collaboration in shaping and implementing the law is a statutory task, as well as the right, of the National Bar of Attorneys-at-Law, and also identifies a set of areas of particular interest to the National Bar of Attorneys-at-Law in terms of its activities in law-making processes. The article further discusses the responsibilities of the Centre for Research, Studies and Legislation of the National Bar Council of Attorneys-at-Law and addresses the challenges that the Centre has encountered while participating in the legislative process across the following five aspects: (i) identifying draft legal acts requiring opinions; (ii) analysing the content of draft legal acts and monitoring the legislative process; (iii) adhering to deadlines for submitting opinions to public consultations and addressing the issues related to avoiding public consultations; (iv) summarising public consultations and addressing the comments submitted during consultations; and (v) fostering discussion on the draft legal acts being reviewed. In conclusion, the article emphasises the great potential of diligently conducted public consultations and transparent legislative processes.

Missing the Wood for the Trees: How Indian Legal Education Fails to Deliver the Professional Lawyer?

In this work, we compare the Indian and American legal education systems, to argue that the former lacks the toolkit to impart professionalism among its graduates. ‘Professionalism’ in American literature means the internalization of legal skills along with values of public service. The formation of these cognitive attributes through law school and formative years is known as ‘professional identity formation’. We refer to the American discourse of professionalism and argue that Indian legal education should switch to the American Bar Association output-based model, thereby creating a clear goal but flexible pathways, allowing for faculty-led innovation in courses, curricula and pedagogy. We also underline other aspects of Indian legal education like faculty shortages and barriers between academia and profession as causative factors preventing the growth of professionalism in law graduates, which may eventually disadvantage them in the global workplace. We call for reform and discourse of the basic attitudes of the Bar Council of India and the legal educators.

<p>Development of Legal Education in India and the Role of the Bar Council of India and Universities to Further It</p>

<p>Development of Legal Education in India and the Role of the Bar Council of India and Universities to Further It</p>

Glosa do wyroku Naczelnego Sądu Administracyjnego z dnia 8 grudnia 2022 r., II GSK 1225/19 (krytyczna)

Gloss to the judgment of the Polish Supreme Administrative Court of December 8, 2022, case file no. II GSK 1225/19 (critical) This gloss concerns the judgment of the Polish Supreme Administrative Court sustaining the verdict of the Voivod-ship Administrative Court [Polish: Wojewódzki Sąd Administracyjny, WSA] in Warsaw on the decision regarding registration on the list of attorneys-at-law. The court dismissed two cassation appeals filed by the Board of the National Bar Council of Attorneys-at-Law and the Minister of Justice against the judgment of the Voivodship Ad-ministrative Court in Warsaw of May 29, 2019, case file no. VI SA/Wa 2395/18 in a case involving a complaint by J. N. against the decision of the Minister of Justice of October 16, 2018. no. DZP-III-6110-485/18/3 on refusal of entry to the list of attorneys-at-law.

Implementing NRRP policies and the interest groups perspective in the justice sector: the “Ufficio per il processo” reform

ABSTRACT In the justice sector, the main objective of NRRP policies is to enhance the performance of the judiciary through comprehensive actions that impact various areas, including the courts, organizational matters, civil and criminal proceedings, alternative dispute resolution, digitization, judicial and staff training, and judicial governance. This context presents an excellent opportunity for a new cycle of policy design and implementation. The article focuses specifically on the Ufficio per il processo (literally, ‘Office for the trial’), an organizational reform that introduces new staff to support court proceedings. This reform is expected to have a broad and cross-cutting impact for at least two reasons. Firstly, it is instrumental in implementing the entire package of NRRP policies, where the efficiency of court proceedings depends significantly on the resources available to judges and clerks. Secondly, it highlights the interconnections between the judicial function and court management. The article analyses the influence exerted by key interest groups (such as the National Association of Magistrates and the National Bar Council) during the implementation phase of the reform, considering the transition from the Draghi to the Meloni Government. In the conclusions, the article identifies the dynamics that concretely shaped the Ufficio per il processo reform through the interaction between political powers and interest groups.

Teaching Criminallaw With Latest Developments: A Case For Inclusion of Corporate Crimes and Corporate Manslaughter

Teaching criminal law in a law school is a unique experience toa teacher must have the required skills to teach the subject in a most unique manner. Teaching and learning criminal law gives a very fascinating experience by involving the students actively in a classroom environment. However, today in a law school set up most of the teachers are equipped to teach the subject based on the syllabus prepared or prescribed by the university authorities and Bar Council of India’s model syllabus. In this context, it is an important question whether the prescribed syllabus gives a space and opportunity for the law teacher to teach in an innovative manner while keeping abreast with the challenges and development, which are posed bysociety. It is perceived that teachers do not have space and opportunity to include the on going developments and challenges to teach the subject in a more contemporary manner. This may involve various factors, which may include a lack of opportunity for the teachers to prepare the syllabusby themselves while engages toteach the students. Lack of expertise on the subject and not having an opportunity to teach the same subject continuously. Some of these are only indicative, and many other reasons are available in the Indian legal education system. The current essay is an attempt to study some of the pertinent issues and suggest teachers of criminal law to be more innovative and adoptive to the changes, which are taking in society.

Lusterless Legal Education and its Challenges: A Case of Pakistan

This commentary is based on first-hand knowledge of staying in Pakistan. I am very grateful for the opportunity to teach in the Fall semester of 2022 at the newly launched law department of the National University of Sciences & Technology (NUST). Had I stayed in the United States, gaining an objective perspective and deeper understanding of Pakistani legal education and the legal system would have been impossible. Lately, there has been a massive push by the Pakistan Supreme Court, Pakistan Bar Council, and Higher Education Commission to bring changes to legal education. Fundamentally, there is a renewed sense of awakening and urgency that current legal education in practice does not meeting the needs of modern times. Therefore, significant changes need to be brought about on the challenging legal front.

Lusterless Legal Education and its Challenges: A Case of Pakistan

This commentary is based on first-hand knowledge of staying in Pakistan. I am very grateful for the opportunity to teach in the Fall semester of 2022 at the newly launched law department of the National University of Sciences & Technology (NUST). Had I stayed in the United States, gaining an objective perspective and deeper understanding of Pakistani legal education and the legal system would have been impossible. Lately, there has been a massive push by the Pakistan Supreme Court, Pakistan Bar Council, and Higher Education Commission to bring changes to legal education. Fundamentally, there is a renewed sense of awakening and urgency that current legal education in practice does not meeting the needs of modern times. Therefore, significant changes need to be brought about on the challenging legal front

Kodeks Etyki Prawników Europejskich (CCBE) w polskim systemie prawa

The Code of Conduct for European Lawyers, adopted by the Council of Bars and Law Societies of Europe (CCBE), purports to be adopted as enforceable rules in relation to the cross-border activities of the lawyers. The object of this article is to examine whether the Code is a binding act for attorneys at law and attorneys. The professional self-governments have recognised the Code as a binding act for their members, but the analysis leads to the conclusion that there is no basis for this in Polish law. Furthermore, the Code is not an internal act within the meaning of Article 93 of the Polish Constitution. This means that neither attorneys at law nor attorneys can be held disciplinarily liable for breaches of the Code. In order to ensure the effectiveness of the provisions of the Code, they should be included in the professional codes of ethics of these professional self-governments.

Failure of the defendant to appear at the court as a ground for postponement of criminal proceedings: Problem aspects in practice

The non-arrival of the defense attorney during the trial is one of the main grounds for postponement of the trial in criminal proceedings. The analysis of judicial practice made it possible to conclude that the absence of a defense attorney at a court hearing, if participation is mandatory, is also a fairly common reason for annulment of decisions and sentences of the court of first instance with the appointment of a new trial in connection with the violation of the requirements of the criminal procedural law. At the same time, it is known that the non-appearance of a party to a criminal proceeding does not prevent the proceedings only if the person was properly notified of the date, time and place of the trial and did not provide valid reasons for his non-appearance. In view of this, the question of classifying the reasons for the defense attorney's non-appearance as legitimate remains a difficult one. Criminal procedural legislation leaves the resolution of the specified issue entirely to the discretion of the court. The exception is Art. 138 of the Criminal Procedure Code of Ukraine, which establishes a list of valid reasons for a person's non-arrival at a summons, but this list is not exhaustive. In addition, the Bar Council of Ukraine adopted a decision regarding the validity of the reasons for the absence of lawyers to participate in court hearings during the consideration of cases, investigative actions and other jurisdictional procedures under martial law. Therefore, it is important for an in-depth study of the non-appearance of a defense attorney at a court session to conduct an analysis of court practice in Ukraine.

The Influence of Covid-19 on the Activities of Law Firms

The subject of this study is the analysis of the functioning of law firms during the Covid-19 pandemic. The lockdown introduced by the legislator resulted in the closure or limitation of the functioning of public administration bodies, including courts and related institutions, especially law firms (advocates or legal advisers). As a consequence, law firms significantly limited their activities and, moreover, were forced to equip their offices with ICT tools allowing for remote work and IT training for their employees. As a consequence, law firms experienced a drop in income, which was confirmed by the results of a survey conducted by the Supreme Bar Council. However, positive aspects of the changes caused by the pandemic should also be noted, including introducing flexible forms of work, greater use of ICT tools.

Prawo osób zatrzymanych do obrony formalnej w polskim procesie karnym. Ocena rozwiązań proponowanych w petycji Naczelnej Rady Adwokackiej w sprawie podjęcia inicjatywy ustawodawczej dotyczącej zmiany art. 245 Kodeksu postępowania karnego

The aim of the article is showing the legitimacy of the Supreme Bar Council’s legislative initiative to amend Article 245 of the Code of Criminal Procedure, aimed at improving the legal situation of detainees and to assess of the solutions suggested by the NRA, as well. The article analyzes the current state of the law from a legal standpoint of the compatibility of the current regulations with the standards arising from European law – which made it possible to identify areas of incompatibility and to examine whether thanks to the solutions suggested by the NRA, these legal discrepancies can be removed or at least – reduced.

National Education Policy 2020 and Challenges to the Bar Council of India

Every field of higher education, including the arts, social sciences, physical sciences, technology, and law, as well as every form of education, whether general, professional, or technical, has something to ‘take’ from the National Education Policy (NEP) 2020. This is the first time in the history of the National Education Policy that legal education is referenced within the context of higher education. All stand-alone universities, such as National Law Universities, must be turned into multidisciplinary universities under Policy 2020. By 2030, all institutions that provide professional or general education will strive to organically evolve into institutions that provide both fluidly and integrated manner. The Policy called for the complete abolition of the affiliation system and the conversion of affiliated institutions into either constituent colleges of the university under the direct management and control of the university or autonomous multidisciplinary degree conferring colleges, or for a few affiliated colleges to be bundled together through mergers and acquisitions and then converted into either autonomous institutions or universities, and affiliated colleges in phase manner will be converted into autonomous colleges. Under the NEP 2020, there will be a single regulatory structure for all forms of education, with the exception of medical and legal education. However, the Policy did not establish or mention a distinct regulator for law and medicine. Whereas the National Medical Commission (NMC), the successor to the Medical Council of India, was established to regulate medical education, the Bar Council of India (BCI) was established by the Advocates Act solely to establish a professional body for practising advocates (Bar Council of India and States). If the BCI is to function as a regulatory body for legal education, it must walk a mile in order to implement the NEP 2020 for all stages of legal education, undergraduate, postgraduate, and research studies, as well as for all types of education, academic, professional, and clinical skill learning. Assuming that the deadline specified in the NEP 2020 is final and that a new shape of education is required under the NEP, BCI will need to emphasize what needs to be done and then how such changes in all levels can be accomplished within the timeframe!

TRANSFORMATION OF BAR IN WARTIME IN UKRAINE: ON THE WAY TO SUSTAINABLE DEVELOPMENT OF JUSTICE (ON THE EXAMPLE OF THE ODESA REGION)

Russia's war against Ukraine, launched on 24 February 2022, had determined new conditions for the existence of Ukrainian society, the state, and all fields of activity. The Bar was no exception. As an institution of civil society that protects human rights and interests, the Bar is an integral element of fair justice, the right which is inviolable even in wartime. However, the war made its corrections and created new rules, determining the specificity of the attorneys` activity, their behaviour, and the activity of the attorneys` self-governing bodies in wartime. The article presents the analysis of the peculiarities of functioning of the Bar of Ukraine in wartime on the example of the Odesa region. Its choice is due to the history and ancient traditions of Odesa Bar, whose representatives have already experienced periods of military aggression, and the available information about the results of its activity in wartime in the modern period. In wartime, it is impossible to obtain and systematize such data regarding the whole territory of Ukraine because part of the state is under occupation, and active hostilities are taking place on the other part. The author's analysis was based on the decisions of the Odesa Regional Bar Council, the results of the activity of the Odesa Regional Qualification and Disciplinary Commission of the Bar, the results of their interaction with the Odesa Regional Military Administration, Odesa City Council, volunteer formations, volunteer organizations and foreign colleagues. The authors used a chronological method, synthesis and a method of information analysis. Actual statistical and empirical data are used for proper argumentation of the conclusions. A conclusion was made about the internal consolidation, as well as the external ability of the Bar to act together with civil society institutions and public authorities in countering the armed aggression against Ukraine. This article was prepared as part of the scientific project ‘Justice in the Context of Sustainable Development’ Project No. 22BF042-01 (2022-2024).

Regulating Solicitor’s Clients’ Money: A Stitch in Time Saves Nine

In West Malaysia, solicitors are regulated under the Legal Profession Act 1976 (LPA). Pertaining to holding clients' money to perform the clients' instructions, the LPA empowers the Bar Council to enact rules under Section 78. Pursuant to the said power, Solicitors Account Rules 1990 (SAR) is enacted to regulate the the management and maintenance of clients' money hold by solicitors. However, SAR only provides a minimum rule on maintaining clients' money with no fund security and primarily based on trust and confidence in the solicitor's profession. Due to this fact, mismanagement and misappropriation of client's monies are expected, which some resulted in the solicitors charged for criminal breach of trust of clients' money under the Penal Code (Act 574). Nevertheless, no criminal action against a legal firm that misappropriated the client's money as a legal firm is not a legal entity under criminal law. This paper examines the legal firm's compliance in managing the client's money under the SAR. The paper employs a doctrinal method and applies a content analysis approach. The research concludes that there is in dire need of the monitoring compliance mechanism for the protection of clients’ money as adopted by other jurisdictions. This paper proposes an amendment to SAR, which incorporates the due diligence process to maintain the client's money and penalty provisions to ensure that solicitors compensate for any misappropriation of clients’ money.