Role of the Professional in the 21st Century

The ultimate test of the role of a professional is the
standing and the respect he commands and the value which people put on the way
he handles matters and not the number of matters he handles. In England,
previously they had amateurs and professionals playing the game of cricket and
the annual match at Lords used to be called ‘Gentlemen v. Players’, the
amateurs being the gentlemen. The captain of the English team would invariably
be a cricketer who qualified as an amateur (gentleman). (Len Hutton, later Sir
Leonard Hutton, was the first exception just about the time that the Society
started functioning.) This is no longer so. The annual match is discontinued.
One wonders whether this is because the gentleman has gone out of the game! In
my view a professional attains his ultimate role if he qualifies as a gentleman
professional and not just a successful or prominent professional.

In one way of looking at it, the qualities which a
professional must possess to discharge his role with distinction have remained
the same over time. After all, the Ten Commandments do not change from time to
time. They are enduring and of universal application. Nevertheless times are
changing — the 20 : 20 culture has replaced the flavour of a test match in
popular thinking. So also the general concept of a professional has undergone a
change. Advertising by a professional was, and is taboo in India. However, it is
rampant in the United States of America where one may find at a department store
handouts which one can pick up about the achievements of a lawyer and I presume
also of an accountant. At some international airports one finds posters or
hoardings with a photograph of the leading professional in a professional firm
who has achieved success and prominence in his field. Even in the UK today,
barristers are permitted to bring to the notice of the public their speciality
of practice but not a reference to cases won by them. The rule against
advertising in India is so strict that Rule 36 of the Code of Conduct framed by
the Bar Council of India specifically provides that the stationery of a lawyer
should not indicate that he is or has been a President or a member of the Bar
Council or any association or that he has been associated with any person or
organisation or any particular cause or matter or that he specialises in any
type of work or that he has been a judge or an advocate-general. Strictly
speaking therefore, the letterhead cannot state ‘formerly a judge of . . .’ The
Chartered Accountant is subject to equally stringent condition against
advertising. The classic view is that the client must seek out the professional
and not that the latter fishes for clients.

The other malaise is the publicity which professionals seek
by constantly voicing their views in the press in response to mobile requests.
The views are often based on newspaper reports or TV announcements without
having actually seen in black and white what they comment upon. This is, of
course, less reprehensible than the case of the politician who recommends
banning of a publication which he admits in a blase manner that he has not
read !

A prevalent practice today is for a professional to make
presentations to would be clients to show his particular expertise and sometimes
with a view to the client retaining him or his firm at the expense of the
professional currently working for him. This to me appears unsavoury. Of course,
the other point of view is that the client is a customer and it is proper that
he be made aware of the alternatives available just as a businessman advertises
the superior quality of his products.

It is urged in defence that a new entrant in the profession cannot get known unless he is permitted some degree of advertisement. Insofar as the presentations are concerned, the truth is that it is not the new and junior member who indulges in them, but the well-established and seasoned professional even though he does not have to fish for clients! Insofar as the junior and new entrant is concerned, there are several avenues open to him to get himself known. He can write articles in the professional as well as in the lay press, he can accept speaking engagements and he may even take up an assignment as a lecturer, all of which will give his image an exposure. This is particularly applicable to professionals practising in the ( fields of accountancy, law, management, etc. Indeed, the Society is a great place for a new entrant to have his voice heard. The Society as well as several other professional bodies encourage new and budding professionals by offering them speaking and writing engagements. In life there is always a right and a wrong way of doing things.

It is also to be borne in mind that a professional is not in the business of selling goods. Sethi J. observed in Saxena v. Sharma, 2000 7 SCC 264,  “The professional obligations of a lawyer are to be distinguished from the business commitments followed by the trading community.” Vivian Bose J. in the case of Mr. G, a Senior Advocate of the Su-preme Court, AIR 1954 SC 557, pithily observed that the restraints which a lawyer is subjected to are a part of the price he pays for the privilege of belonging to a close and exclusive club, their integrity, dignity and honour shall be above the breath of scandal. There is a very important, firm and distinct line between a business and a profession, a line which unfortunately gets blurred as time passes. Some observations of the Supreme Court – would appear to make this line vanish. In Barendra Prasad Ray v. ITO, 129 ITR 295, the Supreme _ Court equated a business connection as also covering a professional connection. To the same effect is the observation of Rowlatt J. in Christopher Barkar & Sons v. IRe, (1919) 2 KB 222 wherein he observed that “All professions are businesses, but all businesses are not professions.” The observations have to be read in context and bearing in mind the issue involved. For example, in the Supreme Court case the issue was whether an Indian solicitor had a business connection with the barrister engaged by him. It would indeed be a sad day if no distinction is visible between a businessman and a professional. What distinguishes a profession from a business is that a profession has a code of conduct to which its members are subject and breach whereof would result in a disciplinary action. However, no written code of conduct could possibly cover all contingencies. Ultimately, the question to be asked is whether the conduct in question is that of a true gentleman. Often adherence to the unwritten code of conduct is more important because the written code is there for all to see. As very pithily observed in an old film ‘Seven Brides for Seven Brothers’, one has to honour an unwritten contract because the written contract can always be enforced.

Bose J. stated in AIR 1954 SC 557 that a professional “is expected at all times to comport himself in a manner befitting his status as ‘an officer and a gentleman.’ In the Army it is a military offence to do otherwise … though no notice would be taken of ungentlemanly conduct under the ordinary law of the land and none in the case of a civilian. So here, he (the advocate) is bound to conduct himself in a manner befitting the high and honourable profession to whose privileges he has been admitted; and if he departs from the high standards which that profession has set for itself and demands of him in professional matters, he is liable to disciplinary action.” It is for this reason that S. 21(3) of the Chartered Accountants Act, 1949 imposes a punishment not only for professional but also for ‘other’ misconduct.

In business, the driving force is money. That ought not to be the case in a profession.  In the Preamble to the Standards  of Professional  Conduct  and Etiquette formulated  by the Bar Council of India and reported in the journal  section  of 68 Bom.  L.R. 72 it is stated “An advocate shall, at all times, comport himself in a manner befitting his status as an officer of the Court, a privileged member of the communitp, and a gentleman, bearing in mind that what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate. Without prejudice to the generality of the foregoing obligation, an advocate shall fearlessly uphold the interests of his client, and in his conduct conform to the rules hereinafter mentioned both in letter and in spirit. The rules hereinafter mentioned contain canons of conduct and etiquette adopted as general guides, yet the specific mention thereof shall not be con-strued as a denial of the existence of others equally imperative though not specifically mentioned.”
 
What applies to a lawyer equally applies to any other professional. The introduction to the publication on code of conduct issued by the Institute of Chartered Accountants of India sets out that the overriding motto has to be pride of service in preference to personal gain.

An illustration which may bring out the difference that there should be in the approach of a professional and of a businessman is provided by what should be their respective reactions to the fact that a particular act or transaction which has scope to yield monetary gain may be visited with a penalty if held to be impermissible. The businessman may ask what is the extent of the penalty and if factoring in the quantum thereof would still make the transaction acceptable from the business point of view, then he may take the penalty in his stride. On the other hand, the professional would (should 7) say that a penalty would imply a breach of the law and an act which imposes a penalty must be avoided even though financially viable. My views may, of course, be regarded by the new and not so new entrants to the profession as archaic, but then I have been brought up in a culture where it was considered improper for Counsel to carry visiting cards and certainly not proper to distribute them to all and sundry at professional meetings. Today, this is regarded as essential ‘networking.’ Indeed, in some large and well-known firms abroad and perhaps in India also, the senior-most partner essentially confines his activities to client nursing and client development rather than client attendance. The worth of a partner is judged by the money he pulls in and not the quality of his work.

By saying that in the 21st century money is the measure of success, I do not mean that a profes-sional must not charge what he feels is his proper remuneration for the time spent by him and the effort put in by him over a period of years in attaining excellence. After all, he devotes his time and there is no mechanism by which the time ordained to him in this world can be extended. At the same time if a matter deserves his attention, he should not refuse the assignment because the client is not in a position to pay his fee or that he only accepts work from corporate clients.

Most unfortunately,  it is not wholly unknown that the professional may tell a client or accept the sug-gestion of a client to raise his fees or perhaps even gross up the fees for the component thereof which is to be used to bribe on behalf of the client. The client assumes the role of an ‘innocent abroad’ as his accounts only show the payment of a profes-sional fee. I may be pardoned for saying that it is like a businessman who retains an assassin to get rid of a competitor and does not pull the trigger himself. Of course, this ‘refinement’ does not have to be practised where the client or the professional has access to the other type of money !

It is also unfortunate that sometimes in India one reads in magazines interviews with professionals where they flaunt the success achieved by them in handling certain cases, even revealing the names of the clients. Confidentiality of the client’s affairs is equally important in the 21st or even in the 25th century as in the earlier times.

Today, the aspect of a contingent fee has assumed importance. The rules governing the American Bar clearly permit the charge of a contingent fee i.e., a fee based on success. In India, this is not per-mitted both to the chartered accountant and the lawyer. One must, of course, recognise that the charge of a contingent fee does serve a purpose as it enables an indigent person to avail of professional services without himself being out of pocket. The main reason for discouraging the levy of a contingent fee is that it gives to the professional a personal interest in the litigation which may lead to his not being fair to the Court, Tribunal or Authority before whom he appears or to his adversary. This breeds the class of ambulance lawyers – who chase an ambulance to offer their services to the injured in an accident or to the heirs of the deceased! As in all things in life, one has to balance two competing viewpoints. Old-fashioned as I am, I would vote for ‘no contingent fee,’ which is also the view clearly expounded by the Supreme Court of India in AIR 1954 SC 557 referred to above.

Over the last 15 years, a sea change has taken place in the quantum of the professional fee charged. This is in line with the globalisation of the Indian economy because foreign professionals charge a fee infinitely more than do their Indian counterparts. It is not as if the calibre of the foreign professional is any superior to that of the Indian. One result of this is that the problem of ‘kick back’ has unfortunately increased. The kickback could be to the employee of a corporation or an employee in a professional firm or even to a partner in a professional firm. This is undoubtedly unethical. It is however, not just a recent development as even in the old days it was not unknown that budding I counsels shared their fee with the managing clerk in an attorney’s office, who had the disposing power over a brief. An interesting issue is posed by Clause (2) of Part I in the First Schedule to the Chartered Accountants Act, 1949 which enumer-ates as a misconduct the payment directly or indirectly of any share or commission in the fees or profits of a chartered accountant to any person other than a member of the Institute. Obviously, the permissive payment is to a member of the Institute who does professional work for the chartered accountant. I do not know whether as worded it would permit payment of a simple kick-back to a member of the Institute! I am sure, it would not as it would come within the all-embracing principle of conduct not becoming a professional (Chartered Accountant). I may only add that though the fees charged have multiplied, the professional must not overlook that there are several cases where free counsel and work is necessary.

In order to fulfil his role of being a good professional, the person must maintain his total independence. If the professional is on the Board of Directors of a company, he should not perform professional services for the company as one does not know when there may be a conflict of interest in his role as a professional and his role as a director of the company who has to look after the interest of the shareholders. In the USA, strict rules of the Sarbanes Oxley Legislation are meticulously applied. Insofar as the legal profession is concerned, Rule 8 of the Code of Conduct prescribed by the Bar Council of India provides that a lawyer who is a director shall not appear for the company of which he is a director. Unfortunately, these rules are sometimes flouted even by the highest. Sometimes they are skirted by putting forward a dummy professional as being in charge!

There is a misconception in the mind of the lay public that a professional ought not to accept an assignment on behalf of a person who in public perception is perceived to be guilty of the charge levied against him. This is totally wrong. The function of a professional is to put forward without mis-representation of facts the case of his client. The professional is supposed to be better suited by training to articulate his client’s view. He should not bend to the public diktat not to appear for a particular person. The person may have a perfectly good defence though at first blush it may seem improbable. The only exception where he may decline to appear is where there is some conscientious objection to his canvassing a particular point of view and not because he feels the client is guilty of the misdemeanour he is charged with, unless, of course, the client has confessed to the profes-sional his wrongdoing. In our system it is for the judge to adjudicate.

One must also distinguish between a professional person’s argument in a matter and his opinion.
The opinion has to be what he feels is the correct position on facts and in law. His arguments  have to be what  is most  advantageous   to his client without factual misrepresentation.  He cannot be a judge and decline to urge a point which he feels may not be acceptable.  On the  other  hand,  his opinion  has to be what it is stated to be, namely, his view of the correct position in law on the given facts. The ultimate tribute is when, say, an officer says that  the  assessee  should  obtain  an opinion from XYZ as his opinion  will really be what  he believes to be true.

A very important professional development in the r 20th century insofar as India is concerned is the advent of foreign professional firms. As per present regulations, neither in the field of chartered accountancy nor of law can a foreign professional, who does not have the necessary Indian qualification or a foreign qualification recognised by the concerned apex body, practise in the field of chartered accountancy or law. The view is that to practise a profession does not merely mean ap-pearance in the Court or before an authority, but also performing any function which the said pro-fessional can perform. The writer feels that the right of a foreign professional to practise should be completely on a reciprocal basis. If the Indian professional can practise in that foreign country, then the professional of that country should be allowed to practise in India under the same terms and conditions. With the opening up of the economy, this is an issue which has assumed considerable importance. Here again one sometimes regrettably sees a surrogate practice being carried on. A fallout of increasing globalisation is that if a foreign company has an Indian associate, the audit of the associate company sooner or later gets transferred to the associate concern of the foreign company’s auditor. The homebred auditor is replaced not because he is less efficient or wanting in professional attainment, but because he does not have the necessary ‘connection.’ This is an unfortunate development per se. The defence, of course, is that this practice encourages uniformity of audit approach.

There is only one further aspect of the matter which requires to be considered. What are the special skills which the 21st century dictates for the professional? The first one which comes to mind is that one must train one’s memory to remember the relevant case law and facts. When one is arguing a matter before an authority and a question is put, it is in that split second that the professional must be able to provide the answer. This is particularly so when arguing before the Tribunal or a Court. Such response is possible if he has trained his memory to recall at pleasure the relevant case law on the subject. It is the 21st century computer mania which is a strong deterrent to the cultivation of a memory. Why should I strain myself when the information is available on the click of a button? A similar situation is reflected in the inability of the present generation to total mentally three sets of figures. The calculator is a great crutch. The other attribute which is required to be developed is the ability to put the argument in a succinct form. Gone are the days when judges had time at their disposal to hear lengthy arguments. One has to hit the target in the shortest possible time. Above all, one has to develop intuition and a sense of the moment. With the increasing workload one must know what to look for and what to ignore. As an auditor, a Chartered Accountant should learn by instinct to determine which aspects of a client’s accounts require particular scrutiny. Again a speedy reaction to a question is often called for. A client rings up with a question and expects a prompt response. One should be careful not to commit oneself if one is not sure of the position as later the response given by him may be held against the professional if it turns out to be inaccurate. Particular care has, therefore, to be taken in furnishing opinions, specially in writing, as years later what has been opined may be referred to and commented upon adversely. This is the reason why furnishing a written opinion is so much more difficult than arguing a matter. It is also more time-consuming than preparing for an appeal. Above all in the present era of tension and fast living, the professional must develop a sense of detachment and humour. He should not get carried away by ful-some praise showered on him. He must remember that it is only as long as he delivers that the client will hanker after him.

It is a wise man who said that if you want to find out how important you are, take a bucket and fill it with water, put your hand in it up to your elbow, pull it out and the ‘hole’ that remains is the measure of how you will be missed. You may splash all you please when you enter, but stop and you will find in a minute that it looks just the same as before!

I have, in this article, confined myself to the professions of accountancy and law as these are matters of prime interest to readers of this magazine. However, there is the profession of medicine which perhaps affects all of us intimately in our personal life. (Classically the three learned professions are the professions of divinity, law and medicine.) The doctor is the last resort when it is a matter of life and death. It appears to me to be unfortunate that today in the medical field there is over-specialisation. For every limb in the human body there is a specialist and sometimes he looks at the matter only from his point of view and not from a holistic point of view. Very soon we may have a specialist for the thumb or the little finger! Today pathological and mechanical tests have overtaken the innate diagnostic skill which the physician of old possessed. Of course, this is an offshoot of mal-practice litigation fears – fears to some extent fuelled by members of the legal profession. The great role of the doctor is that he administers to human beings and not to corporates as do high-flying members of the other two professions and this is also reflected in their respective professional fees !

In the ultimate analysis in determining whether a professional has fulfilled his role, one has to determine what he has contributed to the profession. His individual brilliance is undoubtedly to be complimented, but what is to be admired is how he passes on the knowledge which he acquired to another and trains him to enrich the profession. Unlike in the case of a businessman, a professional himself trains his article clerks, or juniors, as the case may be, to be independent and there is nothing so satisfying for the true professional as to see those whom he has trained shine in the profession and preferably even outshine him! The profession gives us much and the only way one can repay the debt is by putting others in the field. To be labelled a successful professional is not necessarily a compliment, but to be called a true professional is !