P. R. Ramesh*
The Oxford Dictionary of English defines a profession as ‘a paid occupation, especially one that involves prolonged training and a formal qualification’. It traces the origin of the word from Latin words ‘professio(n)’ and `profitieri’ which mean ‘declare publicly’. Thus, the word profession is derived from the notion of an ‘occupation’ that one ‘professes’ to be skilled in.
Emergence of Professions and Professionals
Some professions have a long history and have been around for centuries, such as medicine and accountancy. In today’s day and age, the need for professional services in the commercial world has arisen with the emergence of joint stock companies wherein the ownership of the enterprise is separate from its management. This bifurcation or dichotomy has created the need for independent, qualified and competent service providers who can provide the assurance sought by the owners of the enterprise and other stakeholders. With the ownership of enterprises moving away from family ownership to a wider public holding, either directly or through mutual funds or similar other entities, and new models of businesses and enterprises emerging, the requirement of independent, expert professionals has significantly increased.
As businesses grow and diversify, the legislative landscape alters itself to meet the new market requirements and a number of new laws are framed for this purpose. The regulatory bodies are one of the integral components of the legislative landscape that regulate professions and professionals. These professionals play the role of regulator’s ‘eyes and ears’ into the workings of the market and thus shoulder immense responsibility and are accountable not only to the immediate user of their services but also to a wider stakeholder group, including regulators and the society as a whole.
Owing to the heterogenous nature of professions and professionals and their functions different capacities, it is important to understand their basic attributes, roles and prerequisites before proceeding to discuss their accountability in the commercial eco-system.
ATTRIBUTES OF PROFESSIONS AND PROFESSIONALS
The quality of any profession and its membership is influenced by the criteria for qualification and continuance as a professional. Only ‘fit and proper’ persons should be admitted as members of any profession. A profession is only as good as its members.
Attributes of a ‘fit and proper’ person varies depending on the profession, the environment in which the profession operates, the skill sets required, the conduct expected and, above all, the values a professional must possess. A professional’s character and reputation stands on a higher pedestal and is the most important attribute. While reputation is built over time, it can be destroyed overnight by a single slip in the discharge of professional duties, inappropriate conduct or fraudulent acts. A professional’s reputation once dented, not only impairs his ability to render professional services but tarnishes the image of the entire profession. A professional should not only be a paragon of honesty like Yudhisthira from the Mahabharata, but also should be seen to be honest.
Every profession, therefore, should have tight entry criteria which allow only ‘fit and proper’ persons to become its members. It should also have procedures in place to regularly screen its membership to determine whether the members continue to meet the ‘fit and proper’ criteria.
A professional is required to be technically proficient and updated in his technical knowledge. This requires continuous learning and every profession should have a Continuous Professional Education (CPE) system which requires mandatory compliance by its members. Theoretical technical knowledge apart, the requirements for a person to be admitted as a member of a profession should include a minimum period of practical experience. This would ensure that a professional possesses both knowledge and skill required for discharge of his duties.
The number of assignments a professional takes up should be within his capacity so as to enable him to effectively deliver his services. The quality of his services delivered would be affected if he accepts too many assignments that are beyond his capacity to complete . Every profession should institute capacity building measures to ensure that the profession is equipped to meet the expectation of its users. Whilst building capacity, measures must also be taken to ensure proliferation of healthy competition within a profession to provide wider choices to its users. Competition stimulates and sustains quality as users of professional services will have the opportunity to seek the best service provider rather be compromised in accepting from a limited choice.
In what is popularly referred to as the Fourth Industrial Revolution, we are currently witnessing rapid and significant developments in technology. With the confluence of the physical, digital and biological worlds, a dramatic transformation in the business and professional landscape is anticipated. We are likely to witness the ‘demise’ of several professional services and professions and at the same time witness the birth of new professions. This effect of the Fourth Industrial Revolution is inescapable and it is imperative that all professions review the trends and prepare themselves for the imminent disruption.
Technology will be the single largest disruptor. The developments in the speed of processing, storage, connectivity and sensors have been exponential. Besides these there have been very significant developments in the internet of things, big data, data analytics, artificial Intelligence, nano technology, etc., which will continue to disrupt professions. A professional should be technologically ‘literate’ and avoid being ‘technology myopic’. He should not underestimate the capacity of technology to disrupt his profession.
A professional is also expected to employ ‘state-of-the-art’ tools in delivering his services. He is accountable for discharging his services effectively and efficiently. This would include the use of the latest and best knowledge management systems to keep himself abreast of the current developments, analytical tools to handle and interpret large volumes of data, tools and devices that facilitate real-time access to him by his users, etc.
In summary, every professional should be endowed with the requisite ‘Mindset, Skillset and Toolset’. He should possess a high-quality service mindset with attributes of empathy and understanding of his users’ needs, contemporary skills required by his profession and a repertoire of tools to efficiently and effectively deliver his services.
The need for professional services often arises due to the requirements of statutes. As a result, certain professions arise exclusively to fulfil the requirements of a particular statute. Such professions exist because of the statute and sometimes inadvertently create entry barriers, preventing other professions from entering their space. Thus, they retain exclusivity not only in being the only profession allowed to provide such services but also the profession which provides a service required by a specific statute. Such professions however run the risk of their demise in the event of a withdrawal of the requirements of the statute. While there is an argument that an exclusive profession is appropriate for development of bespoke technical skills, it does limit user choice and could result in quality erosion.
Increasingly we are witnessing bundling of services and blurring of lines between the roles of different professions. With the developments in technology, it is almost impossible to deliver any service without the involvement of a technology specialist. Similarly, most assignments will involve advisory or representation services or interpretations of laws which may conflict with the services of the legal profession. It is now time for multi-disciplinary partnerships to be encouraged so that users are benefitted from the whole suite of services on a comprehensive basis.
With the blurring of lines between the roles and services provided by different professions, it is also imperative that professions jettison exclusivity and enter into partnerships or alliances to avoid extinction or conflicts. This would logically result in the demise of self-regulation and may require the setting up of an independent regulatory body to enforce discipline and deal with service quality issues.
ACCOUNTABILITY OF PROFESSIONALS
Ever since the advent of the Insolvency and Bankruptcy Code, 2016 (Code) and associated regulations , there are several new categories of professionals that have arisen, and several old categories that have had to reinvent themselves to meet the demands of the Code and its impact on the business ecosystem in India. The professionals created and reinvented pursuant to the Code include insolvency professionals (IPs) acting as interim resolution professionals, resolution professionals (RPs) and liquidators, valuers required for fair and liquidation valuation, legal counsels specialising in insolvency resolution related matters, forensic auditors assisting IPs in determining avoidable transactions as specified in the Code, firms assisting IPs in discharge of their duties, and also Merger & Acquisition firms advising and assisting the committee of creditors (CoC) and resolution applicants in traversing the resolution process.
Given the large number of cases where application for insolvency has been filed and admitted thereafter, there has been a huge growth in the demand for such professionals in the last three years. Considering this exponential growth in demand for professionals, the Insolvency and Bankruptcy Board of India (IBBI) has also launched the Graduate Insolvency Programme, a programme that would create a cadre of IPs to support the insolvency resolution ecosystem.
It is interesting to note that all of the professionals described above, are a part of the insolvency resolution ecosystem, and are working towards the stated objective of the Code i.e. the resolution of a defaulting corporate debtor (CD) in a time bound manner for maximisation of value of its assets. These professionals are appointed in various capacities by different parties to serve the overall objective of the Code.
Firstly and primarily, the RP is the master of ceremonies of the entire resolution process and is perceived to wield a great amount of power and influence over the entire process. He is a court appointed officer under the Code and the Code entrusts several powers, rights and duties upon him. As defined under the Code, the RP is responsible for managing the affairs of the CD and running the insolvency process in a fair and transparent manner. As the custodian of the CD, the RP is responsible and accountable to each and every stakeholder involved in or impacted by the resolution process, viz. the employees, financial creditors (FCs) and operational creditors (0Cs), homeowners, statutory authorities having a claim and/or regulatory oversight over the CD, resolution applicants, etc.
At the same time, the fee of the RP for managing the resolution or liquidation process is approved by financial creditors who are the members of the CoC, and it is the CoC that has to approve each of the key steps in the resolution process. As a result, an RP must maintain a balance between his responsibility towards the CoC and towards each of the other stakeholders.
With great power comes great responsibility and greater accountability. The RP must visibly demonstrate his impartiality and lack of bias by (i) being transparent in all his interactions and decisions, (ii) by being collaborative and consultative with all participants of the CoC and (iii) ensuring that all decisions are arrived at by active consensus and are not bulldozed by a dominant participant or by the RP himself. All actions of the office of the RP must speak for themselves as being honest, without fear and favour and keeping the best interests of all concerned.
Every professional has two primary responsibilities. The first pertains to their client and the second to the ecosystem that has entrusted the profession with a certain degree of responsibility and provides the professionals an opportunity to practise and earn a livelihood. Every profession has a written and/or unwritten code of conduct that specifies certain expectations from all its professionals. The underlying theme of any such code of conduct is that the professional should exhibit such behaviour and adhere to such standards that are expected of him. For any professional involved in the insolvency resolution ecosystem, the expectation thus laid down by their profession itself, would include upholding the objectives of the Code and working towards the larger good of the insolvency resolution ecosystem.
Moreover, every individual that earns his bread from this ecosystem, should feel personally responsible for cultivating and improving the ecosystem further to keep the ball rolling. Any professional rendering a service should consider himself as an ambassador of the ecosystem as a whole, and perform his duties towards his respective clients, being mindful of his larger responsibility towards the ecosystem. At no point should his individual interests or the interests of his clients, or any stakeholder involved be placed above the letter and spirit of the standards and laws governing his profession. Each professional is responsible and accountable to each stakeholder who maybe affected or impacted by his actions.
Another important aspect for a professional, which deserves a separate discussion, is the issue relating to ‘conflict of interest’. Every professional must, to the best of his abilities, avoid any and all conflicts of interest. Even the barest hint of conflict may taint his reputation as a professional and, by extension, that of his profession. A professional must not only be independent, impartial and free of any conflict, he must also demonstrably appear to be so. This was aptly captured in the Order of the Disciplinary Committee of IBBI, dated April 17, 2019, in the matter of Mr. Sanjay Kumar Ruia, IP where the Committee opined that:
‘When relationship triumphs over merits in professional matters, there is no place for independence, integrity and impartiality. A professional must be not only be impartial, but also appear to be impartial.߿߿. Any conduct, whether explicitly prohibited in the law or not, is unfair if it impinges on independence, integrity and impartiality of an IP or inconsistent with the reputation of the profession.’
Every professional must be held accountable to the highest standards of independence with respect to the matter at hand. It is the professional’s responsibility and duty to not only actively and consciously meet such standards, but to also ensure that no aspersion can be cast on him or his profession.
Finally, the most important attribute of a professional for which he is accountable is integrity in character and conduct. This is non-negotiable. He should judge whether his actions satisfy his own conscience before considering whether it meets the expectations of others and the society at large. His conduct should be the same whether his actions are being observed or not.
To conclude, the actions of a professional has an impact on multiple aspects including his own profession, various stakeholders and the ecosystem as a whole. He is accountable to the ecosystem and its various constituent stakeholders. The working of a professional must go hand-in-hand with integrity. This is essential for building and preserving the reputation of the whole cadre of professionals.
The final test for an individual is to be his own judge and be governed by the principles of ethics and accountability.
*(Mr. P. R. Ramesh is a former Chairman of Deloitte India.)