The legal profession is one of the ancient professions, not only in the country but in the world also. Since very long standing time, it has been observed as a noblest profession. Government and administration can’t run properly without adequate laws and without the contribution of the legal profession. In 1961 existing Advocates Act enacted for the purpose of amending and consolidating the law relating to legal practitioners. This act also makes provision for establishment of State Bar Council and Bar Council of India. “One of the important function of Bar Council of India is to frame rules to practice the profession of law by advocates. In exercise of it’s power the Bar Council of India has also framed rules called Bar Council of India Rules in exercise of its powers under Section 49 of the Act. In Chapter III of Part VI of the Rules dealing with the ‘Conditions for right to practice’, are found rules frame under Section 49(1)(ah) of the Act which deals with the conditions subject to which an advocate shall have the- right to practice, and the circumstances under which a person shall be deemed to practice as an advocate in a court[1].” In the present article I will analyze the new rule of Bar Council of India vide notification dared 10th March, 2023 namely the Bar Council of India Rules for registration and regulation of foreign lawyers or foreign law firms to practice the profession of law in India.
Chapter IV of the Rules lays down nature and extent of law practice by a foreign lawyer and foreign law firm. Rule 8 of Bar Council of India Rules provides the nature and extent to which a foreign lawyer is authorized to practice law in India[2]. The Bar Council of India recently made the Rules for the Regulation of Foreign Lawyers and Foreign Law Firms in India, which allows them to practice the profession of law in India.
However, it does not allow them to appear before courts, tribunals or other statutory or regulatory bodies. The BCI has been opposed to allowing foreign law firms and foreign lawyers to practice in India for more than a decade. But now, the BCI has reasoned that this move will address concerns over FDI flow in the country and will make India a hub for international commercial arbitration. This rule will bring legal clarity for practicing legal profession with regard to foreign law firms and foreign lawyers.
As per section 29 of Advocates Act, 1961[3] “ there shall be only one class of persons entitled to practice the profession of law, namely, advocates”. Under the Advocates Act, 1961, only advocates registered with the Bar Council are permitted to practice law in India. All others may appear only with the permission of the court, authority or person before whom the proceedings are pending.
New rule framed by Bar Council of India permits foreign advocates and law firms to register with the Bar Council of India only if they are permitted to practice law in their home countries. However, they cannot practice with regard to litigious matter in the field of Indian law. They will be permitted to work Non – Litigious matters such as joint ventures, mergers and acquisitions, intellectual property matters, contract drafting and other related matters on a reciprocal basis. They shall not be permitted to do any work related to property transfer, title investigation or any other kind of similar work. Same restriction shall also applicable to Indian lawyers working with foreign engaged only in “non-contentious practices”.
Advantages of this new rule-
The question of whether foreign lawyers should be allowed to practice law in India is a contentious issue having strong arguments on both sides. Being allowed to practice law in India to foreign advocates can bring a number of benefits such as:
Increased Competition: Allowing foreign lawyers to practice law in India will lead to increase competition among advocates, which will further lead to better quality of legal services and it will also lower costs for clients. Definitely foreign lawyers would bring some new perspectives, best practices of international law and experience that would benefit Indian clients.
Expertise in International Law: Often foreign lawyers also have expertise in international law, which will be beneficial to those Indian clients who are involved in cross-border transactions or disputes.
Access to Global Networks: Foreign lawyers can bring with them access to global networks of lawyers and law firms, which can benefit Indian clients seeking legal representation or advice in foreign jurisdictions. . In addition, it would provide an opportunity for Indian lawyers to learn from foreign lawyers and possibly work on international cases.
Promotion of India as a legal hub: Allowing foreign lawyers to practice law in India can help to promote India as a legal hub for all countries and it will attract more foreign investment and business to the country.
Opportunities for Indian lawyers: Allowing foreign lawyers to practice law in India can also provide opportunities for Indian lawyers to collaborate and learn from foreign lawyers, which can help improve the quality of legal education and training in India.
Expanding Legal Services: This would also increase the range of legal services that can be provided in India, which would be beneficial to businesses and individuals who want to engage in international trade and commerce.
Economic benefits: Allowing foreign lawyers in India could also have economic benefits as it would encourage foreign law firms to set up offices in India, create jobs and contribute to the growth of the legal sector in India.
Disadvantages of this new rule-
Impact on employment opportunities : One of the major disadvantages of allowing foreign lawyers to practice law in India is that it could have a negative impact on employment opportunities for Indian lawyers. If foreign lawyers are allowed to practice in India, they may be able to offer their services at lower rates, which could make it difficult for Indian lawyers to compete. This could lead to a reduction in the number of jobs available for Indian lawyers.
Understanding of Indian laws: Another disadvantage is that foreign lawyers may not have a thorough understanding of Indian laws and legal procedures. This could lead to them making mistakes or giving inaccurate advice to clients. This could have serious consequences for clients who rely on their legal representation.
Outflow of legal talent from India :Allowing foreign lawyers to practice in India could also lead to an outflow of legal talent from the country, as Indian lawyers may be attracted by higher salaries and better working conditions offered by foreign law firms. This could have a negative impact on the development of the Indian legal system.
Unethical practices and behavior: There are concerns about the ethical implications of allowing foreign lawyers to practice in India. Foreign lawyers may not be subject to the same ethical standards and regulations as Indian lawyers, which could lead to unethical practices and behavior. This could damage the reputation of the legal profession in India and undermine public confidence in the judicial system.
Violation of sovereignty: Allowing foreign lawyers to practice in India could be seen as a violation of Indian sovereignty as foreign lawyers may not be familiar with Indian law and culture, leading to potential misunderstandings and conflicts.
Lack of reciprocity: There is no guarantee that foreign countries would reciprocate and allow Indian lawyers to practice law in their countries, leading to an uneven playing field.
Risk of Exploitation: There is a risk that foreign law firms could take advantage of the Indian legal market, leading to exploitation of Indian lawyers and clients. Foreign law firms may also have an unfair advantage due to their greater resources and international relationships.
In conclusion, while there are valid arguments on both sides, the decision to allow foreign lawyers to practice law in India ultimately depends on weighing the potential benefits against the risks and potential disadvantages.
Previous cases regarding this BCI decision
The Lawyers Collective vs. Bar Council of India (2010)[4] – The Lawyers Collective, an NGO, challenged the Bar Council of India’s rule barring foreign lawyers from practicing law in India. The case went all the way to the Supreme Court, which upheld the bar rule but clarified that foreign lawyers can visit India temporarily to advise clients on foreign law or participate in arbitration proceedings.
AK Balaji Vs. Government of India (2012)[5] – In this case, the Madras High Court held that foreign lawyers cannot practice law in India even if they are merely providing legal advice on foreign law. The case was appealed to the Supreme Court, which forwarded it to a larger panel for further consideration.
Bar Council of India Vs. A.K. The Balaji[6]
The Bar Council of India Vs. A.K. The Balaji case was a landmark decision by the Supreme Court of India in 2018. The case dealt with whether foreign law firms and foreign lawyers could practice in India. In this case the Supreme Court upheld the decision of the Madras High Court and held that foreign lawyers and law firms could visit India on a “fly in and fly out” basis to give legal advice on foreign law, but could not set up permanent offices or practice. The court also ruled that foreign lawyers can participate in international commercial arbitrations held in India, but only if they are domiciled outside India.
Taken together, Bar Council of India Vs. A.K. The Balaji case shed light on the scope of practice of foreign lawyers and law firms in India and highlighted the importance of maintaining the independence and integrity of the Indian legal profession.
Conclusion
This significant new step by bar council of India is likely to pave the way for potential consolidation, particularly for firms engaged in cross-border mergers and acquisitions (M&A) matters. The entry of foreign law firms will go a long way in boosting India’s ambitions to be more visible and valuable in the global context, especially in the field of international trade and commerce. This new rule will be a game changer for mid-sized firms and will also help law firms in India achieve greater efficiency in talent management, technology, domain knowledge in a global context and management.
[1] Haniraj L. Chulani v. Bar Council of Maharashtra and Goa, AIR 1996 SC 1708
[2] Bar Council of India Rules, Rule 8 Chapter IV
[3] Section 29 of Advocates Act, 1961
[4] Lawyers Collective vs. Bar Council of India, 2010 (2) Mah LJ 726.
[5]AK Balaji Vs. Government of India AIR 2012 Mad 124
[6] Bar Council of India Vs. A.K. The Balaji, (2018) 5 SCC379
Author: Radha Sharma
Juris Centre 