Are there any restrictions on the foreign lawyers or foreign law firms or law companies to practice law in India?
Firstly, let us see as to what is right to practice law. It may be pointed out that in the case of Pravin C. Shah v. K.A. Mohd. Ali, (2001) 8 SCC 650, the Supreme Court had held that the right of the advocate to practise envelopes a lot of acts to be performed by him in discharge of his professional duties. Apart from appearing in the courts he can be consulted by his clients, he can give his legal opinion whenever sought for, he can draft instruments, pleadings, affidavits or any other documents, he can participate in any conference involving legal discussions, etc.
A similar view was expressed by the Supreme Court in the case of Harish Uppal v. Union of India, (2003) 2 SCC 45.
So, basically, the right to practice law includes:
- appearing in the courts;
- consultation by clients;
- giving legal opinion whenever sought for;
- drafting instruments, pleadings, affidavits or any other documents;
- participating in any conference involving legal discussions.
Thus, practicing law includes litigation as well as non-litigation matters.
Keeping the above principles in consideration, in the case of Bar Council of India v. A.K. Balaji, (2018) 5 SCC 379, the Supreme Court held that the scheme in Chapter IV of the Advocates Act makes it clear that advocates enrolled with the Bar Council alone are entitled to practise law, except as otherwise provided in any other law. All others can appear only with the permission of the court, authority or person before whom the proceedings are pending. Regulatory mechanism for conduct of advocates applies to non-litigation work also. The prohibition applicable to any person in India, other than advocate enrolled under the Advocates Act, certainly applies to any foreigner also.
In this case, the Supreme Court further observed as under:
“Visit of any foreign lawyer on fly in and fly out basis may amount to practise of law if it is on regular basis. A casual visit for giving advice may not be covered by the expression “practice”. Whether a particular visit is casual or frequent so as to amount to practice is a question of fact to be determined from situation to situation. The Bar Council of India or the Union of India are at liberty to make appropriate rules in this regard. We may, however, make it clear that the contention that the Advocates Act applies only if a person is practising Indian law cannot be accepted. Conversely, plea that a foreign lawyer is entitled to practise foreign law in India without subjecting himself to the regulatory mechanism of the Bar Council of India Rules can also be not accepted. We do not find any merit in the contention that the Advocates Act does not deal with companies or firms and only individuals. If prohibition applies to an individual, it equally applies to group of individuals or juridical persons.”
“It is not possible to hold that there is absolutely no bar to a foreign lawyer for conducting arbitrations in India. If the matter is governed by particular rules of an institution or if the matter otherwise falls under Section 32 or 33, there is no bar to conduct such proceedings in prescribed manner. If the matter is governed by an international commercial arbitration agreement, conduct of proceedings may fall under Section 32 or 33 read with the provisions of the Arbitration Act. Even in such cases, Code of Conduct, if any, applicable to the legal profession in India has to be followed. It is for the Bar Council of India or the Central Government to make a specific provision in this regard, if considered appropriate.”
In view of these, the Supreme Court held that foreign law firms/companies or foreign lawyers cannot practise profession of law in India either in the litigation or in non-litigation side.
However, it was observed that there was no bar for the foreign law firms or foreign lawyers to visit India for a temporary period on a “fly in and fly out” basis for the purpose of giving legal advice to their clients in India regarding foreign law or their own system of law and on diverse international legal issues. It was clarified that the expression “fly in and fly out” will only cover a casual visit not amounting to “practice”.
The Supreme Court also stressed that there is no absolute right of the foreign lawyer to conduct arbitration proceedings in respect of disputes arising out of a contract relating to international commercial arbitration. If the Rules of Institutional Arbitration apply or the matter is covered by the provisions of the Arbitration Act, foreign lawyers may not be debarred from conducting arbitration proceedings arising out of international commercial arbitration in view of Sections 32 and 33 of the Advocates Act. However, they will be governed by the code of conduct applicable to the legal profession in India.
What about the BPO companies providing wide range of customised and integrated services and functions to its customers like word processing, secretarial support, transcription services, proof-reading services, travel desk support services, etc.? The Court held that mere label of such services cannot be treated as conclusive. It was held that if in pith and substance the services amount to practise of law, the provisions of the Advocates Act will apply and foreign law firms or foreign lawyers will not be allowed to do so.
It may thus be seen that there are wide-ranging restrictions on the foreign lawyers and foreign law firms / companies to practice law in India. And, as mentioned above, the meaning of the expression “practice law” is quite wide.
