Bar Council of India (BCI) has decided to permit foreign lawyers and law firms to practice law in India on reciprocity basis along with certain restrictions including prohibitions on appearance in Indian Courts. BCI has released The Bar Council of India Rules For Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022, to facilitate the registration and practice of international lawyers in India. The Advocates Act, 1961 provides for constituting Bar Council of India and also respective State Bar Councils. Registration and enrollment with respective State Bar Council as an advocate is a must for every law graduate to appear before various Courts in India.
About Bar Council of India
- It is a statutory body constituted under the Advocates Act, 1961.
- It performs regulatory function by prescribing standards of professional conduct and etiquette and by exercising disciplinary jurisdiction over the bar.
- It also sets standards for legal education and grants recognition to Universities whose degree in law will serve as qualification for enrolment as an advocate.
- In addition, it perform certain representative functions by protecting the rights, privileges and interests of advocates and through the creation of funds for providing financial assistance to organise welfare schemes for them.
Composition of Bar Council of India
- There shall be a Bar Council for the territories to which this Act extends to be known as the Bar Council of India which shall consist of the following members, namely:
- The Attorney-General of India, ex officio;
- The Solicitor-General of India, ex officio;
- One member elected by each State Bar Council from amongst its members.
- No person shall be eligible for being elected as a member of the Bar Council of India unless he/she possesses the following qualifications: persons who have for at least ten years been advocates on a State roll.
Functions Allocated to Bar Council under the Advocates Act
- To lay down standards of professional conduct and etiquette for advocates.
- To lay down procedure to be followed by its disciplinary committee and the disciplinary committees of each State Bar Council.
- To safeguard the rights, privileges and interests of advocates.
- To promote and support law reform.
- To deal with and dispose of any matter which may be referred to it by a State Bar Council.
- To promote legal education and to lay down standards of legal education. This is done in consultation with the Universities in India imparting legal education and the State Bar Councils.
- To recognise Universities whose degree in law shall be a qualification for enrolment as an advocate – The Bar Council of India visits and inspects Universities, or directs the State Bar Councils to visit and inspect Universities for this purpose.
- To conduct seminars and talks on legal topics by eminent jurists and publish journals and papers of legal interest.
- To organise legal aid to the poor.
- To recognise on a reciprocal basis, the foreign qualifications in law obtained outside India for the purpose of admission as an advocate in India.
- To manage and invest the funds of the Bar Council.
- To provide for the election of its members who shall run the Bar Councils.
The Bar Council of India can also constitute funds for the following purposes:
- Giving financial assistance to organise welfare schemes for poor, disabled or other advocates,
- Giving legal aid, and
- Establishing law libraries.
The Bar Council of India can also receive grants, donations, and gifts for any of these purposes.
Legal Challenge for Foreign Law Firms entering Indian Legal Market
- With the advent of opening of market, legal and other service areas also saw relaxation and branches of foreign law firms started operating in India by providing back end support to lawyers abroad. This proved cost-effective business for such firms as legal service is expensive abroad.
- The matter came up before the Bombay High Court for the first time in 2009 in the case of Lawyers Collective v Union of India.
- The Bombay High Court interpreted Section 29 of the Advocates Act, which states that only advocates enrolled with BCI can practise law. The HC also held that ‘practice’ would include both litigious and non-litigious practice. So foreign firms can neither advise their clients in India nor appear in court.
- In 2012, the same matter came up before the Madras High Court in A.K. Balaji v Union of India.
| ADVOCATES ACT, 1961 Section 29 – Advocates to be the only recognised class of persons entitled to practise law ― Subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates. Section 30 – Right of advocates to practise ― Subject to the provisions of this Act, every advocate whose name is entered in the State roll shall be entitled as of right to practise throughout the territories to which this Act extends,― (i) in all courts including the Supreme Court; (ii) before any tribunal or person legally authorised to take evidence; and before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practise. |
Madras High Court Judgment –A.K. Balaji v Union of India
- Foreign law firms or foreign lawyers cannot practice the profession of law in India either on the litigation or non-litigation side, unless they fulfill the requirement of the Advocates Act, 1961 and the Bar Council of India Rules.
- However, there is no bar either in the Act or the Rules 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 advise to their clients in India regarding foreign law or their own system of law and on diverse international legal issues.
- Moreover, having regard to the aim and object of the International Commercial Arbitration introduced in the Arbitration and Conciliation Act, 1996, foreign lawyers cannot be debarred to come to India and conduct arbitration proceedings in respect of disputes arising out of a contract relating to international commercial arbitration.
Supreme Court’s Decision in Bar Council of India vs. AK Balaji & Ors – 2018
- Both the Madras and Bombay High Court judgments were challenged by the BCI and Lawyer’s Collective respectively before the Apex Court.
- Supreme Court upheld both the High Court judgments and states that foreign law firms/companies or foreign lawyers cannot practice profession of law in India – litigation or in non-litigation side.
- Supreme Court however held 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.
- The expression “fly in and fly out” will only cover a casual visit not amounting to “practice” and the Bar Council of India can further regulate this aspect of practice by foreign lawyers.
- 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.
- Supreme Court also held that the Bar Council of India is free to frame rules to govern practices of foreign lawyers and foreign law firms in India.
Why BCI is now allowing foreign lawyers and foreign law firms to practice in India?
- Bar Council of India has now framed Rules to govern practices of foreign lawyers and foreign law firms in India based on the Supreme Court decision in Bar Council of India vs. AK Balaji & Others.
- According to the Bar Council of India, opening up of law practice in India to foreign lawyers in the field of practice of foreign law; diverse international legal issues in non-litigious matters and in international arbitration cases would go a long way in helping legal profession/domain grow in India to the benefit of lawyers in India too.
- Standards of Indian lawyers in proficiency in law is comparable with the international standards and the legal fraternity in India is not likely to suffer any disadvantage in case law practice in India is opened up to foreign lawyers in a restricted and well controlled and regulated manner on the principle of reciprocity.
- Such reciprocity would be mutually beneficial for lawyers from India and abroad and the Rules framed by BCI are an attempt in this direction.
- These rules will also help to address the concerns expressed about flow of Foreign Direct Investment in the country and making India a hub of International Commercial Arbitration.
If foreign lawyers are not allowed to work in India now, legal fraternity of India may be left behind in providing legal/professional expertise in accordance to the rule of law in a manner consistent with the best interests of this fast growing class of clients in India.
| What is Allowed and What Prohibited For Foreign Lawyers & Foreign Law Firms under The BCI Rules, 2022 |
|
|---|---|
| Allowed | Prohibited |
| They shall be allowed to practice in non-litigation matters (where arguing before court is not needed) on transactional or corporate work such as joint ventures, mergers and acquisitions, intellectual property matters, appearing in international arbitration cases, drafting of contracts and other related matters on reciprocal basis. | Foreign lawyer or law firm shall not be entitled to practice law in India without registration with the BCI. The foreign lawyers or foreign law firms shall not be permitted to appear before any courts, tribunals or other statutory or regulatory authorities. They shall not be involved or permitted to do any work pertaining to the conveyancing of property, Title investigation or other similar works. |
| They are also allowed to provide legal expertise/advise and appearing as a lawyer for a person, firm, company, corporation, trust, society etc. who/which is having an address or principal office or head office in a foreign country in any international arbitration case which is conducted in India and in such arbitration case “foreign law may or may not be involved | Indian Lawyer enrolled with any State Bar Council in India working with foreign law firms as Partner or Associate registered in India * can take up only the non-litigious matters * can advise on issues relating to countries other than the Indian Laws only. * Such Lawyer shall have no advantage or right of his being an Advocate enrolled in India and cannot appear before Courts in India |
| Exception Created for Foreign Firms Operating on Fly in and Fly Out Basis. | |
| Registration with BCI is not mandatory for such foreign lawyers or foreign law firms who operate on a ‘fly in and fly out basis’ for the purpose of giving legal advice to the client in India regarding foreign law and on diverse international legal issues. | |
| Such foreign lawyer or foreign law firm who operate on‘fly in and fly out basis’ do not maintain an office in India for the purpose of such practice and such practice in India for one or more periods does not, in aggregate, exceed 60 days in any period of 12 months. | BCI may also refuse to register any foreign lawyer or law firm if “in the opinion of the Council, the number of Foreign Lawyers or Foreign Law Firms of any particular Foreign country registered in India is likely to become disproportionate to the number of Indian Lawyers or Indian Law Firms registered or allowed to practice law in the corresponding foreign country. |
Other Important Highlights of the BCI Rules, 2022
- A foreign lawyer or foreign law firm may apply for registration under these rules along with registration fee and guarantee amount either in person or through registered Post.
- The registration by the foreign lawyers or foreign law firms shall be valid for a period of 5 years only and the foreign lawyer and/or Law Firm would be required to renew it by filing an application for renewal within 6 months before the date on which such validity expires.
The registered foreign lawyer or foreign Law Firm shall be entitled to do the following things in connection with the practice of law in India:
- Open law office or offices in India for carrying on law practice in India. Bar Council of India shall be kept informed of the particulars of such office/offices viz. postal address, name of the owner/lessee of the property in which the office/offices are located and related documents.
- Engage and procure legal expertise/advise of one or more Indian Advocates Registered as foreign lawyers.
- Procure the legal expertise/advise of any Advocate enrolled with any State Bar Council in India on any subject relating to Indian Laws. But such registered foreign lawyer or foreign Law Firm shall not be entitled to appear before any Indian Court, Tribunal or any other statutory forum.
- Enter into Partnership with one or more Foreign Lawyers or Foreign Law Firm registered in India under these rules.
