The very recent notification of BCI allowing the entry of foreign lawyers has been in the limelight and controversial from the day of its issuance. Following this, the Society of Indian Law Firms (SILF) has sent a representation to the Bar Council of India (BCI) highlighting its concerns with the opening up of the Indian legal market. Although SILF clarified that it welcomes the move but is also concerned about the issues regarding the timing and implementation of the move. The representation majorly covered the following areas of concern and flaws in the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India.
- Rules are not in conformity with AK Balaji’s judgement of the Supreme Court
This case holds great value to the present matter as in this case it was held by the apex court that only advocates enrolled with a State Bar Council could practise law – Indian or foreign – in India. SILF claims that the Advocates Act must be amended to enable the practice of law by foreign lawyers. Failing this, the new BCI Rules will be open to challenge before the courts.
- Opening up of legal market should not be done in ad hoc manner
In past instances, a consensus was reached stating that the Indian legal market should be opened up in a phased manner. The first step of this phased liberalisation should be to reform the legal services sector. With this regard, reference was made to the liberalisation of legal markets in China, Singapore, Japan and Korea, where “carefully articulated programs of opening up” have been implemented, over decades.
- Rules discriminate between Indian lawyers/firms and foreign lawyers/firms
SILF has highlighted examples of how the Rules are discriminatory. For one, while Indian lawyers are still governed by the Advocates Act and other Rules framed by BCI, foreign lawyers and firms are governed by their home country’s rules. This is contrary to the BCI’s stand over the years, as well as the Supreme Court ruling in AK Balaji.
- Rules are deficient in understanding and implementing reciprocity
The concern is also shown regarding clarity of reciprocity in the case of a foreign firm with offices in multiple jurisdictions around the world.
- Rules are silent on eligibility criteria for registration of foreign lawyers/firms
SILP pointed out that the credentials of foreign lawyers and firms who will be allowed to work in India are left self-declared. There is no scrutiny regarding national security, foreign firms that undertake multi-disciplinary practice including law, such as large accounting firms, would be entitled to practise under the Rules. Further, there is no regulation on their relationship with Indian professionals.
Thus, while claiming that due to this measure, the Indian legal fraternity will suffer grave prejudice, harm and loss of livelihood, SILF has made the following request to the BCI:
- Commence consultation with SILF and other stakeholders of the Indian legal fraternity on Phase I reforms (domestic reforms) before foreign lawyers and firms are allowed to practise in India;
- Repeal/suspend Rules pending consultation
- Implement Phase I domestic reforms in a time-bound manner
- Reject/keep in abeyance any applications received from foreign lawyers and firms seeking registration in India.