Profession of Law

In a move that could transform the legal landscape, the Bar Council of India (BCI) has allowed foreign lawyers and law firms to practise law in India on a reciprocity basis. The BCI, which had earlier opposed the move, notified on Monday the Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022. Although appearing in courts is prohibited, foreign law firms can set up offices in India to practice transactional and corporate work on reciprocal basis.“A foreign lawyer registered under rules shall be entitled to practice law in India in non-litigious matters only,” the rules stated.“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 be allowed to practice on transactional work/corporate work such as joint ventures, mergers and acquisitions, intellectual property matters, drafting of contracts and other related matters on reciprocal basis,” the notification stated. 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. In case we sleep over the matter, the legal fraternity of India may be left behind in providing legal/professional expertise in accordance with the rule of law in a manner consistent with the best interests of this fast growing class of clients in India,” the Objects and Reasons of the notification stated. For a lawyer with a foreign law degree to be eligible to practice in India, he or she must be entitled to practice in his or her country and will also be required to register with the BCI. The reciprocity rule, however, will not apply if the foreign lawyer or law firm works on ‘fly in and fly out’ basis to advise Indian clients on foreign law.In 2015, the Supreme Court had interpreted the Advocates Act to allow ‘fly in and fly out’ practice by foreign lawyers. This meant that foreign lawyers could be engaged as counsel in international commercial arbitration on cases involving foreign law. Significantly, the restrictions on foreign lawyers and law firms will also apply to Indian lawyers working with foreign law firms. The rules also stated that the areas of law practice by a foreign lawyer or foreign law firm shall be laid down by the BCI and “if need be, the Bar Council of India may consult the Govt. of India, Ministry of Law and Justice in this regard. Significantly, under the rules, the 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. It is important to recall that one of the biggest concerns of most Indian law firms is whether foreign law firms would indirectly or in a surrogate manner practice Indian laws. As seen with the Profession of Chartered Accountancy where, Foreign firms were allowed to setup in India and then we all know how it took over the entire profession of Chartered Accountancy leaving Indian Chartered Accountants no option but to take employment in the said firms. BCI said that the entry of foreign firms will be restricted, well-controlled and regulated to ensure that it is mutually beneficial to Indian as well as foreign lawyers What does the current law say about foreign lawyers and law firms? According to the Advocates Act of India, 1961, the advocates enrolled with the BCI “alone” can “practice law” in India. For this, they must obtain a licence to practice as a lawyer from the BCI. However, they can only do so if their country allows Indian lawyers to practice legal professions there. In 2018, BCI told the Supreme Court that it was not in favour of allowing foreign law firms to open branch offices in India. The Supreme Court also passed a verdict stating that foreign lawyers and firms are not allowed to practice law in India unless they meet the requirements. BAR COUNCIL OF INDIA NOTIFICATION New Delhi, the 10th March, 2023 Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022 Objects and Reasons: No. BCI : D: 1260/2023. 1.In India Legal profession is treated as a noble profession. There is and should be no commercial competition or procurement associated with the Legal Profession. Legal Profession is not treated as a commercial activity or service in India. Law is not a trade, and briefs no merchandise so the leaven of commercial competition or procurement should not vulgarize the legal profession (Hon’ble Justice Krishnairyer, V.R .) 2. In the opinion of Bar Council of India the legal profession in India has to rise to the occasion to meet the global changes in the Legal Arena caused by migration of people from one country to other on such a large scale that had not been witnessed in earlier The world is becoming a global village. 3. International trade and commerce is advancing at a great pace. The demand for an open, responsive and receptive legal professional dispensation mechanism in India from clients/public who operate in international and cross-country business is becoming severe day by day. Growth in international legal work sphere and globalization of legal practice and internationalization of the law is increasingly becoming relevant to the growth of the legal profession and practices in 4. Bar Council of India was initially opposing entry of foreign lawyers and foreign law firms in India in any However, it was authorized by the legal fraternity of the Country in the years 2007-2014 in Joint Consultative Conferences of Bar Council of India and Chairmen, Vice-Chairmen and Chairmen of Executive Committees of all the State Bar Councils in India to hold dialogue and to interact with the Government of India, Ministry of