Foreign Law Firms/lawyers can’t ‘practice’ in India; ‘Casual visit’ on fly in and fly out basis permissible: SC

Supreme Court: In a crucial verdict, the bench of AK Goel and UU Lalit, JJ held that foreign law firms/companies or foreign lawyers cannot practice profession of law in India either in the litigation or in nonlitigation side.

The Court explained:

“practicing of law includes not only appearance in courts but also giving of opinion, drafting of instruments, participation in conferences involving legal discussion. These are parts of non-litigation practice which is part of practice of law. Scheme in Chapter-IV of the Advocates Act makes it clear that advocates enrolled with the Bar Council alone are entitled to practice 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.”

“Fly in and fly out” basis:

  • Visit of any foreign lawyer on fly in and fly out basis may amount to practice of law if it is on regular basis. A casual visit for giving advice may not be covered by the expression ‘practice’.
  • In case of a dispute whether a foreign lawyer was limiting himself to “fly in and fly out” on casual 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 or whether in substance he was doing practice which is prohibited can be determined by the Bar Council of India.
  • Bar Council of India or Union of India will be at liberty to make appropriate Rules in this regard including extending Code of Ethics being applicable even to such cases.

Bar on conducting arbitration in India:

  • 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 code of conduct applicable to the legal profession in India.
  • Bar Council of India or the Union of India are at liberty to frame rules in this regard.

Services provided by BPO Companies:

  • BPO companies providing range of customized and integrated services and functions to its customers may not violate the provisions of the Advocates Act, only if the activities in pith and substance do not amount to practice of law. The manner in which they are styled may not be conclusive.
  • If their services do not directly or indirectly amount to practice of law, the Advocates Act may not apply. This is a matter which may have to be dealt with on case to case basis having regard to a fact situation

The Court was hearing the appeal arising from the Judgment of Madras High Court in A.K. Balaji v. Government of India, 2012 SCC OnLine Mad 723 : AIR 2012 Mad 124 and Bombay High Court in Lawyers Collective v. Bar Council of India, 2009 SCC OnLine Bom 2028 : 2010 (2) Mah LJ 726 on the issue of whether foreign law firms/lawyers are permitted to practice in India. [Bar Council of India v. A.K. Balaji, 2018 SCC OnLine SC 214, decided on 13.03.2018]

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