Foreign lawyers cannot carry out any litigation or non-litigation work in India on a permanent basis, the Supreme Court held in a ruling on Tuesday, which also gives the Bar Council of India (BCI) regulatory control over overseas legal professionals even if they are in the country on temporary assignments.
The court, which also heard over 30 law firms hailing from the United Kingdom, the USA, France and Australia, also modifed a Madras High Court order permitting foreign lawyers and law firms to come to India on a “fly in and fly out” basis for rendering legal services here on offshore laws and diverse international legal issues.
According to a bench a bench comprising Justices Adarsh Kumar Goel and RF Nariman, foreign lawyers or law firms can take up tasks here only on a purely temporary, casual basis. The court clarified that legal practice would include litigation and non-litigation work, such as giving of opinion, drafting of instruments, participation in conferences involving legal discussion as well. The top court said only advocates enrolled with BCI were entitled to practice law in India. All others can appear only with permission of court, authority or person before whom proceedings are pending.
“We hold that the expression ‘fly in and fly out’ will only cover a casual visit not amounting to ‘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,” a bench of Justices Adarsh Kumar Goel and U U Lalit said.
The BCI’s regulatory mechanism for conduct of advocates will apply to both litigation and non-litigation work. “Visit of any foreign lawyer on a 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’,” the court said.
“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,” it said, adding that BCI or the Centre were at liberty to make appropriate rules in this regard. The court rejected the contention that the BCI’s regulatory control only extended to a person practising Indian law. The court said the Advocates Act applied to individuals, groups of individuals, companies or firms. If a bar applies to one it applies to all, it said.
It further said that foreign lawyers do not have an absolute right to take part in international arbitrations. They can only do so in permitted under the rules. Regarding BPOs that provide a range of customised and integrated services, the court said, they would not violate the Advocates Act only if their activities did not amount to practice of law. The Madras HC had ruled that services such as word processing, secretarial support, transcription services, proof reading services, travel desk support services, etc., do not come amount to legal practice. The top court ruling, which came at the instance of the BCI which had challenged the flyin, fly-out ruling, further narrows down their work areas to keep out anything that can be termed as legal practice.
Reacting to the ruling which gives the BCI a greater role visà-vis foreign lawyers, Nishit Dhruva, Managing Partner, law firm MDP & Partners, said it would be interesting to see if any such new rules are formulated as, on the face of it, the flyin, fly-out policy violated the Advocates Act which mandate only advocates on the rolls of state bar councils to practice law in India.