Seemingly open, technically closed – Foreign Law Firms Not Welcome
Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022
The Bar Council of India, in response to a long-standing debate in the Indian Legal fraternity, recently notified Rules seemingly permitting foreign lawyers and foreign law firms to practice law in India.
While the objects and reasoning of Rules, provide that the intent is to grow the legal profession in India by opening up the practice of law to foreign lawyers / law firms (in non-litigious matters), the conditions imposed tell a different tale.
The Rules provide for the process of registration and qualification of foreign lawyers / law firms which is all well and good. However, one proviso contained in the Rules, when read literally, effectively vitiates not only the stated objective of the Rules but also appears to be in direct contravention of the other parts of the Rules which provide for the areas of practice that are permissible for foreign lawyers / law firms.
The proviso states that an Advocate who is enrolled with a State Bar Council and is a partner or associate in any Foreign Law Firm registered in India under the Rules, can take up only non-litigious matters and can advise on issues relating to countries other than Indian Laws only. The proviso further provides that such lawyer can have no advantage / right of his being an Advocate enrolled in India.
Incorrect grammar and poor sentence construction are least of the problems of this proviso. Contrary to what the rest of the Rules seem to suggest, this proviso appears to be stating that any Indian State Bar Council enrolled Advocate who joins a Foreign Law Firm as an Associate or a Partner will have to restrict his / her practice to not only non-litigious matters but also to matters relating to laws other than India only.
The proviso causes several issues:
- The provision prohibits the practice of Indian law by an Indian lawyer who joins a foreign law firm. Accordingly, an Indian lawyer not dual qualified cannot practice law at all.
- The pool of Indian lawyers having dual qualifications and registered to practice laws other than Indian is limited. Further, within such pool of Indian lawyers are likely to not have the experience or updated knowledge of laws of other countries and ought to and will be circumspect on advising on laws other than India, thereby further limiting the pool.
Given the above, it is likely that Foreign law firms will struggle to attract good talent to their Indian operations.
Thus, while the Rules are seemingly designed to open up the legal profession by permitting foreign law firms to set up base in India, the proviso suggests that Foreign Law Firms are not truly welcome. Until the Bar Council or any High Court / Supreme Court, clarifies the impact of this debatable proviso, it is unlikely that Foreign Laws Firm will queue up to open offices in India.