At a smaller meeting called by the commerce ministry on 1 September with legal industry stakeholders, including Society of Indian Law Firms (Silf), the Indian National Bar Association (INBA) and Bar Association of India (BAOI), the three Silf members present reiterated their position that foreign law firms, if they were to enter India, shouldn't be allowed to hire Indian lawyers.

Representing

Silf chairman Lalit Bhasin and senior Silf members Mohit Saraf (the senior partner of Luthra & Luthra) and Jyoti Sagar (the now part-retired founder of J Sagar Associates (JSA)) were at the meeting for Silf.

Also in attendance was Bar Association of India (BAOI) president Prashant Kumar, who had also been at previous meetings such as the much bigger one in July that included Bar Council of India (BCI) and law minister.

(Bhasin had incidentally been Kumar's predecessor at the BAI, having been appointed BAOI president in September 2016; the BAOI website, which does not appear to have been updated in several years, still lists Bhasin general secretary of the organisation, while Kumar is listed as associate general secretary).

The third group present at the 1 September meeting was INBA. INBA secretary general Kaviraj Singh and INBA member and TechLegis founder Salman Waris both recounted that the three Silf members pressed the issue of banning foreign firms hiring Indian lawyers.

Singh said: “They are vehement, and are strongly opposing that foreign law firms hire Indian lawyers”, noting that Bhasin, Sagar and Saraf had all made the point.

Silf chairman Bhasin commented: “We have already made our position that it has to be done in phases. First phase is internal reforms, coupled with opening of legal services sector that you allow them to come and practice law of their own jursidiction.”

“Internal reforms will not take time,” added Bhasin. “There is only BCI, which has to amend certain rules.”

Bhasin noted that, in a softening of its initial proposals, Silf had now “combined the first and second phase into one”, though the “first phase will not permit foreign lawyers to engage Indian lawyers”, according to Silf.

“After the first phase is done it will lead to second phase of limited participation of Indian lawyers by foreign lawyer,” he said.

Bhasin said that the commerce secretary and Silf were “on completely the same wavelength”.

INBA disagrees, thinks foreign firms should hire Indian lawyers

The INBA members present on 1 September disagreed with Bhasin and the Silf delegation analysis.

“I said,” explained Singh, “foreign law firms are already hiring Indian qualified lawyers but are practising in Singapore and rendering opinions.”

Waris said he also responded to the Silf members at the meeting by asking why foreign law firms should not be allowed to hire Indian lawyers here in India, if in any case foreign law firms are already hiring Indian lawyers to work abroad advising on Indian transactions.

Waris had made a similar point in response to the same argument by Silf in July's larger meeting with the law minister, which also included the Bar Council of India (BCI).

We put that same question to Bhasin by phone today, who said: “If they're doing it they [foreign firms] are doing it for their own personal practice you see - to promote their work. If the law of that jursidiction permits that - but our law does not permit that.”

According to Waris and Singh, members of the Silf delegation then followed up with the point that Indian law firms had not hired any foreign lawyers, so why should foreign law firms be hiring Indian lawyers.

Waris said he then pointed out a counter-example of Link Legal India Law Services having been reported to have hired a former Pinsent Masons senior partner only the previous day.

(There are also several more examples that we have reported in previous years on Legally India, such as AZB in 2014, Amarchand and Khaitan & Co, IndusLaw in 2015).

Ball in ministry's court?

Traditionally, one of the top concerns of some top Indian law firms' promoters about liberalisation has been that foreign law firms would cherry-pick from the valuable senior second layer of partners from domestic firms.

We have reached out to Sagar and Saraf for comment about Silf's rationale to preventing foreign law firms from hiring local lawyers.

Saraf declined to comment.

Sagar did not want to comment on the content of the meeting, saying: “I can't talk to that - it's up to [commerce secretary] Sudhanshu Pandey.”

Sagar denied that Silf had any remaining “sticking points” (such as the hiring of local lawyers) but said only several issues remained, noting “there is ongoing discussion”, and that the Silf position was no different than its originally published proposal.

That Silf paper from August 2016 had suggested three-phased gradual approach to liberalisation, which Bhasin had earlier separately said could take five to seven years, though as reported Bhasin is now open to a condensed schedule of only two phases.

“SILF, we see this in a very holistic way: there are several points of discussion, and different viewpoints: the consensus has to be built,” said Sagar.

According to a follow-up from the ministry sent after the meeting, the following action points resulted from the meeting with a deadline of 20 September:

a) Stakeholders to provide comments and inputs on the issues discussed in the meeting. Also, it is requested to suggest precise elements which needs to be addressed in this regard along with the roadmap/timelines.

b) BAI is requested to provide documentation on liberalisation processes in Asia-Pacific region.

c) SILF/BAI is requested to provide details on the BRICS legal forum.

d) DOC to prepare a paper on reforms in legal services in consultation with stakeholders.