General counsel (GCs) from at least 15 big Indian companies welcomed liberalisation in Indian legal services, and said that the Bar Council of India (BCI) was currently the “biggest bottleneck” to law firm liberalisation.

They also noted that in-house counsel, in India, were not unified like other pressure groups such as the Society of Indian Law Firms (Silf). The GCs, who declined to be identified, were discussing these views at a meeting on Friday morning at the International India conference of the International Technology Law Association (ITechlaw) 2017, which took place in Delhi from 1 - 3 February.

The BCI had rolled out two draft amendments - one each for the Advocates Act 1961 and one for the Legal Education Rules 2008 - after it threw a spanner into liberalisation discussions with the government. The BCI chairman also wrote to prime minister Narendra Modi threatening lawyers’ strikes if the BCI were to be abolished in the process of liberalisation.

Parties other than the BCI

The GCs noted that most stakeholders in the legal profession in India were making their move to the pro-liberalisation side for better work opportunities. “Senior practising counsel appear to be supporting the initiative. There’s Gourab Banerji, there’s Harish Salve,” said one GC about senior counsel we had reported as joining the English bar. The GC later added: “Everyone wants to join the London chambers. They are becoming relevant. A very good, large, substantial chunk of the practising counsel, those who are better than the best, support it.”

Another GC spoke on the “shift in the position of the [Society of Indian Law Firms]”, and remarked: “There is a Bombay club which is always there. Earlier, for every [approval] we had to go to the [Foreign Investments Promotion Board]. There were more rejections than there were approvals. Three days ago it has been abolished and the Bombay club has not made any noise. So slowly [Silf] will realise that people will have to join [pro-liberalisation views].”

The GCs, however, collectively agreed that groups in India representing in house counsel did not have any one “agenda”, be it pro-liberalisation or anti-liberalisation, and were open to discussing all viewpoints.

The pro liberalisation views

“We are already competing with UK and US (law) firms on the question of fees and services and are working closely with these firms in any case. It is only a question of time before they are allowed entry,” noted one GC. Another GC participating in the meeting said: “Today more than 40 per cent of our stock exchanges are owned by the US. Most companies on this table have pressure groups outside India. So why deprive the foreign law firms [of entry to India]?”

The GCs noted that they were “missing out on good advice” in areas of law, such as competition law, that were still nascent in India but further developed in other jurisdictions. “If you have businesses across the globe it helps [to have foreign lawyers’ advice],” said one GC.

“We are building world class universities for lawyers. If there are no foreign law firms in India to provide employment opportunities to these students when they graduate – then that would become a challenge in a few years where there would be many brilliant students but not enough job opportunities,” a participant noted.

Pinch of salt

The GCs also pointed out various gaps in professional regulations and standards that need to be resolved before complete liberalisation.

One GC said: “While I agree that quality will improve but we should not underestimate local advice.” The GC gave the example of a case where foreign lawyers advising the company did not list out all the regulatory compliances that the company needed to follow, until the company finally consulted local lawyers in India.

“Indian firms are disjointed across cities – the thinking is that ‘I fry my fish you fry yours’. Once I had to take my case from Delhi to Bombay and I felt like I lost a great [law firm] partner on the case because the partner here [in Bombay] was not even able to effectively join the conversation,” noted a GC. Another GC added: “I once had written dissenting opinions from partners from the same law firm, in different cities. I still have [those copies].” A third GC added in agreement: “We have partners working in silos in Indian law firms.”

Another GC voiced support for a bar exam “to demonstrate that practicing lawyers in India are all up to the global level”. “In India we’re coming from different states and different law schools so the standards may not be the same,” she said.

The India GC of an American company said that the rules in India requiring suspension of in house lawyers’ practicing license on joining a company, pose a problem in other jurisdictions and inhibit in house counsel from taking regional roles within their companies. The GC said that a resolution for this hurdle was “the first thing we need when we speak of liberalisation”.

One GC noted that before liberalisation, it was essential to weed out “fake lawyers” as “it doesn’t matter to [foreign law firms] whether we say we have 100 lawyers or 20 lawyers, but it matters to them that we’re [able to] say that these are the only 20”.

The 3-day conference on technology law had around 60 participants attending, including law firm lawyers and in house counsel. Out of the 60, many spoke on sessions held through the three days at ITC Maurya. In-house counsel from Boeing, Microsoft, The Bharti group, OLX, Nucleaus Software, Airtel, Autodesk, Hitachi, Samsung, Freshdesk, The Sona Group and other companies were present at the conference.