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Of late, thanks to the recession in the West, many NRI lawyers working in law firms in London, New York and elsewhere, have returned 'home'. Many returnees have found employment with Indian law firms. Some of those who returned to India had acquired foreign nationality during their overseas stints. India does not recognise dual nationality. The Overseas Citizen of India (OCI) status comes close, but is not the same. An OCI cannot vote in Indian elections, cannot acquire farmland etc. However, an OCI is entiitled to work in India, subject to restrictions imposed by professional bodies, such as the Bar Council of India or the Institute of Chartered Accountants.

Under the Advocates Act 1961, only Indian citizens can be advocates. Any Indian lawyer who migrates overseas and acquires foreign nationality will immediately cease to an Indian advocate on acquiring such foreign nationality.

Until recently, any one in the UK who had a work permit for 4 years could become a permanent resident and every permanent resident could opt to be a British national after holding PR for a year. In other words, one could become a British national 5 years after landing in the UK. Due to changes to UK immigration laws, this period has become 6 years. Many NRI lawyers working in the UK have become British nationals, though there are a few patriotic souls who hang on to their dark blue Indian passports and live in the UK as permanent residents.

Considering the paranoia regarding the entry of foreign firms, one would expect a similar hullabaloo when a foreign national (albeit an OCI) takes up employment with a law firm. However, there seems to be none! Has the Bar Council of India allowed OCIs who qualified as Indian advocates before leaving India to continue on the rolls of state Bar Councils? Any comments?

Alfred, [forgetting his last name] is a Nigerian and was a partner with Titus for years.
Amarchand has recently hired an American (who could be of Indian/Pakistani ethinicity).
I know many Bhutanis and Nepalese who have graduated from Indian universities and have been enrolled with state bars..

to begin with, the bar council has to first consider working in law firms as practice of law... for them law begins at trial courts and probably ends up at Supreme court doorsteps... They have a rule which reuires advocates to surrender license if they take up a job. This rule smells not only stale (probably drafted half a century ago) but rotten. To get around this rule law firms retain lawyers on retainer!! (any sane man/court of law in the world would consider the retainer nothing more than another name of employment).

Let the Bar council first wake up from its deep slumber and then maybe think about corporate law as a form of lawyering!!

Corporate Lawyer, I agree that more than one foreign national has been enrolled with State Bar Councils and has got away with it. I guess this happened more because proof of nationality is not demanded at the time of enrollment, rather than because any State Bar Council waived the nationality requirement. Also, if the Indian Bar Council feels that law firms are not practising Indian law, there shouldn't be any objection to foreign law firms entering India to give transactional advice.

You have referred to Amarchand Delhi hiring an Irish lawyer named Paku Khan a couple of weeks ago. Khan used to work for A&L Goodbody, one of the largest Irish law firms. Khan is supposed to have been born in the US to Indian parents and moved to Ireland in 2002. The only difference between Khan and other persons of Indian origin who return to India after having acquired foreign nationality is that the latter were at one point registered as Indian advocates with a State Bar Council. However, when Khan was hired, Pallavi Shroff had this to say:

"Shroff said that Khan was not an Indian qualified lawyer yet.

Due to the restrictions on foreign lawyers practising in India, explained Shroff, Khan would not be able to sign off on opinions or give legal advice and would be supervised by her throughout.

"We realise the restrictions that exist and intend to work within the four corners of the law," she stressed, adding: "He's a great resource."

You can read the full article here.

You are right when you say that advocates cease to be advocates when they take up employment. However, this provision is rarely enforced. When a lawyer goes in-house, s/he rarely informs the Bar Council. Law firms keep lawyers on retainers more to help them avoid tax than to get around this restriction on employment. In fact, I believe, employment by a lawfirm is specifically exempt from this rule. To cut to the chase, various restrictions on who can be an advocate, especially nationality based restrictions, are rarely enforced by State Bar Councils. This makes it all the more clear that the outcry over the entry of foreign law firms is just a political balloon.

This is really interesting and something I have been wondering about for a long time too.

So what is the actual position of the letter of the law? Is a non-Indian citizen, non-NRI or non-PIO, non-OCI, etc. not allowed to qualify as a lawyer in India?

Does the Advocates Act actually spell this out?

This of course also goes to the heart of one major anti-liberalisation argument (reciprocity), which I admit I have never quite been able to understand exactly.

Also, out of interest, what happens to lawyers employed by LPOs? Are they also on retainers or do most have to give up their BCI membership?

The Advocates Act 1961 provides that only an Indian citizen can be an advocate. Section 24 of this Act provides for this.

What this in effect means is that not only should one be an Indian citizen at the time of registration as an advocate, one must continue to be an Indian citizen to be an advocate. The moment you nationality changes, you become ineligible to be an advocate.

The rule that only a lawyer appearing in court can be an advocate is contained in the rules of various State Bar Councils. For example, section 49 of the Bar Council of Delhi Rules say that

"49. An advocate shall not be a full-time salaried employee of any person, government, firm, corporation or concern, so long as he continues to practice, and shall, on taking up any such employment, intimate the fact to the Bar Council on whose roll his name appears and shall thereupon cease to practice as an advocate so long as he continues in such employment.

Nothing in this rule shall apply to a Law Officer of the Central Government of a State or of any Public Corporation or body constituted by statute who is entitled to be enrolled under the rules of his State Bar Council made under Section 28 (2) (d) read with Section 24 (1) (e) of the Act despite his being a full time salaried employee.

Law Officer for the purpose of these Rules means a person who is so designated by the terms of his appointment and who, by the said terms, is required to act and/or plead in Courts on behalf of his employer."

Kian, I ought to have clarified that India does not have dual nationality. Overseas Citizens of India and Persons of Indian Origin (PIO) are not Indian citizens. An NRI is an Indian citizen who is resident overseas. However, the terms NRI and PIO are usually mixed up.

OCIs and PIOs are not allowed to retain their Indian passports once they change their nationality. The OCI status is stamped on the foreign passport, like a permanent visa. PIOs just get a card which can be carried along with their foreign passports, but they don't need an Indian visa if they have that PIO card.

In other words, OCIs and PIOs cannot be Indian advocates under the Advocates Act 1961.

Thanks Nomad, that is fascinating.

So the Advocates Act says: a person shall be qualified to be admitted if "(a) He is a citizen of India:

Provided that subject to the other provisions contained in this Act, a national of any other country may be admitted as an advocate on a State roll, if citizens of India, duly qualified, are permitted to practise law in that other country;"

So now I finally understand where the reciprocity argument in the liberalisation debate comes from.

However, and correct me if I am wrong, surely Indian citizens would have no problem to practice in the UK or US if they are duly qualified (e.g., they take the qualified lawyers transfer test (QLTT) in the UK).

So, on a reading of just that section of the Advocates Act, a UK lawyer with a law degree from a qualifying university should be allowed to qualify in India?

So now again I am confused by what the reciprocity argument actually means, if anything.

Does it mean that India needs to set up a QLTT test for foreign lawyers so there is reciprocity? Or that the UK or US should drop the requirement of the QLTT for Indian nationals, however unlikely?

I have asked lots of lawyers about this but no one has been able to explain it in a manner I understand.

2. Getting back to the initial point, in practice the restriction does not seem to matter in many cases if the BCI accidentally admits you without checking your nationality. And they usually do not. Is that right?

Kian

Indian citizens can and do practice in the UK or US if they are duly qualified. I am an Indian national - with an Indian passport - and am dual qualified - in India and the UK.

I am eligible for British nationality, having lived in London for over 9 years. If I become British, I could arque that I had enrolled as an adocate when I was an Indian national and can continue to be dual qualified. Mind you, the conservative view is that on acquiring foreign nationality, I would cease to be eligible to be an advocate.

There is no provision for a foreign national with a law degree from a qualifying university to automatically qualify in India. The Bar Council of India jhas the power to permit that, but a bespoke rule is necessary. So far, no such rule has been framed.

Kian - I think it means that the other country should let Indian citizens practice without requiring any additional eligibility requirement (such as QLTT) at par with its own citizens; then India would also accord similar treatment - I thin the "duly qualified" refers to being duly qualified in India. But this raises a questions - what if a jux such as NY requires a bar exam for all then surely the Advocates Act doesn't expect Indian citizens to get a free ride without the bar exam just because India doesn't have a bar exam to offer to US citizens on a reciprocal basis!

This rule seems to have been framed in an era when the drafters had no awareness of qualification requirements in other jurisdictions as India has none (ok may be an appreticeship period in litigation for some time in history - not sure if it still around - but was struck out for practice in the Supreme Court in 1997 I know) and expected nothing more onerous than perhaps an appreticeship period.

Having read Section 24 of the Advocates Act a while back, I could not determine where support would lie for an argument that a person who was validly admitted as an Advocate (being an Indian national at the time of admission) would cease to be an Advocate on ceasing to subsequently be an Indian citizen.

Section 24 only states that Indian citizenship is a condition to admission as an Advocate on the state rolls - there is nothing about it being a continuing condition for being retaind on the state rolls as an advocate.

Indeed, the other conditions to admission in Section 24 seem to lend themselves to the view that they are all 'one-off' conditions prior to eligibility rather than continuing conditions, since they are all 'one-off' events. These include (i) having to cross 21 years of age, (ii) having to obtained an appropriate law degree, (iii) having to pay relevant stamp duty etc.

Furthermore, Section 26A of the Advocates Act, which confers on state bar councils the power to remove an admitted Advocate from the rolls, only grants such power in the event the Advocate is dead or where the Advocate has himself/herself made the request for being removed from the rolls. The only other circumstance where the power to remove an advocate from the rolls can be exercised is for misconduct - but it would be very difficult to argue that ceasing to be an Indian citizen is "misconduct" in any natural sense of the word.

I note that one of the previous posters mentioned that there was an argument that ceasing to be an Indian citizen would not affect their existing enrolment as an Advocate (on the basis that they were an Indian citizen when they were originally admitted as Advocates) but that the "conservative view" would be to the contrary. I am not sure what the basis for this "conservative view" is. To me, such a "conservative view" would appear to be the one to do violence to the otherwise clear language of Section 24.

This is actually, I suspect, an extremely important argument for those Indiians who went abroad during the boom years, subsequently acquired citizenship of other countries (such as UK and US) and now wish to return. If the citizenship of these returning Advocates becomes a big issue in the future, I suspect they would be able to take considerable comfort in the manner in which Section 24 and the other provisions in the Advocates Act are currently drafted and any opposing views would be subject to strong judicial challenge.

Just my 2 INR.

This is an interesting topic that I have been trying to get an answer for some time now.

Back to the 'advocates in law firms' question - Currently, when a student graduates from any law college in India, they apply for and usually receive membership on the State Bar Council.

But the same student gets hired by A&M or some other firm right after they graduate. So, what happens to their Bar membership now? Does the student (who was admitted just weeks ago to the Bar) write to the Bar Council and asked to be removed from the State rolls?

Do they cease to be an advocate from that point forward?

If the answer is Yes, it seems really unfair to me. When a student graduates from law college, provided the student wants to practice law, there are only a couple of options available. One is to hang up a shingle and work on their own or the second is to work for a law firm/in-house. How can the Bar Council effectively take away the rights of that many students who will potentially work in law firms or in-house departments.

It is like taking away the medical licenses of doctors who want to work for a Hospital. But letting them keep their license if they want to be in private practice on their own.

It just does not make sense.

So, I am guessing, since this does not make sense, that advocates and law firms are doing 'something' to get around it. As suggested by several comments here, do all the law firms hire their new associates on a retainer basis, and therefore avoid the "being employed by a firm" trap that the Bar Council lays? Or is that more of an anomaly? Are new graduates entering law firms really willing to give up on their licenses to join a firm?

Great debate! Is there anyone who has had experience in doing this? (i.e., going abroad, losing Indian citizenship and trying to come back as a lawyer?)

And what is the process like when you go in-house? Is it easy to get your membership back? From one person I have spoken to it took 3 years to get their membership card back, by which point they had moved in-house again and gave it back.

Interesting, my personal view is that Section 24 of the Advocates Act does not prevent an advocate from switching nationality. The reason I talked of a conservative view to the contrary is this:

Currently the Bar Council of India and various State Bar Councils have taken the stand that foreign law firms cannot set up shop in India. This legal rationale behind this position is rarely elaborated or explained. For example, can Clifford Chance open an India office run entirely by Indian nationals? Going by the shrill rhetoric that comes from the Bar Council of India and various advocates associations, the answer seems to be No, even though such a firm would be no different from Amarchand or AZB. The only explanation given for this stand is that law firms cannot have foreign ownership, even though advocates are prohibited from being employed by any one, even an Indian owned law firm. Is there any law which says a few ‘advocates’ can’t band together and form an affiliate of a foreign law firm? No, not unless section 24 is conservatively interpreted to mean ‘advocates must all times be Indian citizens and only Indian citizens must be involved in the practice of law in India in any form.’

I agree that a positive and forward looking interpretation of Section 24 will be extremely helpful for those Indians who went abroad during the boom years, subsequently acquired citizenship of other countries (such as UK and US) and now wish to return.

Kian, most advocates don’t bother to inform the State Bar Council when they go in-house. Unlike the UK or the USA, there are no periodic filing of forms or payment of fees required for Indian advocates. So, once you register as an advocate, you are an advocate for life!

Nomad,

Thanks, I understand your point regarding the lack of clarity with respect to the statutory basis for denying foreign law firms entry into India, although I do not think the reason is ultimately related to an Advocate having to continue to be an Indian citizen after he/she has been duly enrolled (i.e. the point of our present idscussion).

The point with regard to foreign ownership of law firms is, in my view, this (and I confess I have not spent an inordinate amount of time dwelling on it as life is too short et. al!):

1. An advocate in India statutorily needs to be an individual, Section 24 makes this clear. A body corporate cannot be an advocate. Thus, advocates have always practiced as body sole proprietorships or as partnerships (in each case, no body corporate is involved) - I am not clear how the recently introduced Indian LLP entity will work in this context, i.e. does the Advocates act actually allow law firms to be constituted as LLPs;

2. Under BCI regulations, an advocate cannot enter into partnership with a non-advocate in a fim which practices Indian law. Thus, for instance, Indian advocates and Indian chartered accountants cannot be partners in an Indian firm which offers legal and accountancy advice (although each lawyer and accountant who offers the legal and accountancy advice, respectively, under the aegis of such firm would be individually qualified to do so under the Advocates Act and any similar eligibility statute for Indian accountants);

3. For a foreign law firm to 'own' an Indian law firm, it must somehow participate in partnership with the partners of the Indian law firm and have some 'majority partnership rights' in the partnership agreement governing such Indian law firm'. However, it cannot participate in such Indian law firm through a 'body corporate', since 'body corporates' cannot practice law in India and cannot be partners in Indian law firms. This would mean that the foreign law firm would need to become a partner in the Indian law firm through an entity without legal personality (such as an English limited partnership, so as to limit their liability with respect to the obligations of the Indian law firm);

4. Apart from potentially causing tremendous tax problems to the partners of the foreign law firm (because they might, indirectly, be deemed to have a 'business connection' (where they are rsident in a non-treaty jurisdiction) or a a 'permanent establishment' (where they are rsident in a treaty jurisdiction) as a result of such partnership interest in the Indian law firm, if the consequence of such structure is that persons who are not qualified as advocates in India are partners in such law firm, then this would also fall foul of Bar Council regulations and the principle identified in point 2 above;

5. If a contractual solution is pursued (i.e. foreign law firm enters into a contract with the Indian law firm whereby it is entitled to participate in X% of Indian law firm's profits and share in [Y%] of Indian law firm's costs, has veto rights on some actions by the Indian law firms etc.), this could still be construed as the foreign law firm becoming a partner in, or creating a new partnership with, the Indian law firm (since a partnership is, in essence, nothing more than a contract to do business with a view to sharing profits).

Accordingly, in my view, this is in essence what I think causes problems with respect to foreign law firms owning Indian law firms as of the present date - i.e. the rules that only individuals can be advocates in India and that advocates cannot partner with non-advocates to run a law firm. It has very little to do with the continuing Indian citizenship of an advocate who was an Indian when he/she originally enrolled.

I would note that the court cases alleging that W&C, Ashursts and Chadbourne & Park wrongfully practiced Indian law also contains additional arguments about the breach by them of certain exchange control regulations pursuant to which they were originally accorded permission to open 'liaison offices' in India. This argument is not relevant for the purposes of our present discussion.

If you read through all of gunk I just wrote, I applaud your perserverence! If you think it makes sense, I applaud your bravery! :)

Apologies for any typos in the above post, I did not have time to spell-check when posting and could not easily locate any means of subsequently editing it (perhaps I need to be a registered user to edit?).

[Yes, as a registered user you can edit your posts for some time after they go live. -Kian
Ps: very well considered post, I thought, applause! :) ]