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Opinion: Why the Lawyers Collective judgment is wrong

Kaden Boriss founder Hemant Batra
Kaden Boriss founder Hemant Batra

The question is not whether to allow entry of foreign lawyers in India, but the question is until when can entry of foreign lawyers be prevented in India, argues Kaden Boriss Legal LLP founding partner Hemant K Batra.

India is a signatory to the General Agreement on Trade in Services (GATS) and is consequently under an obligation to open up the service sector to the Member Nations.

"'Services' as defined under GATS would include services in any sector including the `legal profession'. If India fails to provide a level playing field to foreign lawyers, it could run into the risk of facing complaints before the Council for Trade in Services of WTO where after India would be forced to take corrective actions. 

I am anticipating that it would actually become a political decision because a large section of Indian lawyers who are opposing the entry of foreign lawyers are basically into advocacy or court practice i.e. litigation.

Badly judged
The recent judgment of the Bombay High Court in Lawyers Collective Vs. Bar Council of India & Ors has restarted the debate on the entry of foreign lawyers and the meaning of the legal profession.

As per the judgment, `practising the profession of law' includes litigious as well as non-litigious matters. In other words, if one is not enrolled as an advocate, one cannot draft any legal document.

With due respect, I beg to differ from the judgment for the following reasons:

1.    If the judgment is to be applied in its present form then none other than advocates can draft legal documents in India. What will happen to chartered accountants, company secretaries, engineers and non-enrolled law graduates who are already doing legal documentation work. What about deed writers who sit outside Tehsils and Registries to draft conveyance and lease deeds, affidavits, wills etc. These are all legal documents. What about warranties and guarantees drafted by engineers? This judgment is like Pandora 's Box which has the potential to open flood gates of chaos.

2.    When the Reserve Bank of India (RBI) had stated that liaison office can neither render services nor generate income then where does the question of practise of profession arise? It was a different matter, if the liaison office was found guilty of breaching the terms of the permission letter and found to be rendering services but that was not the case.

3.    The Government's argument was that law practise means practise in the court of law, but in my opinion it would also include drafting of pleadings, rendering legal opinions and assisting clients in regulatory compliances. If we go by the judgment, only advocates can do that. Would the Bar Council now direct millions of non-lawyer professionals to not engage in any kind of legal or para-legal documentation?

4.    Perceived in the light of this judgment, what would be the fate of non-lawyer power of attorney holders, who are engaged in para-legal activities on behalf of their clients, friends and colleagues?

5.    The judgment not only abrogates the RBI permission letters but has also reinterpreted the term `legal profession', which will have wide ramifications. 

Split the profession
In my view the legal profession in India needs to be bifurcated into two parts - law practice and legal services by bringing in legislative changes unless the Supreme Court of India decides to reinterpret the law laid down recently by the Bombay High Court.

Law practice should include practice in a court of law, drafting of pleadings, appearing in courts and issuing legal opinions. While legal services should include work like legal documentation, corporate and commercial advisory, regulatory work etc. This principle is also embodied in the Advocates Act, 1961 which regulates legal practice in India. Though `legal practice' is not defined in specific terms under the Act but a constructive analysis of demonstrates that practice is restricted only to appearance before any court or any judicial forum. It does not include legal documentation, arbitration and other legal or paralegal services.

The foreign lawyers and law firms may be allowed to render legal services to begin with and later if there is not much opposition they could even be permitted to practice law.

Reciprocal
As of today the Advocates Act provides that a person shall be qualified to be admitted as an advocate on the state roll if he is a citizen of India.

Now, subject to the Act a national of another country may be admitted as an advocate on the state roll if duly qualified citizens of India are permitted to practice law in that country. Therefore, India may also stipulate prerequisites for foreign professionals intending to either practice or render legal services in India. Such prerequisites could be fulfilment of minimum aptitude tests and reciprocal treatment meted out to Indian lawyers by country of their origin.

Interestingly, the Advocates Act embodies the principle of reciprocity as one of its provisions with the rider that where a country specified by the Indian Government prevents the citizens of India from practicing the profession of law and subjects them to unfair discrimination in that country, no subject of such country shall be entitled to practice that profession of law in India.
 
Bring them in
I favour the entry of foreign law firms in India for the following reasons:

1.    It would generate diverse work and employment opportunities for local lawyers as the foreign law firms will not export foreign lawyers into India. They would rather train and hire Indian lawyers for obvious economic reasons and knowledge of local laws;
2.    It would give tremendous exposure to local lawyers in the new areas of practice;
3.    It would raise the stature of the legal professionals;
4.    It would raise the level of remuneration for the legal professionals;
5.    It would introduce a high degree of integrity and efficiency in the profession; and
6.    It would make lawyers more accountable to their clients.

It is a fact that many foreign firms are thronging with lawyers of Indian origin. They would eventually be relied upon for work related to India legal sector, which in turn shall further benefit us.
In today's technology driven world, one can create physical barriers for entry of individuals. However, those barriers become superficial with foreign lawyers advising clients on Indian matters by means of video conferencing, over telephone and through web mail.

Hemant K Batra is the lead partner of Kaden Boriss Legal LLP.

He frequently writes on his blogs at hemantbatra.wordpress.com/ and www.blog.hemantbatra.org/

Entry of Foreign Law Firms in India: A Factual Matrix
By Hemant Batra
The question is not whether to allow entry of foreign lawyers in India, but the question is until when can entry of foreign lawyers be prevented in India?
India is a signatory to the General Agreement on Trade in Services (GATS) and is consequently under an obligation to open up the service sector to the Member Nations.
“'Services’ as defined under GATS would include services in any sector including the `legal profession’. If India fails to provide a level playing field to foreign lawyers, it could run into the risk of facing complaints before the Council for Trade in Services of WTO where after India would be take corrective actions.  
I am anticipating that it would actually become a political decision because a large section of Indian lawyers who are opposing the entry of foreign lawyers are basically into advocacy or court practice i.e. litigation.
The recent judgment of the Bombay High Court in Lawyers Collective Vs. Bar Council of India & Ors has restarted the debate on the entry of foreign lawyers and the meaning of the legal profession. As per the judgment, `practising the profession of law’ includes litigious as well as non-litigious matters. In other words, if one is not enrolled as an advocate, one cannot draft any legal document. With due respect, I beg to differ from the judgement for the following reasons:
1.    If the judgement is to be applied in its present form then none other than advocates can draft legal documents in India. What will happen to chartered accountants, company secretaries, engineers and non-enrolled law graduates who are already doing legal documentation work. What about deed writers who sit outside Tehsils and Registries to draft conveyance and lease deeds, affidavits, wills etc. These are all legal documents. What about warranties and guarantees drafted by engineers? This judgement is like Pandora ’s Box which has the potential to open flood gates of chaos.

2.    When the Reserve Bank of India (RBI) had stated that liaison office can neither render services nor generate income then where does the question of practise of profession arise? It was a different matter, if the liaison office was found guilty of breaching the terms of the permission letter and found to be rendering services but that was not the case.


3.    The Government’s argument was that law practise means practise in the court of law, but in my opinion it would also include drafting of pleadings, rendering legal opinions and assisting clients in regulatory compliances. If we go by the judgement, only advocates can do that. Would the Bar Council now direct millions of non-lawyer professionals to not engage in any kind of legal or para-legal documentation?


4.    Perceived in the light of this judgement, what would be the fate of non-lawyer power of attorney holders, who are engaged in para-legal activities on behalf of their clients, friends and colleagues?

5.    The judgment not only abrogates the RBI permission letters but has also reinterpreted the term `legal profession’, which will have wide ramifications.  
In my view the legal profession in India needs to be bifurcated into two parts - law practice and legal services by bringing in legislative changes unless the Supreme Court of India decides to reinterprets the law laid down recently by the Bombay High Court.
Law practice should include practice in a court of law, drafting of pleadings, appearing in courts and issuing legal opinions. While legal services should include work like legal documentation, corporate and commercial advisory, regulatory work etc. This principle is also embodied in the Advocates Act, 1961 which regulates legal practice in India. Though `legal practice’ is not defined in specific terms under the Act but a constructive analysis of demonstrates that practice is restricted only to appearance before any court or any judicial forum. It does not include legal documentation, arbitration and other legal or paralegal services.
The foreign lawyers and law firms may be allowed to render legal services to begin with and later if there is not much opposition they could even be permitted to practice law. As of today the Advocates Act provides that a person shall be qualified to be admitted as an advocate on the state roll if he is a citizen of India. Now, subject to the Act a national of another country may be admitted as an advocate on the state roll if duly qualified citizens of India are permitted to practice law in that country. Therefore, India may also stipulate prerequisites for foreign professionals intending to either practice or render legal services in India. Such prerequisites could be fulfilment of minimum aptitude tests and reciprocal treatment meted out to Indian lawyers by country of their origin.
Interestingly, the Advocates Act embodies the principle of reciprocity as one of its provisions with the rider that where a country specified by the Indian Government prevents the citizens of India from practicing the profession of law and subjects them to unfair discrimination in that country, no subject of such country shall be entitled to practice that profession of law in India.
 
I favour the entry of foreign law firms in India for the following reasons:
1.    It would generate diverse work and employment opportunities for local lawyers as the foreign law firms will not export foreign lawyers into India. They would rather train and hire Indian lawyers for obvious economic reasons and knowledge of local laws;
2.    It would give tremendous exposure to local lawyers in the new areas of practice;
3.    It would raise the stature of the legal professionals;
4.    It would raise the level of remuneration for the legal professionals;
5.    It would introduce a high degree of integrity and efficiency in the profession; and
6.    It would make lawyers more accountable to their clients.
It is a fact that many foreign firms are thronging with lawyers of Indian origin. They would eventually be relied upon for work related to India legal sector, which in turn shall further benefit us.
In today’s technology driven world, one can create physical barriers for entry of individuals. However, those barriers become superficial with foreign lawyers advising clients on Indian matters by means of video conferencing, over telephone and through web mail.


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