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ABA-India panel debate: Can foreign lawyers practice foreign law in India; can Indians lawyer in NY/Lon?

Uncertainty still prevails over whether overseas lawyers can fly into India to advise on foreign law, concluded an animated panel-discussion at the first American Bar Association (ABA) conference in India held last week at the Taj Lands End in Mumbai.

Towards the end of the conference’s fifth session, which was to deal with lawyers’ professional responsibilities and ethics, the discussion branched out into the question of whether foreign lawyers could “fly-in-fly-out” (FIFO) to India to advise clients on foreign laws.

Hans Michael Giesen, Berlin-based partner of German law firm Görg, was chairing the session. He asked panelist PSA Legal Counsellors founder partner Priti Suri whether she would hypothetically invite fellow panellist and Shearman & Sterling of counsel, Rob Mundheim, to India to get him to give legal advice on a memo of a client they were jointly advising.

“That’s dangerous territory,” mused Suri.

Suri had filled in on the panel last-minute for Society of Indian Law Firms (SILF) president Lalit Bhasin, whose flight from Delhi had been delayed. Unlike Bhasin, who is often publicly opposed to the entry of foreign firms, Suri appeared to steer a more neutral course and gave her interpretation of the law.

“I would invite him because a one-off meeting between an Indian and a foreign lawyer explaining the client’s memo is not engaging in the practice of law by the foreign lawyer,” she said.

“I would invite both of them to England,” interjected London-based Clifford Chance executive partner and general counsel Chris Perrin gleefully. “If you have and Rob has any problems, just come to London. There are absolutely no restrictions in discussing any law here.”

Starting with Suri, Giesen sought the panellists’ views on their respective jurisdictions’ position on the practice of FIFO by foreign lawyers.

Suri said: “At this point in time there is a lot of debate on this subject in India. Is fly-in-fly-out acceptable? Even though it is a subject of litigation [in the Madras High Court], people indulge in that. Codification of the law [on this] is required.”

Perrin explained the UK’s position that an Indian Law firm can open an office anywhere in England if it is advising on Indian Law or any other non-English Law. It can also advise on English law, apart from certain excepted areas in which foreign lawyers can advise with English solicitors. He added: “There is no reason why Indian advocates cannot come in and be partners of those English solicitors”.

Mundheim stated that the US legal market was also fairly open to foreign lawyers, although it varied widely from state to state. In some states, FIFO was prohibited, but in many states such as New York, foreign lawyers could practice as “foreign legal consultants” if they were a “member of good standing” in a recognized legal profession abroad, who had been practicing for at least three out of the last five years [Full New York rules available here]


The discussion returned to Suri, who clarified the Indian position in law: “Our [Advocates] Act and the rules when they were drafted didn’t really deal with the issue as such. But it is very clear that foreign law firms are not allowed [to open] in India. Even the market would have to undergo structural changes to allow that.”

“In 1961 foreign law firms weren’t interested in coming to India,” agreed Perrin. “But now that has changed.” He complained that the present Indian legal position on the issue was something he was “very sad” about, and added that allowing foreign lawyers would only benefit India.

Taking Brazil and Singapore’s example, Perrin commented that while similar restrictions in the former jurisdiction had obtained “a rather silly result”, the latter was a good example of a jurisdiction which has moved forward.

“Initially foreign lawyers couldn’t practice any law for a long time in Singapore, then the rules got relaxed and they were allowed to practice their own law but not Singaporean law, and now a large number of foreign law firms have been allowed to practice Singaporean law as well”, he observed.

Giesen turned to Indian lawyers in the audience for a response to the question that by now was looming large over the heads of all foreign lawyers present in the room, “What is the Indian approach to FIFO?”

Legally India publishing editor Kian Ganz asked whether the Bombay High Court judgment in the Lawyers’ Collective case implicitly also included a ban on foreigners advising on non-Indian law in India.

Perrin responded that what he liked to refer to as “the Bombay judgment” did not prevent this according to his reading, although it was silent on some points. Despite equating both transactional and court-based legal work as practice of law, “what it does not do is to address the issue of what is foreign law”, he said.

“It is not so much that the Bombay Court judgment is restraining foreign lawyers from flying in and flying out,” he said, “but it is the approach of the Bar Council [of India].”

He added that the foreign firms’ current strategy was also not to seek confrontation with local regulators but to co-operate.

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