The Society of Indian Law Firms (SILF) has flagged its concern regarding the Bar Council of India Rules for Registration and Regulation of Foreign Lawyers and Foreign Law Firms in India, 2022 notified recently, allowing the legal entry of foreign lawyers and law firms to practice foreign law in India on a reciprocity basis.
While SILF has welcomed the move, it also showed reservation regarding the timing of the release of the Rules and their implementation process and has made a representation to the BCI.
President Lalit Bhasin and Associate President Jyoti Sagar has on behalf of SILF laid out "blueprint of the future of the Indian legal profession."
The concerns highlighted are as below:
- Declaration of law in Bar Council of India vs. AK Balaji,
It has been stated that Rules are not in conformity with the verdict of the Supreme Court in Bar Council of India Vs. A.K. Balaji And Ors. [MARCH 13, 2018] 2018 Latest Caselaw 180 SC wherein it was held that only advocates enrolled with a State Bar Council could practice law - Indian or foreign - in India. It thus has been contended that Advocates Act must be amended to enable the entry of foreign lawyers and law firms rather Rules should be introduced. It has been claimed that the Rules are open to challenge in court.
- Legal market should be opened in phased manner
SILF is not for the ad-hoc opening of the legal market and rather want it to be in phased manner. The three phases should begin with phased liberalisation by reforming legal services sector. Reference to China, Singapore, Japan and Korea has been made where the "carefully articulated programs of opening up" took even decades.
"A three-phased sequential approach to the opening up of the Indian legal system must start with regulatory reform of the Indian profession which continues to be governed by centuries-old traditions while the world has moved on. It is imperative to create a level playing field for Indian lawyers by the time foreign lawyers are allowed in the next phase. Unfortunately, domestic reforms have remained unattended for a long time and have not been addressed with the same alacrity as the Rules," it stated.
- Distinctions between Indian lawyers/firms and foreign lawyers/firms discriminatory
It has been stated that Rules are discriminatory in its distinction between Indian lawyers/firms and foreign lawyers/firms as while Indian lawyers are still governed by the Advocates Act and other Rules framed by BCI, foreign lawyers and firms are governed by their home country's rules.
It has been stated that allowing foreign lawyers and even companies and corporations from practicing in India and not binding them Indian professional standards, can lead to undertaking markets, entering into fee arrangments and more.
- Lack of clarity on reciprocity
SILF states that the Rules are not clear on how reciprocity will be established in the case of a foreign firm with offices in multiple jurisdictions around the world. Sating that free movement of professionals across borders should be on 'equal' basis, it has been apprehended that while a foreign government or competent authority may acknowlege reciprocity, other discriminatory practices like immigration rules and work permits can make a mockery of reciprocity.
-Lacks framing of eligibility criteria for registration
It has been pointed out that that under the Rules, credentials of foreign lawyers and firms who will be allowed to work in India are left self-declared and no scrutiny regarding such as national security, foreign firms that undertake multi-disciplinary practice including law large accounting firms has been applied. Regulation on their relationship with Indian professionals is also lacking.
With above issue, it has been claimed that the Rules are highly likely to create prejudice, harm and loss of livelihood to the Indian legal fraternity.
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(With input from news agency language)
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