Supreme court interprets scope of work for foreign lawyers

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In Bar Council of India v A K Balaji & Ors, the Supreme Court interpreted the expression “practise the profession of law” in the Advocates Act, 1961, which applies to foreign lawyers practising foreign law in arbitration proceedings and business process outsourcing (BPO)/legal process outsourcing (LPO) companies conducting business in India.

The court framed five legal issues and answered accordingly.

Does the expression “practise the profession of law” include litigation or non-litigation practice? The court held that the expression includes both types of litigation practice. Legal professional ethics apply not only when an advocate appears before the court, but also outside of the court.

Is the practise by foreign law firms or foreign lawyers permissible without fulfilling the requirements of the Advocates Act and the Bar Council of India (BCI) rules? The court held that the practise of law includes not only appearance in courts but also when giving opinions, drafting instruments and participating in conferences involving legal discussion (in non-litigation practice).

Is there a bar on law firms or lawyers giving legal advice on foreign law, but doing so by flying in and out of India? The court observed that foreign lawyers who “fly-in fly-out” may amount to practise of law if it is on regular basis. A casual visit for giving advice may not be covered by the expression “practise”. Whether a particular visit is casual or regular is a question of fact and determined on a case-by-case basis. The BCI the government of India are at liberty to make appropriate rules in this regard.

Are foreign law firms and lawyers barred from conducting arbitration proceedings and disputes arising out of contracts relating to international commercial arbitration? The court held that foreign lawyers are not completely barred from conducting arbitration proceedings. The court pointed out that in respect of disputes arising out of a contract relating to international commercial arbitration, proceedings may fall under sections 32 and 33 of the Advocates Act, read in conjunction with the provisions of the Arbitration and Conciliation Act, 1996. While foreign lawyers may not be debarred from conducting arbitration proceedings, they will be governed by a code of conduct applicable to the legal profession in India. The BCI and the government of India are at liberty to frame rules.

Do BPO and LPO companies providing integrated services come under the purview of the Advocates Act or BCI rules? In relation to BPO and LPO companies, the court held that merely providing customized and integrated services and functions such as word processing, secretarial support, transcription services, proofreading services, travel desk support services, etc., does not come under the scope of the Advocates Act or the BCI rules because the activities do not amount to the practise of law. Further, the mere label of such services cannot be treated as conclusive if the true nature and substance of the services amounts to the practise of law.

The dispute digest is compiled by Bhasin & Co, Advocates, a corporate law firm based in New Delhi. The authors can be contacted at [email protected] or [email protected] Readers should not act on the basis of this information without seeking professional legal advice.