In Conversation With Dr. Lalit Bhasin On New BCI Rules Allowing Foreign Firms In India (Part- 2)

Continued from part 1.

Can you please tell us what happened in the SILF meeting conducted on March 20?

So you see what everyone felt was that we want there to be rules and regulations which are not one-sided. You may allow the foreign lawyers to come but at the same time, you have to internally liberalize the Indian profession.You see,we cannot have our proper websites. They call it advertising. They call it publicity. We don't want what is happening in U.S.where you advertise on electronic media. No, we don't want that but we want at least dissemination of information about credentials and our expertise, our areas of practice, where all we have our offices in India. So that is all and then we can't have more than 20 partners. And these foreign law firms have hundreds and sometimes more and then, what we felt was that it was done in a grave hurry for the reason that possibly they did not understand the implications of the Supreme Court judgment which came in the year 2018 where the Appellant was BCI challenging the Madras High Court judgment in Balaji's case where the Madras High Court had said only Indian citizens can practice law in India but foreign lawyers can be allowed on fly in fly out basis. They can also come to periodically do some arbitration matters and the supreme court held in very clear terms that only Indian citizens can practice law in India. Then they went on to elaborate what they meant by practice of law. Practice of law does not just mean appearance in courts. Practice of law also includes all transactional work, corporate work, multinational company joint ventures and IPOs and everything joined that is the corporate law. Our interpretation is that it meant Practice of any type of law. Not just Indian law. 

Therefore, they're running a grave risk. You see, we don't want our country to become a laughing stock in the eyes of our foreign communities outside because the supreme court is bound to strike it down and anyone can challenge it. You see, The society of Indian Law Firms will not challenge it as we have put on record there. This is the What they have overlooked. The impact and effect of Supreme Court Judgment. Therefore my suggestion is to amend the advocates act. A simple amendment is required saying Indian citizens can practice law in India but the Bar Council of India, under certain rules and regulations to be framed, may also allow the foreign lawyers to come and practice in India. Simple. 

But they came out in a hurry with these regulations and are running a grave risk.And then assuming that the Supreme Court judgment has been overlooked the fact remains that the regulations as framed also go contrary to the provisions of the advocates act. For instance, disciplinary action.

BCI cannot take disciplinary action for any professional misconduct committed by foreign lawyers because the rule is that it is the regulatory body of that jurisdiction, so their own jurisdiction will take action. That may take years. And then it may not be a professional misconduct in their jurisdiction. It may be permissible there. Like a contingency fee is allowed in so many foreign countries but not in India. And there is no level playing field when they talk of reciprocity.Reciprocity means what? Will we be allowed to practice in the U.K? Firms like Baker and Mckenzie have about 100 offices all over the world. Now which country you are asking reciprocity from. So you have to be very specific about it. Yes, the UK allows Foreign lawyers on paper to register themselves. But, they don't give work permits so they don't give visas. So, how do you have reciprocity?

What Should be done to ensure that this announcement by BCI moves forward but it moves forward with the right framework in place? 

Yeah, I must put it on record ṭhat in the SILF meeting there was one very strong view that we should straight away challenge these regulations in the courts get some sort of a stay order against implementation. But then I said, I don't want SILF to go to court. First thing is that we must try to have a dialogue with the regulator that is the bar council of India. And they are conscious of the fact that there are certain deficiencies in their rules and regulations. There are certain anomalies which have to be set right because immediately within one day they came out with some clarifications. That means that they are open to some suggestions because they have been issuing what we call the FAQs. So they happen to respond. The idea is to meet them and talk to them. But it should be on equitable terms without sacrificing the interest of the fraternity. 

So is this move allowing the foreign firms in India a done deal now?Who do you think will benefit more from this move? The law firms or the professionals?

No. It will definitely help the law firm. But the first part of your that it is like a done deal. Definitely, as far as the Bar Council of India is concerned but can you anticipate that anyone will not go to the court? That this is against the supreme court judgment. Therefore it is subject to that. 

How do you see the move playing out in the coming period of time?

I just see it as more and more competent, efficient and large firms coming into India. Without describing them as foreign law firms I would put it this way that we welcome more law firms coming from different jurisdictions because that gives opportunities to our own people, Particularly the young people and the young lawyers. Definitely, it will be the right step. It will not hurt the Indian law firms because as I said, we stand on our own strength and we can face these challenges. If the foreign lawyers come and they acquire Indian talent we can also acquire some foreign talent. 

What are your views on how  arbitration India would be impacted?

Because of the use of technology, there are foreign lawyers who are already participating in Arbitration proceedings, right? We should have good arbitral institutions. The Government has now set up an International Arbitration council under Justice Hemant Gupta of the Supreme Court. That is the right step. But then, the Government should be detached in the form because it is the litigant. But at the same time, be very supportive as in singapore.

If you are a mid size law firm and you wish to partner with a foreign law firm, how should you prepare yourself to compete or collaborate with them?

It depends upon your relationship with your clients. You must have. Binding relationships with . your clients. The client should continue to have faith in you. And I think as far as Indian law firms are concerned whether they are the big law firms or emerging law firms, they have excellent relations with their clients because it is not just that they advise the clients on some particular issue. They become involved in the work practices in the culture of their clients because the lawyer must know something more about the business of the client, than just the legal part of interpretation of contracts. Therefore, they should have very good relations.

Do you think the Indian firms will have a cultural advantage over the incoming foreign firms?

They will definitely have an advantage because we know basically it is all indian culture and our indian law firms. They have become attuned to what is the requirement of the clients and it is very much clear. Now a lawyer must know more than the client knows because of the research tools that are available. The in-house lawyers and all they do their research, right? They go to the external council only if they find some vagueness and they are not sure. Therefore, a lawyer has to know more than what the client knows. And that is, what creates confidence in the client. 

In every service domain, brands matter. Do you think the regime will now allow more liberalization in law firms marketing themselves?

As I said,there is an uneven playing field. For instance, as in India, we can't even have our websites properly. Now what will happen Because of social media is that these foreign law firms who establish their offices in India can, through social media, do all the indirect and direct advertising. How will you create that level playing field? There should be a clear prohibition.I am totally against this principle of marketing, the legal field because I believe in India, we still consider this as a profession. Not as a business. But, Frankly speaking, as president of SILF, i am totally opposed to such practices. You have your clientele which should be based on the confidence that your client has in you. And then, If you are appearing in courts, the judgments will speak for you.Then your work will speak for itself. But certainly you feel that the law firm should be allowed to build their website and have their credentials because that is not advertising or soliciting work.