Foreign Lawyers, Firms Cannot Practice In India, Says Supreme Court

The verdict came on batch of petitions filed by Bar Council of India and others.

New Delhi:  Foreign firms, companies and law firms cannot practice legal profession in India, the Supreme Court said on Tuesday.

The top court, however, said that there was no bar on foreign law firms or foreign lawyers to visit India for a temporary period on a “fly in and fly out” basis for giving legal advice to their clients in India on foreign law or their own system of law and on diverse international legal issues.

The court’s verdict came on batch of petitions filed by Bar Council of India and others.

Justices AK Goel and Uday Lalit made it clear that the expression “fly in and fly out” will only cover a casual visit not amounting to “practice”. In case of a dispute – whether a foreign lawyer was limiting himself to “fly in and fly out” on casual basis for the purpose of giving legal advice to their clients in India – it can be determined by the Bar Council of India.

The court said that the Bar Council of India or Union of India can make appropriate rules in this regard including extending Code of Ethics being applicable even to such cases.

The court also said that foreign lawyers cannot be debarred completely from coming to India to conduct arbitration proceedings in disputes arising out of a contract relating to international commercial arbitration, if rules of arbitration permit such appearance. However, they will be governed by code of conduct applicable to the legal profession in India. Bar Council of India or the Union of India are at liberty to frame rules in this regard.

The Supreme Court held that practicing of law not only includes appearance in courts but also giving of opinion, drafting of instruments, participation in conferences involving legal discussion. The prohibition applicable to any person in India, other than advocate enrolled under the Advocates Act, certainly applies to any foreigner also. Visit of any foreign lawyer on fly in and fly out basis may amount to practice of law if it is on regular basis.

The court rejected the contention that the Advocates Act applies only if a person is practicing Indian law. Conversely, the plea that a foreign lawyer is entitled to practice foreign law in India without subjecting himself to the regulatory mechanism of the Bar Council of India Rules can also be not accepted.