Advocates Act, 1961:
ss. 24, 29, 47(2) r/w s.49(1)(e) and s.49A – Foreign law firms/lawyers – Permissibility to practice in India – Held: Practice of law includes litigation as well as non-litigation – Giving of opinion, drafting of instruments, participation in conferences involving legal discussion are parts of non-litigation practice – Regulatory mechanism for conduct of advocates applies to non-litigation work also – As per the Act, advocates enrolled with the Bar Council alone are entitled to practice law – Foreign law firms/companies or foreign lawyers cannot practice profession of law in India either in the litigation or in non-litigation side – Visit of any foreign lawyer on fly in and fly out basis may amount to practice of law if it is on regular basis – A casual visit for giving advice may not be covered by the expression ‘practice’ – Whether a particular visit is casual or frequent so as to amount to practice is a question of fact to be determined from situation to situation – It is not correct that the Act applies only if a person is practicing Indian law – A foreign lawyer is not entitled even to practice foreign law in India without subjecting himself to the regulatory mechanism of the Bar Council of India Rules – Advocates Act equally deals with companies or firm and individuals – Bar Council of India Rules,1975.
ss. 32 and 33 – Foreign law firms/lawyers – Permissibility to conduct arbitration proceedings – In respect of disputes arising out of a contract relating to international commercial arbitration – Held: There is no absolute right of foreign lawyer to conduct such arbitration proceedings – However, they may not be debarred from conducting such arbitration proceedings in view of ss. 32 and 33, if the Rules of Institutional Arbitration apply or the matter is covered by the provisions of Arbitration Act – But they will be governed by Code of Conduct applicable to legal profession in India – Central Government or Bar Council of India is at liberty to frame rules in this regard.
Applicability of the Act – To the customised and integrated service provided by Business Process Outsourcing (BPO) Companies – Held: If such services in pith and substance amount to practice of law, the Act would be applicable – The manner in which they are styled may not be conclusive.
Disposing of the appeals, the Court
HELD: 1. Ethics of the legal profession apply not only when an advocate appears before the Court. The same also apply to regulate practice outside the Court. Adhering to such ethics is integral to the administration of justice. The professional standards laid down from time to time are required to be followed. Thus, practice of law includes litigation as well as non litigation. [Para 39] [270-A-B]
2. Practicing of law includes not only appearance in courts but also giving of opinion, drafting of instruments, participation in conferences involving legal discussion. These are parts of nonlitigation practice which is part of practice of law. Scheme in Chapter-IV of the Advocates Act makes it clear that advocates enrolled with the Bar Council alone are entitled to practice law, except as otherwise provided in any other law. All others can appear only with the permission of the court, authority or person before whom the proceedings are pending. Regulatory mechanism for conduct of advocates applies to non-litigation work also. The prohibition applicable to any person in India, other than advocate enrolled under the Advocates Act, certainly applies to any foreigner. The view of the Bombay High Court and Madras High Court to the effect that foreign law firms/companies or foreign lawyers cannot practice profession of law in India either in the litigation or in non-litigation side, is upheld. [Paras 40 and 44] [270-C-E; 271-E-F]
Pravin C. Shah versus K.A. Mohd. Ali (2001) 8 SCC
650 : [2001] 3 Suppl. SCR 675 ; Ex. Capt. Harish Uppal v. Union of India (2003) 2 SCC 45 : [2002] 5 Suppl. SCR 186 – relied on.
3. Visit of any foreign lawyer on fly in and fly out basis may amount to practice of law if it is on regular basis. A casual visit for giving advice may not be covered by the expression ‘practice’. Whether a particular visit is casual or frequent so as to amount to practice is a question of fact to be determined from situation to situation. 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 regarding foreign law or their own system of law and on diverse international legal issues or whether in substance he was doing practice which is prohibited can be determined by the Bar Council of India. However, the Bar Council of India or Union of India will be at liberty to make appropriate Rules in this regard including extending Code of Ethics being applicable even to such cases. It is not correct that the Advocates Act applies only if a person is practicing Indian law. It also cannot be said 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. The Advocates Act equally deals with companies or firms and individuals. If prohibition applies to an individual, it equally applies to group of individuals or juridical persons. [Paras 41 and 44] [270-F-G; 271-G-H]
4. The direction of Madras High Court that foreign lawyers cannot be debarred from coming to India to conduct arbitration proceedings in respect of disputes arising out of a contract relating to international commercial arbitration is also modified. There is no absolute right of the foreign lawyer to conduct arbitration proceedings in respect of disputes arising out of a contract relating to international commercial arbitration. If the Rules of Institutional Arbitration apply or the matter is covered by the provisions of the Arbitration Act, foreign lawyers may not be debarred from conducting arbitration proceedings arising out of international commercial arbitration in view of Sections 32 and
33 of the Advocates Act. 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. [Para 45] [272-B-D]
5. The Court also modifies the direction of the Madras High Court that the B.P.O. Companies providing wide range of customized and integrated services and functions to its customers like word processing, secretarial support, transcription services, proof reading services, travel desk support services, etc. do not come within the purview of the Advocates Act, 1961 or the Bar Council of India Rules. Mere label of such services cannot be treated as conclusive. If in pith and substance the services amount to practice of law, the provisions of the Advocates Act will apply and foreign law firms or foreign lawyers will not be allowed to do so. If their services do not directly or indirectly amount to practice of law, the Advocates Act may not apply. This is a matter which may have to be dealt with on case to case basis having regard to a fact situation.[Paras 43 and 46] [271-D-F]
Bar Council of Maharashtra v. M.V. Dabholkar
(1976) 2 SCC 291 : [1976] 2 SCR 48 – referred to.
Roel v. New York County Lawyers Association 3 N.Y. 2d 224 (1957) ; Appell v. Reiner 43 N.J. 313 (1964) ;
204 A.2d 146 ; Zauderer v. Office of Disciplinary Counsel 471 US 626 (1985) ; Shapero v. Kentucky Bar Association 486 US 466 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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