We Are Not Opposed to Foreign Law Firms, But Advocates Act Needs to be Amended: Lalit Bhasin
A towering legal luminary, Lalit Bhasin, helms one of the largest law firms in north India, Bhasin & Co. In an exclusive interview with BW Businessworld Chairman and Editor-in-Chief Annurag Batra, he explains how the Indian legal ecosystem has evolved over the years, incrementally moving towards opening the doors to foreign law firms.
Excerpts:
How did the idea of the Society of Indian Law Firms (SILF) come about?
The idea came in the mid-1990s when liberalisation happened. It all started with law firms. By the year 1999 we had a galaxy of good emerging law firms. At that point of time a threat came which was there from 1994, when I was the general secretary of the Bar Association of India and Fali Sam Nariman was the president, when for the first time the government brought in the move to bring in foreign lawyers. This was opposed by the Bar Association because we knew that the Indian legal profession is not yet ready to face that competition.
In 1999, some of the managing partners of law firms and I had a meeting and the idea of setting up such a society was mooted. In the world, there is no organisation which has only law firms as members. They asked me to preside over this institution. So this was inaugurated in the year 2000 by the president of the International Bar Association.
Arun Jaitley addressed us and said that we will have full safeguards if foreign lawyers come to India. But, the legal profession should not oppose it. But we kept on opposing it till 2014. When I noticed that the Society of Indian Law Firms had nearly 80 firms on its rolls I knew that now we can face the challenge which can come because we are second to none in terms of resources, technology, and competence. In 2014, a meeting convened by the nodal ministry (commerce) asked our views. So I made a presentation on behalf of the Society of Indian Law Firms, putting on record that we do not oppose the entry of the foreign law firms and lawyers into India because we can face the challenge. And surprisingly the ministry of commerce also made a representation on the same lines to allow them in, in a staggered way like the Singapore model.
Today in Singapore, foreign law firms can practice Singapore law but there are certain areas which are prohibited for them such as defence, economy, and sovereign functions of the government. But that is a model which is quite successful. 
What can be better in terms of implementation? How do you make sure that it benefits the Indian system of jurisprudence?
It's a very strange development because last month the Commerce Secretary had again convened a meeting where I was invited as the president of SILF and the Bar Council of India was also invited to find out whether we oppose the entry of foreign lawyers and how we can upgrade and facilitate the Indian legal profession and law firms to compete favourably with them. Now that was the last thing and we said that ‘you have full support’ and they said, ‘we'll have more meetings’.
Can you please tell us what happened at the SILF meeting conducted on 20 March?
What everyone felt was firstly, that we want rules and regulations that are not one-sided. You may allow foreign lawyers to come but at the same time, you have to internally liberalise the Indian legal profession.
We cannot even have our proper websites. They call it advertising or publicity. We don't want what is happening in the United States 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 we all 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. What we felt was that it was done in a grave hurry for the reason that possibly they did not understand the implications of these Supreme Court judgments which came in the year 2018, where the appellant was BCI challenging the Madras High Court judgment in Balaji's case.
In that judgment 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.
If a British firm comes here, sets up office and starts advising on British law, that is not permissible. Because you are setting up a place for practice of 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. The Society of Indian Law Firms will not challenge it as we have put it on record there.
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 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, 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.
What Should be done to ensure that this announcement by the 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. The first thing is that we must try to have a dialogue with the regulator, which 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 firms. But the first part of your question is whether it is a done deal. Definitely, as far as the Bar Council of India is concerned, but can you anticipate that no one will go to court, saying that this is against the Supreme Court judgment? Therefore, it (the new rules) are subject to that.
How do you see the move playing out in the days ahead?
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 in 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. 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 Indian firms will have a cultural advantage over incoming foreign firms?
They will definitely have an advantage because we know that basically, it is all about 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 liberalisation in law firms marketing themselves?
There is an uneven playing field. For instance, 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 in the legal field because I believe in India, we still consider this a profession. Speaking as president of SILF, I am totally opposed to such practices.
