BCI Petition in Foreign Law Firm Case Grounds and Prayers

Bar & Bench has obtained a copy of the Special Leave Petition filed by the Bar Council of India (BCI) before the Supreme Court of India against the decision of the Madras High Court in AK Balaji v. Union of India dated February 21, 2012..Bar & Bench has obtained a copy of the Special Leave Petition filed by the Bar Council of India (BCI) before the Supreme Court of India against the decision of the Madras High Court in AK Balaji v. Union of India dated February 21, 2012. Bar & Bench had on April 23, 2012 reported that BCI has approached the Supreme Court against this decision of the Madras High Court..The Petition has been filed on the ground that the Madras High Court has erred in not appreciating the fact that the issues relating to practice of law by foreign lawyers and foreign law firms were no longer res-integra, as the same were exhaustively dealt by the Bombay High Court in its judgment dated December 16, 2009 in the case (Lawyers Collective v. Bar Council of India). The Petition further states that the Bombay High Court judgment has neither been challenged nor appealed before the Supreme Court and therefore, had attained finality..The Petition states that the mere perusal of the Memorandum of the writ petition filed in the Madras High Court, makes it clear that the issues raised in the petition were already dealt with by the Bombay High Court..One of the primary grounds taken in the Petition is that the Madras High Court has committed a grave error in taking a contradictory view. On the one hand, the Madras High Court held that foreign law firms or foreign lawyers cannot practice the profession of law in India either on the litigation or non-litigation side, unless they fulfill the requirement of the Advocates Act, 1961(Act) and the Bar Council of India Rules (Rules). However, on the other hand, the High Court held that there is no bar either in the Act or Rules for the foreign firms to visit India for a temporary period on a “fly in and fly out” basis, for the purpose of giving legal advise to their clients in India regarding foreign law or their own system of law. The High Court went on to opine that the practice of law includes giving of legal advice..The Petitioner alleges that the Madras High Court has not considered the 2009 judgment of the Bombay High Court in the Lawyers Collective case, which held that the practice of profession of law is not limited to conducting the matters in the court, but includes non-litigious matters like that of chamber practice, giving opinion on legal issues, participating in seminars and legal conferences also come under the purview of the Act..The Petitioner further alleges that the Madras High Court has failed to appreciate that the Petitioner and State Bar Councils have a statutory duty to regulate the professional conduct and discipline of the legal profession in India and regulates that it is necessary for any lawyer practicing in India to enroll under the Act. The Act creates a bar on the foreign lawyers who are not enrolled under the Act from practicing in India, which is the view taken by Bombay High Court..The Petition also states that the Madras High Court failed to appreciate the fact that foreign lawyers not enrolled under the Act are not entitled to practice in India in view of the fact that such foreign advocates do not satisfy the requirements laid down under Section 24 of the Act..The Petition further states that Madras High Court also failed to consider the fact that there is no express provision in the Arbitration and Conciliation Act, which permits foreign lawyers to practice the profession of law in India. Hence the observation of the Madras High Court that barring foreign lawyers from practicing would go against the aim and objective of the International Commercial Arbitration, is contrary to the law of the land. The Petitioner also argues that the High Court failed to take into consideration that the law of the land provides for enrollment of the foreign lawyers only on the basis of reciprocity..The Petition also seeks the interim relief of staying the judgment of the Madras High Court. The BCI argues that unless a stay order is granted, there will be complications in the “uniformity” of regulating the legal profession in India. Furthermore, the BCI states that without a stay order, there are increased chances of foreign law firms setting up offices in India, further jeopardizing the functioning of the regulatory authority..Amongst the long list of the Respondents are AK Balaji (the Petitioner in the Madras High Court), the Bar Council of Tamil Nadu, and 31 foreign law firms as well as LPO, Integreon. The Law Ministry, Home Ministry, Finance Ministry, External Affairs Ministry, Income Tax Department and the RBI have also been arrayed as Respondents..The matter will most likely come up for hearing in the first week of July, once the Supreme Court’s summer vacation ends.