By Dr. K. Shivaram
Ajay R. Singh | Advocates
New Page 2
25 Practice of Law – Foreign law firms are not eligible to
open liaison offices or to practice law in India. Even giving an opinion on a
legal matter amounts to “practise of law”: Advocates Act
Lawyers Collective vs. Bar Council
(Bombay High Court)
(itatonline.org)
White & Case, a foreign law firm, was granted permission by
the RBI, u/s 29 of FERA, to open a liaison office in India. A PIL was filed
contending that such permission was in contravention of S. 29 of FERA as well as
S. 29 of the Advocates Act. Upholding the challenge, the Hon’ble High Court held
as hereunder:
(i) The liaison offices opened by the foreign law firm to
act as a coordination and communications channel between the head office/
branch offices and its clients, in and outside India, related to providing
legal services to the clients.
Similarly, the
liaison activity of providing “office support services for lawyers of those
offices working in India on India related matters” and drafting documents,
reviewing and providing comments on documents, conducting negotiations and
advising clients on international standards and customary practices relating
to the client’s transaction etc. was nothing but the practice of the
profession of law in non litigious matters;
(ii) U/s 29 of FERA, the RBI has power to grant permission
to carry on “activities of a trading, commercial or industrial nature”. There
is a fundamental distinction between professional activity and the activity of
a commercial character. As the liaison activities of foreign law firms relate
to the profession of law, no permission could be granted to the foreign law
firm under Section 29 of FERA;
(iii) S. 29 of the Advocates Act which provides that there
shall “be only one class of persons entitled to practice the profession of
law, namely, advocates”, applies not only to persons practicing as advocates
before any court/authority in litigious matters, but also to persons
practicing in non litigious matters as well. Practising the profession of law
involves a larger concept while practising before the courts is only a part of
that concept.
(iv) The argument of the UOI that if it is held the
Advocates Act applies to persons practising in non-litigious matters, then no
bureaucrat would be able to draft or give any opinion in non-litigious matters
without being enrolled as an advocate is without merit because there is a
distinction between a bureaucrat drafting or giving opinion during the course
of his employment and a law firm or an advocate drafting or giving opinion to
clients on a professional basis. Further, while the bureaucrat is answerable
to his superiors, a law firm or an individual engaged in non litigious matters
is answerable to none. To avoid such anomaly, the Advocates Act has been
enacted so as to cover all persons practising the profession of law, be it in
litigious matters or in non-litigious matters.
Consequently, the RBI was not justified in granting permission to the foreign
law firms to open liaison offices in India u/s 29 of FERA. Further, the foreign
law firms were not entitled to practise in non litigious matters in India
without following the provisions of the Advocates Act.
