The Bar Council of India (BCI) has been pivotal in the debate on the entry of foreign law firms. The Solicitor general and newly elected BCI chairman Gopal Subramaniam tells Legally India about what has to happen before foreign lawyers can practice here.
Legally India (LI): What is your take on the entry of foreign lawyers in India? Gopal Subramaniam (GS): I think the issues are a little more complex and they may have a bearing on our democracy. Now, if say the entry of the foreign lawyers is necessary because of their expertise to deal with commercial matters, we have no less [expertise].
We are going to work on improving our skills and making sure that we are the best. And in fact what we have to do is really reclaim the business, which has even gone out of India, which we have lost out to other jurisdiction on account of adverse publicity of the Indian legal system.
And I say this very consciously that the Indian lawyer has to reclaim his business which has gone out. I think we need to first get it back. We need to be on a level playing field.
The second thing is the element of reciprocity - I think this is very important unless there is reciprocity there is no question of any further consideration.
LI: What do you mean by reciprocity? Many Indian lawyers are practicing abroad. GS: Indian lawyers do not practice there because they are Indian lawyers. They practice there when they qualify to practice there under their rules. Reciprocity means if I allow you to practice here then you allow me to practice there.
But having said that let us understand how many actually can go and establish a law office in New York or London? See the kind of expenses which are involved for setting up the office there.
So we must understand that there are many issues which will have to be internally debated. Therefore I must say that at this juncture our profession has to be first looked upon.
Our legal community will be looked upon as an important resource base. We have to preserve the Indian lawyer - if we don’t preserve the Indian lawyer, it can have telling implications on the democracy.
Anything else can be considered later but at this stage I think the task before us is reorganising ourselves as capable, efficient lawyers at all levels.
I am talking about every lawyer in the trial court as fellow brethren, I am talking at all levels in all places. You have to bring about uniformity. You have to bring about high quality.
LI: In simple words, you are not in favour of the entry of foreign lawyers? GS: At this stage I am not in favour of entering of foreign lawyers. This is without any doubt.
This interview is the second part of a longer interview with Subramaniam. The first part addressed legal education.
Photo from KIIT
Comments
Have you ever read the proviso to section 24(1)(a) or section 47(1) of the Advocates Act, the law that you as regulator as supposed to administer? Perhaps your rather strident tones would have been a little more dulcet because the Act has a rather different concept of reciprocity to the one you describe with considerable artistic licence. Please do refresh your memory and then we can see if reciprocity means "Indian lawyers do not practice there because they are Indian lawyers. They practice there when they qualify to practice there under their rules. Reciprocity means if I allow you to practice here then you allow me to practice there". [...]
Yours sincerely
An Indian lawyer who's happy to be abroad.
totally untrue and nonsense. there are a miniscule number of world-class lawyers in india and they charge a lot. name one indian lawyer who can argue a financial law case like barbara dohmann or an IP case like richard arnold (this from someone who has seen these barristers in action and has also seen the so-called expert indian lawyers GS speaks of)
2) "Reciprocity means if I allow you to practice here then you allow me to practice there."
Wrong again. Fox and mandal, singhjania etc have offices in london and their lawyers have LLBs from India. Yes, they had to give the QLTT. But you can always make foreigners give the Indian bar exam.
3) " We have to preserve the Indian lawyer - if we don’t preserve the Indian lawyer, it can have telling implications on the democracy."
Right. And that's why the bar came out in support of RK "ask for 5 crores not 2 crores" Anand. I'm proud of Indian democracy.
No wonder china (which allows foreign firms) is miles ahead of us. India is a fake free market economy that practices crony capitalism. the indian law firms remind me of the birlas: forcing everyone to but their crappy cars for 50 years. if foreign law firms are allowed in, AMSS and co will meet the same fate as hind motors.
The answer started of well, but by this line, legendary GS has spoken on the lines of the usual Bar Council people. Not expected. Of all people, he should know the differences in bandwidth and capabilities of Indian firms vis-à-vis foreign firms. And it is not just capabilities, but business dynamics and way of working which India needs to learn from NY / London firms. Clarification: I am not saying we don’t have great lawyers here … but the market is hardly “free”. And the sector can also do with a international style makeover.
On another count, protect the lawyers … that is great. But does that mean you have to block foreign firms? Why can’t they be allowed to operate with the condition that the management should be mixed and 80% retainers should be Indian lawyers? And we can also lock their revenues within India. When clients need them for advise, why not let them come here?
Also, it seems that many important people are letting their personal views count …. One wishes this goes to SC and a reasoned order is seen.
WHY DO LAWYERS NEED “PROTECTION” WHEN OTHER PROFESSIONALS DON’T? Simply because the sector isn’t corporatized and family holdings rule?
OK fine but practice what? does it mean that Indian lwayers will be able to practice Indian law in US/UK without having to qualfiy there or does he mean Indian lawyers practicing US/English laws without qualifying in those systems? Surely he is a learned senior counsel and I cant just imagine him meaning the latter! if indeed he means the latter then God alone help the great Indian legal machinery...
Some comments have clearly got the point correct when they say that dont allow foreign lawyers but allow foreign firms. But dear friends that is the biggest problem for the legal eagle families and their second in commands..
I know that GS used to come to London to appear (in some capacity, God knows whether he argued English laws or stuck to Indian laws only!) What was he doing in London?
u ignorant lot at CP!
[Both spellings seem to be in very quite common use - I can't figure out for the life of me which one is the correct one. Can anyone clarify authoritatively (without resorting to abuse?) Thanks. -Ed]
I would personally like to know his view on a few things from him:
Why don't you let lawyers from other countries (where they have a transfer/qualification exam) to sit in a similar exam in India? (For Bar council's sadistic satisfaction, make it tougher than other qualifying examinations.)
Why can't they open transactional practice to foreign but Indian qualified lawyers?
In absence of everything, why don't they let foreign law firms open offices in India to practice on foreign law?
Why are they making such a fuss about legal profession? When other professions are developing why do we lawyers cast ourself into a statue of Indian democracy? In what way liberalization of legal sector scars democracy?
Just read the news that India needs 2 trillion dollars to urbanize its cities and provide necessary benefits to everyone. I think India needs a lot more to urbanize its brains first.
it takes 10 odd years to decide this ?... isnt this itself a big question on maturity of our profession and on our capability to think and decide. Our political and professional leaders have this habit of "No Decision Policy" and "Keep Talking" policy, which brings us nowhere except endless presentations, interviews and discussions. Do something mates, dont sit on it.
What we have here is a classic case of protectionism, as well as a case of ignoring history and not learning from past mistakes. Isolation and protectionism in the economic world did not lead to progress - it led to mass corruption, solidification of vested interests, dynastic politics and a horrendous culture of resistance against change and progress. While the economy opened up by some miracle, and we are seeing the consequent boom in the past two decades, unfortunately the same lesson is not being applied to the bar. Competition is only going to help, and closing our borders will only lead to intensification of the evils that plague our field - inefficiency, incompetence, corruption and (of course) paying juniors terribly. (had to put that one in there :-) )
However, some Indian lawyers argue vehmently in favour of entry of foreign law firms without understanding that the long term implications. i can only say their minds are neo-colonized where they believe that nothing good will happen unless some foreigner comes in to do it for us.
STATUS CHECK- Young Indian corporate lawyers make much more than their counterparts in UK in terms of PPP. Now please do not compare with salaries in NY and Hong Kong for which Indian lawyers have to spend a bomb on LLM.
Apart from money what premium do you fix on working in a transparent and a professional set-up, enhancing skills and regular training? What is the discount on fighting daily battles with nepotism, favouratism and the family?
I would love to work in India. The only issue that deters me is that I don't want to be enslaved to a family run establishment, where I have to fight with nepotism everyday, where I have to sit in the office because the partner has decided to warm his seat longer than usual, where weekends and other commitments are not respected.
I wait for the day when like other professionals in India, lawyers can have a proper work-life balance. I recognize the whole concept is relative, but then it is relatively better abroad! It seems for the moment; the only option for Indian lawyers in self imposed exiles is an India desk closer home in Singapore or HK!
I can similarly accuse you of being a regressive Bajrang Dal swadeshi or a follower of Pramod Muthalik. You have to do better than name-calling. what "long term implications" are you talking about? The fact that the nepotistic, slave-driving banias who run Indian law firms will be put out of business. Thumbs up if that happens!
Bringing foreign law firms in at this stage will surely destroy the domestic, mostly family run law firms; just the way campa cola was flushed out from the indian aerated beverages market by pepsi and coca cola.
Consider this - policy wise and comparatively, bringing in foreign universities to teach law won't harm the indian industry as we have a good number of world class national law universities eg. Bangalore, Jodhpur, Kolkata , the list goes on... across the country and counting. So a Jindal global university, under the circumstances, which offers foreign degrees won't harm us. Infact, it could only help the industry evolve for the better.
In my opinion, we should firstly improve our lot.
The BCI could consider the following:
Firstly - Have a bar exam (a short yet effective online questionnaire) for first time applicants and for further extension of bar licenses. Questions shall depend upon areas of practice the candidate seeks to choose.
This will help promote specialization and professionalism. One could feel free to answer as many kinds of questionnaires for having a license open to multiple areas of practice.
To make this more effective, we can introduce a prequalification-that in order to give an exam for a particular area of law, one must have apprenticed/ interned with a lawyer/ firm specializing in that area of law/ department cumulatively for a period of say 6 months or
Complete a BCI recognized diploma degree with say 4 months work ex in that particular area of law.
Secondly - for litigation lawyers -
For first time application/ extension of a bar license -
we can have an examination testing the applicants comprehensive skills.
Followed by a viva, testing the applicants oratory skills.
A minimum score can be set for practice at the High Court and Supreme Court respectively.
Likewise an effective formula should be designed for designating and continuing seniority of an advocate. This will bring in transparency in designation of seniors.
All of this can be governed by a Special Purpose Vehicle that shall adhere to the highest standards comprising of academics, leading practitioners as elected by some system and headed by a Upendra Baxi like intellectual /personality.
The SPV shall report periodically to the BCI. The SPV can also have a website which acts like a knowledge pool, online platform for submission of feedback on its performance etc. All of this can easily be managed by a reasonably competent IT firm.
A survey must be conducted assessing the overall state of affairs of Indian legal professionals on certain strategic and relevant parameters. The survey could also factor data recorded by online / sms polls among advocates.
A consolidated report should then be prepared and sent initially to the BCI which can add further remarks and suggestions vis a vis policy matters in issue eg. Entry in India of foreign law firms.
This should then be forwarded to a Montek Singh Ahluwalia like personality for final decision making.
The above mentioned idea is sketchy needless to say poorly articulated! However, if conceptualized properly by the BCI in consultation with competent management experts such as TCS, is perfectly workable (wonder the planning commission can do it too)
Being unique in its own way, this could set a global precedent.
What say?
I have another suggestion for GS:
Since the BCI does have indirect access to all the address/ contact details of lawyers through the state bar councils, it could issue newsletters updating lawyers on the latest trends in law. A simple email / 3 page booklet couldn't cost much !
After all we do get loads of smses and letters from our State Bar Council representatives only during the elections!
ps. ed- it is spelt as gopal subramanium not iam !
visit http://lawmin.nic.in/la/lawofficers.htm
its gopal subramanium...as in "IUM" not "IAM"
I think #16 and #18 hit the proverbial nail on the head as to your question. The "excitement" stems from a deep resentment for the status quo - a stale legal sector with little progress, deep rooted nepotism, inefficiency, unprofessionalism and a completely outdated value system, and it further stems from an expectation that firms / law offices / lawyers having more progressive, modern and professional values would only better the playing field.
Is it not pathetic that, even in today's date, if you send your resume to a law firm without any (high-level) contacts, your resume is virtually guaranteed to be ignored regardless of your merit? And then of course is this draconian notion that people join the legal sector only to become slaves working 16 hour days, 7 days a week. And the supremely retarded affinity towards paying juniors in litigation a pittance, because "experience" is payment enough? (because of course in other fields where you get experience, you don't get paid, right?).
It a simmering anger that most young lawyers are powerless to change, and more often than being able to change, results in them changing careers altogether. And our senior in their lofty castles still stick to british era values and beliefs, little realizing that their very values are the core cause of the vast majority of lawyers entering litigation today being of sub-standard aptitude.
And (rightly or wrongly - time will tell) a lot of people believe that getting competition by way of world class firms and lawyers will open up the sector to have more healthy progressive values, (which in turn of course will have a significant effect in improving the overall standards in the legal sector litigation or otherwise). It's a simple correlation between world class values bringing world class standards.
Hope that answers your question.
visit http://lawmin.nic.in/la/lawofficers.htm
Yes, you're the only one.
#24 is spot on. we still have a corrupt, degenerate, nehruvian licence raj system in the legal sector when all other sectors have abolished it.
Zia Mody has supported foreign law firms coming in while Cyril Shroff has opposed it http://thefirm.moneycontrol.com/news_details.php?autono=432690
To me, the contrasting attitudes of Zia and Cyril just about sums up the controversy. Zia is a dynamic, Cambridge-educated lawyer. She has worked abroad and runs a young, modern top class firm which is not a family concern.
This is a real issue.It must be tackled promptly and more importantly in an effective manner.
Let us do our due diligence, consider the best interests of all stakeholders and for once design a smart India-specific policy.
Blind liberalism will reap instant benefits but may not be the best long term solution.
That is exactly what GS is saying.
Arjun
And for some reason even in this day we try to portray to ourselves as well as others that we are a blessed profession touched by the hands of the gods themselves, perfect in the way it is.
Nobody is even talking about mindlessly implementing some other policy from abroad. We are talking about an India-specific solution. And let it not be glossed over that the legal field is in some serious trouble. The vast majority of lawyers entering the field today are either incompetent, inept, badly trained, corrupt or more often a mix of all these things. Combined with that the penchant for paying juniors a pittance has almost ensured that no one (but a few wayward people who don't know better) with actual merit, talent and aptitude will enter the field.
#28- Kindly provide us with a sensible solution. Your line of thought and expression take us nowhere.
"...And let it not be glossed over that the legal field is in some serious trouble. The vast majority of lawyers entering the field today are either incompetent, inept, badly trained, corrupt or more often a mix of all these things. Combined with that the penchant for paying juniors a pittance has almost ensured that no one (but a few wayward people who don't know better) with actual merit, talent and aptitude will enter the field."
The above-mentioned statements are unqualified and needless to say, reflection of a "popularist perception". Most of all, your comment does not yield a constructive solution/idea.
Allowing foreign law firms to operate in India and improving the overall standard of legal practice ARE SERIOUS ISSUES WHICH HAVE BEEN ALLOWED TO DETERIORATE. I AGREE.
These issues require to be/ have to be addressed constructively (and preferably in a consultative manner, using platforms such as this).
A blind defense for the above-mentioned, premature,mostly anti-institution views really take us nowhere.
If you have a better idea,please share it, substantiate it.
Least comments # 27 +# 20 have tried/ bothered to conceptualize a solution/ reform path without ruling out eventual entry of foreign law firms blindly.
This is a time for us to innovate. More importantly a time for some to re-mould for the better.
So lets THINK, support constructive thought and evolve upon something that WORKS !
Put in on yourself and think deep. Inspire thought.
Let us believe that change is not impossible.
Put it in on yourself and think deep. Inspire thought.
As for the rest of your post, while it's great that your feel that people should not just express their opinion unless they are offering a comprehensive, detailed constructive solution, you my friend yourself offer none. By your very own standards, your comment itself "takes us nowhere." People in glass houses and all that....
Other than that, I would say that it appears that there is no great reason for protectionism offered by the school of thought that is against allowing foreign law firms / lawyers. And I think most people are misreading the various posts here for opening up, and are assuming that everyone is talking about some unregulated, blind, poorly-conceived scheme.
The debate happening here is on a more general level, and not about what specific act, rules or regulations that would have to be passed. Compare it to our economic liberalization - that has happened in stages as well, and with a plethora of rules and regulations monitoring it. I don't think ANYONE is talking about anything else. Most people's sentiment is that it is not in the national interest or in the interest of our field to any longer support a complete blind ban on foreign players.
Hence your suggestion of having a monopolistic press note is lame and pure waste of space.
The rest of your suggestions need clarity !
BTW (on a more serious note): Will giving you suggestions help? If yes I am all for it, please send me your email ID. I will let you know how a similar scenario played out during the liberalisation of other sectors of Indian economy and how artificial barriers were worse than the previous monopolistic License Raj.
@ 19 - Yo! The baniyas need to go.
@ All - why are we not discussing the issue of pay in litigation. Bar Council should look into that, right? 10K a month paid to juniors by senior counsels is hardly anything but a pittance.
Kian may be you can do a feature on this.