The author endorses the stand of the Swadeshi Brigade and argues that while Indian lawyers can easily tackle the stiff competition put up by the foreign lawyers, their sense of values, tradition and ethics will be compromised by the business-like approach of such lawyers.
Joining the intense debate over the opening of legal services on which the country’s legal fraternity is divided, Hon’ble Chief Justice of India Shri K. G. Balakrishnan has said foreign law firms may be allowed to practise in India on a reciprocal basis.
“They (foreign based Law firms) could only be allowed entry here if they do the same for us. It has to be on the basis of reciprocity”, Hon’ble Chief Justice told PTI in an interview. His Lordship said the debate over allowing foreign-based law firms was on for a long time but “until and unless other countries open the field for our lawyers, they cannot be given entry”.
According to his Lordship unilateral permission to allow foreign lawyers practise in India would not be a wise step. “How could you allow them when you are not permitted to work in their country?” the CJI questioned. Speaking on the issue, Union Law Minister Mr. H. R. Bhardwaj had said Indian lawyer would gain with the opening of the legal sector to foreign companies.
Federation is of the considered view that the foreign law firms may be allowed to practise in India only on reciprocal basis, subject to they following the code of ethics applicable to Indian lawyers. In India the legal profession is not allowed to advertise, Rule 36 of the Bar Council of India Rules made under the Advocates Act, 1961 lays down “An Advocate shall not solicit work or advertise, either directly or indirectly, whether by circulars advertisements, touts, personal communications, interview not warranted by personal relations, furnishing or inspiring newspaper comments or producing his photograph to be published in connection with cases, in which he has been engaged or concerned”. The Bar Council Code forbids an Advocate from indicating on his name plate or stationery that he is or has been President or Member of the Bar Council or that he has specialized in a particular type of work or that he is or has been holder of legal office. Whereas in USA, after the judgment of the Supreme Court in Bates vs. State of Bar of America (1977) 53 Lawyer Ed (2d) 810, the ban on advertisement stood removed. In USA it is like a business, they can advertise. We will find big hoardings of law firms in USA. In the stores you can pick the cards of lawyers. Some relaxation has been also made in UK, Canada, Australia. In America the lawyers can charge the contingent fee, whereas in our country it is prohibited. In Mr. G. Senior Advocate AIR 1954 SC 557 the court held that, it is highly reprehensible for an Advocate to stipulate, for or receive, a remuneration proportioned to the results of litigation or a claim whether in the form of a share in the subject matter, a percentage or otherwise. When we allow the foreign law firms to practise in India they will follow the practise followed in their country. It is a possibility that all multinationals opt for the services of big law firms considering their presence in other countries. When a huge foreign investment comes from a particular country, the investor may insist for appointment of a particular law firm of that country, which will not be in the interest of legal profession.
Justice Sethi J. in R. D. Saxena vs. Balram Prasad Sharma (2000) 7 SCC 264, (268) stated that “Professional obligations” of a lawyer are distinguished from the “business commitments followed by the trading community. The legal profession owes social obligations to the society in discharge of professional services to the litigants”.
In India, the legal profession still maintains the value and ethics when they render legal service. But if Government allows the foreign law firms to practise in India, the profession of law will became a business, which may not be in the interest of our country. Indian lawyers are not worried about the competition it is the tradition, and ethics of legal practise developed over several decades will be given a go by and when foreign law firms are allowed to practise in India, profession will become the business.
Members may share their views in the interest of legal profession of our country.
Dr. K. SHIVARAM
(Reproduced with permission from the AIFTP Journal – February 2009 issue)
Insisting on reciprocity for allowing foreign law firms in India is a justified stand. But one wonders at the perceived threat to tradition and ethics of legal practice especially since we’ve borowed and inherited the whole legal system, including the gowns and the way we address judges of the higher judiciary, from the British. We also needs to see if the Advocates Act is in tune with the times. Claiming expertise in a particular field of law is prohibited. Is it viable in today’s world of specialisation? Would you go to an electronics engineer to get your house constructed or would you go to a cardiologist to get a kidney transplant? Similarly, would an advocate practising in a criminal court do justice to an Income tax appeal or vice versa? Now, if all doctors simply said “Dr.” as a prefix to their name without proclaiming specialisation, where does a patient go for treatment? Similarly, is not a litigant exposed to uncertainty if he does not know if his lawyer is apt for his speciifc needs?
When we refer to “not furnishing or inspiring newspaper comments” or ‘not getting photographs published’ in the context of the stablished ethics of our brethern, do we not watch TV where not a single day passes without some lawyer or other making a statement on camera and do we not read newspapers carrying articles/comments of lawyers? I am not criticising these actions, I believe these are the norms of the day. Then why should our laws be not in tune with the times? Why should we always preach and pracice different things?
These are questions I leave with my learned brethern to consider.
It is a very good article. As long as the arguments of foreign lawers are keeping in view the interest of our country, its culture, integrity, law and its rich heritage, theres should not be any bar for their participation. After all decision will be taken by judges and not lawyers.
Dear sir definately we shuold not allow them untill unless their own country allow us to practice in their country