COMPILATION OF SUBMISSIONS made by the Indian Corporate Counsel Association INSIDE 1. Cover Letter dated 17.08.2016 addressed and presented to the Hon’ble Law Secretary, Mr. Suresh Chandra at his office along with the following two documents. 2. Comments on the BCI Draft Rules for Registration & Regulation of Foreign Lawyers in India, 2016 3. Draft Bill for the Regulation of Foreign Practitioners – Foreign Legal Practitioners’ (Regulation of Practice) Bill, 2016 I counseme Dated: 17.03.2016 Sh Surcsh Chandra HL-Lri'ctmr'. I )i-l?nl nil I.i'pj? [ii-[44? 35.: Ill?iil'l'ql filmm'i thunIL Tit-u Iliun'liicf?ilr', Sui}: SlliHIlil-H-iinll nf tin: draft Furcign {Regularirm of Fractich Bill Wi- Indian {Inrpuralc isggcigig LIQCAL m: an :mmrimiun nt' in Imum- Ial'ixicrh ?uricng In imrh public and pru?ntc scc'rm'ra. is 'rliHi Hl' "win ?:Lcitic 'ilimuci- which ii :l {Iftihfpul'ill?c? cummrl E1550Ci21l'i?l'l? hid-:nu-Hiu? Mnlsii?in and 51'] Laniin. NIH i5 :1 imicluc I-irmwiccigc Lind thrle which :iimra I'c- rcigclhui' {inc-nch and 1.31.1 from lmimn cni'pm'nu- Ilnn?lnh- n:an ilml 1H mjunnwcil m1 Imln I.cg:t Summit Ul?icning Hf lndian rm Him 343 Z?l5 in Limdnn. 1c incur H'i- rlic HLII'nmii nth; cl?rl'ji :ii' I m'iign 13w; I'il'l'l'lF in .?HillihL? in imiir. T'iih?li'ilt'} ul- [av-.1 ni thInant?cc, :ani Lsm' Huck-r} Hi Iiilginnci "i?i?uics Ii1c {"I'L'l'll and :11:m_c hauling; It'llc'l?1?lfll'iill'lfll L;th l'ij'mx :Lmi LiL?iCIL?f-Hi?l?l mi 3H uric-mich Hilmmu. In? ?rm-cum} .?ilr. hinlimrril and Mr. lehnnahn Inim Hccn-r?rfx. Iiicpm'imcm nltunLiL-Ll [I'm 1.1mdnn uccnr win-Ir :1 was mndu [m hL'imlr'ni'i incl. nf' inciin TU rail-w 5115p: in" Imimn [.cg?l lift?: 1'5 11ml thm'm?cr rm If Innt'm'cnci' India fur Indian Litgal and pm?t??innal?" [111 March If? :11 ?xi-u Hi-llu with l'ht' :incl (ii-1.311.. i-n-n: hi- .hlsn?nlm. "i Imd in rcL-m. Ifif??u. hm] :ilxrz bruinng {an hm'rlc 1n ch'icca '1 Primcr" This cnll'} rnt' fan'c'lgn Indian Inga racclm' i5 ?c't LI 1'c1Iiin. I111: argue and guidancc Hf .?xlinistrj. Hi i .iiw ii: _ILIn'licc and Hit; Ministry ni 3111' inclisi haw: cisil?cc'. LEE, L'Iwi and inatmiin and 11:11.1: signed Mic-M's with thcil' ICCA Secretariat: CPL Media Pvt. Ltd. Nimrnuddin East, New Delhi-110013 T:91?l141656594 enunter part?? there. llnwerer, much l'li-IH taken place thereafter. Legal l5 keen tn partietpate in Indian Legal Seetnr. It is in tact tn India?s interest In take a quiet: decision in thia regard art ripening Ur legal aeetur wull help tn attract mnte l-"llJl l?ttl India and will facilitate 0F Uttng Business FINES partimtlat'lt' in [?rnjeeta- 'l'hia will gt: a lung wait. in lltdia'a in the llaae lluaineaa index, W?ith tl 1view In expedite the prneerca and Faeillrate tliaettaairtna it ill] the the (NILE), has taken tn draft a Bill ?F_nrejgn Legal in 1with ita ht?tnwledge partner the Raaieh {irnup and hat-int; taken into :teettunt the diacttaaittne held at the event and the lndia event with a number nF praelieit?tg adrtteatea, practirinnera, law ?rn?ta and in httuae enunael. have alan held disettaainna with ?irt-i;an lawyer-5. tin the matter1 in better their enitaideratinna artrl reqttirement?. W?itlt a multitude nt? npinitina "the manner Inf their entry1 thia ltill hat-t been drafted with the time In the atrateg} It) be (Jitieetit til the draft hill lri threefnld: Ll It: pmn?tnte the [irrigtetwa {if the Indian legal aratem 3] In after the interet-tta lntlian legal pt'aetit'innera and 3) he fair and equitahle in treatment tn? rll1'l'ifgt'l rtltee they are ailnwetl practice ttur iutiatlietittn. ltl'i'l' herewith the draft liill. {Ur and further ennaitlerantm hi the {itfn'etnh?tent {if lndia. [)ttr enmmenta ran the Draft Rules prepared ht' l'iliil are alt-ctr eneltiaed. a will he happy render any Further naaistanee which may he required the of Law tn this regard. Ynurh . (Founder President) M: tit-H [it ?4163 ab: ahm'e . . COMMENTS ON THE BCI DRAFT RULES FOR REGISTRATION & REGULATION OF FOREIGN LAWYERS IN INDIA, 2016 We would like to thank the Ministry of Law and Justice for inviting us to comment on the recent rules proposed by the Bar Council of India for the regulation of Foreign Lawyers in India. In the following note, we have identified the various ‘Key Concepts’ that are relevant for this discussion. We have also mentioned the manner in which they have been covered by the BCI rules and thereafter given our observations on how the same should be tackled. We hope that this note will help streamline the various topics of discussion in a brief and concise manner and also help prioritize the points of discussion. KEY CONCEPTS REMARKS As per the BCI Draft, the BCI has sought to be the sole body responsible for ensuring reciprocity. The matter of reciprocity Reciprocity comes under various ministries of the Government of India and BCI Draft [6 (A), 12] cannot be the sole responsibility of the BCI. It includes aspects of Foreign Policy, Trade and Commerce, Services Promotion, GATS, etc. which require Ministerial-level decision making. The BCI Draft does not make note of instances where foreign law Reciprocity in firms have multiple offices across jurisdictions. Compulsory terms of Foreign registration of all Foreign Practitioners working with Foreign Law Law Firms having Firms is essential to ensure that Foreign Law Firms with offices in offices in multiple multiple jurisdictions can only depute Foreign Practitioners from jurisdictions countries that stand the test of reciprocity. In the absence of BCI Draft [Not expressly covering this scenario it would very difficult to covered] administer and require reciprocity from each and every country in which the Foreign Law Firm operates. This is one of the most critical aspects for ensuring that Indian Legal Practitioners can prepare for changes that will directly Phased entry impact their work and livelihood. As per the BCI Draft, foreign BCI Draft [Not law firms may have 100% ownership over their practices in India covered] and employ Indian advocates from day 1 itself. A phased entry needs to be worked upon, including for ownership rights, as is done for FDI in other sectors. Restriction on While, restrictions have been imposed by the BCI Draft, however, practice of Indian there does not seem to be any clarity vis-à-vis practice by Indian Law advocates working with foreign firms. Moreover, non-litigious BCI Draft [8] matters need to be defined to remove all doubts. The current BCI Draft allows for 100% ownership by foreign law Restriction on firms of their practice/firm in India. Allowing for 100% 100% ownership ownership, as has been done under section 9 of the BCI Draft, BCI Draft [Not will not just have a ‘Big4’ effect on existing Indian practitioners, covered] but also on the ability of Indian citizens and the Government to 1 Page COMMENTS ON THE BCI DRAFT RULES FOR REGISTRATION & REGULATION OF FOREIGN LAWYERS IN INDIA, 2016 KEY CONCEPTS Process for promulgating the changes in the law BCI Draft [Preliminary Note] Dedicated regulatory board BCI Draft [Not covered] Dedicated Secretariat BCI Draft [Not covered] Regulating Fly-in Fly-out BCI Draft [Deregulated under 3 (1)] Separate regulation for foreign lawyers and foreign law firms BCI Draft [Not covered] REMARKS procure quality unbiased advice on international matters. 100% ownership may also have a negative impact on the Indian Corporate Sector due to an unavoidable increase in legal fees. The regulation of foreign practitioners may not be possible through the powers granted by the Advocates Act to the Bar Council of India (BCI) and therefore may require a separate legislation. It is the prevalent position that the BCI has been granted the authority to frame rules for the regulation of Advocates, and Advocates are the only class of persons permitted to practice law in India. Accordingly, the BCI also has the power to admit foreign lawyers as Advocates. However, foreign practitioners should be treated as a separate class of persons as bringing them under the definition of Advocates shall lead to unwarranted complications. Furthermore, the practice of ‘Indian Law’ categorically remains only with Advocates. Therefore, regulating foreign lawyers through a separate regulatory body would be complimentary to both the Advocates Act and the powers of the BCI as granted under the same Act. As this issue is concerned both with the regulation of foreign nationals as well as dealing with the governments of different countries on different issues, including reciprocity, cross-border liability, work permits etc., it should require the involvement of the Government through its identified Ministries and not just the BCI as is suggested in section 12 of the BCI Draft. It is critical to have a professionally managed secretariat or facilitation centre to assist the regulatory body in ensuring compliance with the various regulations as well as to ensure that all the responsibilities of the regulatory body are undertaken in a timely and efficient manner. The BCI Draft deregulates Fly-in Fly-out, which makes it very difficult for Indian citizens to seek redressal and pinpoint liability. Fly-in Fly-out must also be regulated in some manner to ensure protection for our citizens from professional negligence of the firms operating through that route. Given the current dynamics of the legal profession and differences in the mode of practice between independent lawyers and law firms, it is very important to provide for separate regulations for both categories. The BCI Draft currently only provides for a separate fee structure. 2 Page COMMENTS ON THE BCI DRAFT RULES FOR REGISTRATION & REGULATION OF FOREIGN LAWYERS IN INDIA, 2016 KEY CONCEPTS Registration documentation BCI Draft [4 (1)] Post-entry Disclosure mechanism BCI Draft [Not covered] Registration and renewal fee BCI Draft [4 (1), 6 (D)] Professional liability BCI Draft [Not covered] Separate obligations and code of conduct BCI Draft [Not covered] No adverse restrictions on Indian Advocates BCI Draft [Unclear] Restriction on MDPs BCI Draft [Allowed only for Foreign Law Firms under 2 (iii)] REMARKS Some of the documentation required under the BCI Draft is either such that can be procured for each country separately and some is such which will require the government to set up a dedicated committee to provide the same. This is also a reason to create a separate regulatory board which combines experts from the BCI, other bodies and the Government. This will allow for more efficient functioning and reduce duplicity of work. Given the sensitivity of legal services, it is important to consistently regulate foreign lawyers. This would include periodic disclosures by them (financial and otherwise), aimed at ensuring that they are keeping within the prescribed boundaries. The BCI Draft elaborates on the fee payable for registration and renewals. The basis of arriving at this fee has not been made clear. Accordingly, it may be more appropriate for the fee to be set by the separate regulatory body after duly assessing the various factors that are essential for this purpose. These would include the costs of setting up and running the regulatory body, amongst other factors. Given the jurisdictional issues that can arise based on a foreign national conducting business on Indian soil, it is prudent to preempt a method for ensuring the execution of any fines and penalties imposed upon foreign practitioners by requiring them to submit details of their professional liability insurance. This is important as the nature of work of foreign lawyers is different than that of Advocates and thus requires a revised code of conduct and obligations. While, in principle most of the code will be similar, not amending the same will lead to difficulties in applying it on foreign lawyers. The BCI Draft, by section 9 (ii), may be seeking to impose a restriction on Indian Advocates from practicing Indian Law. Such a restriction would be difficult to uphold in court. If that is not the intention of the BCI Draft, then it gives Foreign Law Firms unrestricted rights in India, which will inevitably be highly detrimental to the existing practices of Indian lawyers and firms. Foreign Multi-Disciplinary Practices (MDPs) should be expressly disallowed till the time Indian lawyers are not given similar permissions. The result of the BCI Draft will be that E&Y Legal and others global MDPs will now be able to operate in India. 3 Page COMMENTS ON THE BCI DRAFT RULES FOR REGISTRATION & REGULATION OF FOREIGN LAWYERS IN INDIA, 2016 KEY CONCEPTS Restriction on non-lawyer investments BCI Draft [Allowed only for FLF’s under 2 (iii)] Clarification on LLP structure BCI Draft [Allowed only for FLF’s under 2 (iii)] Advertising guidelines BCI Draft [Not covered] Promotion of CLE BCI Draft [Not covered] Clarification for Arbitrations BCI Draft REMARKS The BCI Draft permits companies to come under the definition of a foreign lawyer, without making an exception for non-lawyer investments. This must be categorically disallowed till the time Indian lawyers are not given similar permissions. The BCI Draft allows foreign law firms that are LLPs to operate in India. Furthermore, 9 (iv) of the BCI Draft will mandatorily require an LLP structure as foreign nationals cannot enter into partnerships under the Partnership Act. Accordingly, Indian lawyers must also be permitted to form LLPs with other advocates. This is an aspect that must mandatorily be dealt with, especially given the fact that we live in a digital age, where the permissions that a foreign firm has with respect to advertising transcends boundaries. Indian Lawyers will be at a major disadvantage without similar permissions. It is imperative to promote the development of Indian lawyers, for them to not only match, but also exceed foreign lawyers. Knowledge transfer should have to be one of the key requirements of a successful liberalization process. Currently, the BCI Draft is unclear as to the extent of representation that a Foreign lawyer may provide in an International Arbitration situated in India. It should be made clear that the foreign lawyers may represent their clients in international arbitrations only during and post the initiation of the arbitration proceedings. This would pre-empt opening up contract advisory/review/diligence and other similar services which may use the existence of an international arbitration clause in a contract to offer the services mentioned above. Clarity is also needed vis-à-vis the interpretation of Indian Law in an International Arbitration. In addition to this note, we have also taken the liberty of preparing a draft bill that addresses all of these aspects and the same has been placed before the Ministry. 4 Page Foreign Legal Practitioners’ (Regulation of Practice) Bill, 2016 Presented by: Drafted by: Drafted on 16th May, 2016 Revised on 18th July, 2016 This document is a work in progress document for discussion purposes only. INTRODUCTION The entry of foreign lawyers into the Indian legal sector is set to become a reality, under the aegis and guidance of the Ministry of Law & Justice and the Ministry of Commerce. With a multitude of opinions on the manner of their entry, this Bill has been drafted with a view to encourage a healthy discussion on the strategy to be followed. Please note that all footnotes in this draft have been added in order to assist the reader in understanding the reasoning behind the provisions of the Bill and are not meant to be a part of the official draft. During the reading of this Bill, what should be kept in mind is that our purpose is not unilateral, but threefold: 1) to promote the progress of the Indian legal system 2) to protect the interests of Indian legal practitioners and 3) to be fair and equitable in our treatment of foreign practitioners, once they are allowed to practice within the jurisdiction of India. This Bill has been drafted by The RASICH Group under the watchful and experienced guidance of the Indian Corporate Counsel Association (ICCA), and having taken into account the discussions held with a number of practicing advocates, practitioners within law firms and in-house counsels. We have also held discussions with foreign lawyers on the matter, in order to better understand their considerations and requirements. This Bill also keeps in mind that the regulation of foreign practitioners may not be possible through the powers granted by the Advocates Act to the Bar Council of India (BCI) and therefore shall require a separate legislation. It is the prevalent position that the BCI has been granted the authority to frame rules for the regulation of Advocates, and Advocates are the only class of persons permitted to practice law in India. Accordingly, the BCI also has the power to admit foreign lawyers as Advocates. However, Foreign practitioners, as defined in this Bill, should be treated as a separate class of persons as bringing them under the definition of Advocates shall lead to unwarranted complications. Furthermore, the practice of ‘Indian Law’ categorically remains with Advocates. Therefore, this Bill is complimentary to both the Advocates Act and the powers of the BCI as granted under the same Act. In the event the stakeholders are of the opinion that a separate regulatory body needs to be formed to replace or restructure the BCI, the salient features of the Bill shall remain the same, however certain chapters may require modifications. We look forward to receiving your comments and suggestions on the Bill. 2 Foreign Legal Practitioners’ (Regulation of Practice) Bill, 2016 PREAMBLE An Act to regulate the practice of law by foreign-qualified legal practitioners within the territory of India, in collaboration with Advocates. Be it enacted by the Parliament in the sixty sixth year of the Republic of India as follows: CHAPTER I PRELIMINARY 1. Short title, extent and commencement. – (1) This Act may be called the Foreign Practitioners Act, 2016. (2) It extends to the whole of India, except the State of Jammu & Kashmir. (3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. Provided that the Central Government shall appoint such date within six months from the date on which the Foreign Practitioners Act, 2016 receives the assent of the President.1 2. Application of the Act. – (1) The provisions of this Act shall apply to qualified legal professionals registered to practice in jurisdictions of countries with which India has entered into reciprocal arrangements of trade in legal services or in countries in whose jurisdiction Indian legal practitioners are permitted to practice law within the parameters set by such foreign jurisdictions.2 (2) The foreign qualified legal professionals of countries in whose jurisdiction Indian practitioners are permitted to practice law is mentioned in Schedule 1. (3) The Central Government from time to time may notify the countries with whom they have entered into reciprocal arrangements, in terms of sub-section (1) of this section and the foreign qualified legal professionals of only those countries shall be permitted to practice law in India. (4) The countries notified by the Central Government under sub-section (3) of this section would become part of Schedule 1 to this Act by virtue of said notification. 3. Definitions – in this Act, unless the context otherwise requires – (1) the definitions provided in the Advocates Act, 1961 shall be applicable. (2) ‘Foreign national’ shall mean any person who is not a citizen of India. (3) ‘Foreign lawyer’ shall mean a lawyer who is only qualified to practice law in a jurisdiction or jurisdictions other than India, irrespective of their nationality.3 Such a provision will allow the Act to come into force at the earliest. This shall apply to existing nations where Indian nationals are permitted to practice law and where Indian law firms have already established offices, such as Singapore, Dubai, Japan, parts of the US, the UK, etc. 3 This provision would also apply to Indian citizens who have qualified to practice in a foreign jurisdiction, however do not have Indian legal qualification. 1 2 3 (4) 'Foreign Practitioner’ subject to the provisions of this Act, shall mean a Foreign Qualified Independent Legal Practitioner or; any foreign lawyer as part of a Foreign Law Firm registered to practice in India. (5) ‘Foreign Qualified Independent Legal Practitioner’ shall mean a foreign lawyer, who is registered to practice law in India under the provisions of this Act, and is not a part of a Foreign Law Firm. (6) ‘Foreign Law Firm’ shall mean a law firm operating outside the jurisdiction of India, either by virtue of having common partners, a financial link, or commonality in the name used to carry on the practice of law in that jurisdiction. (7) ‘Foreign Law Firm Established in India’ shall mean a limited liability partnership firm registered under the Limited Liability Partnership Act, 20084,5, and thereafter registered to practice law within the territory of India, in accordance with this Act.6 Provided, the Partners of such a partnership firm shall necessarily be Advocate(s) registered under the Advocates Act and foreign lawyer(s). (8) ‘Foreign Practitioners’ Registration Board’ shall mean a board constituted under this Act. (9) ‘Fly-In, Fly-Out’ means when a foreign lawyer performs legal functions within the territory of India, without establishing a permanent place of business within the territory of India, to the extent permitted under this Act. CHAPTER II FOREIGN PRACTITIONERS’ REGISTRATION BOARD 4. Foreign Practitioners’ Registration Board. – There shall be a Foreign Practitioners’ Registration Board which shall consist of 5 members, namely: (1) A Retired Judge of the Supreme Court, who shall be appointed by the Ministry for Law & Justice, who shall be the Chairperson of the Board; (2) The President of the Bar Council of India or his nominee, provided in case of nominee, he has been an Advocate practicing within the territory of India for not less than twenty-five years in the Supreme Court of India and/or one or more High Courts; (3) An officer of the Indian Legal Services who is or has been a Secretary/ Additional Secretary in the Ministry of Law & Justice, as designated to the Board by the Central Government; (4) An officer not below the rank of Additional Secretary, retired/serving in the Ministry of Commerce, as designated to the Board by the Central Government; (5) The President of the Supreme Court Bar Association or his nominee, provided that he has been an Advocate practicing within the territory of India for not less than twenty-five years in the Supreme Court. This is critical for ensuring that any partnership formed with a foreign national has to mandatorily submit its statement of accounts as well as equity structure on an annual basis and thus is a pre-requisite for ensuring that any such firm remains within the purview of this Act. Accordingly, a clarification must also be issued to allow Indian law firms to function as LLPs. 5 There shall be no additional restrictions placed upon the name under which the LLP may operate, and it may utilise the name being used by the Foreign Law Firm in other jurisdictions in which it operates. This permission is critical for Foreign Law Firms to be interested in working in India through this route, and is also a means for differentiating between their operations and those of Foreign Qualified Independent Legal Professionals. 6 The relevant provision of the BCI rules shall have to be changed in order to allow Advocates to enter into partnerships with Foreign Practitioners. 4 4 5. Tenure of the Board Members. (1) Tenure of the Chairperson. – The Chairperson appointed under section 4 shall have a tenure of 2 years and shall be eligible for reappointment once. (2) Tenure of the President of The BCI or his nominee. – The tenure of the President of the BCI shall coincide with his tenure as the President of the BCI, and in the case of his nominee, for a period of 2 years and the nominee shall be eligible for reappointment. (3) Tenure of the President of The SCBA or his nominee. – The tenure of the President of the SCBA shall coincide with his tenure as the President of the SCBA; and in the case of his nominee, for a period of 2 years and the nominee shall be eligible for reappointment. (4) Tenure of Officers designated by the Central Government. – The tenure of the Officers designated to the Board by the Central Government shall coincide with their tenure in their respective Ministries; and in the case of retired Officers for a period of 2 years and they shall be eligible for reappointment once. 6. Foreign Practitioners’ Registration Board, to be a body corporate. – The Foreign Practitioners’ Registration Board shall be a body corporate with its head office at New Delhi and having perpetual succession and a common seal with the power to acquire, hold and dispose of property, both movable and immovable and contract and shall by the said name, sue or be sued. 7. Functions and Powers of the Registration Board. – The Foreign Practitioners’ Registration Board shall have the following powers, which shall be read with the corresponding provisions of this Act. (1) To register Foreign Practitioners, who have sought registration by way of submitting the requisite form provided in Schedule 2 to this Act. (2) To register Foreign Law Firms, who have sought registration by way of submitting the requisite form provided in Schedule 2 to this Act. (3) To regulate Foreign Practitioners and Foreign Law Firms registered under this Act. (4) To ensure that Foreign Practitioners registered under this Act shall at all times comply with the standards of ethics as mentioned in Schedule 3 to this Act. (5) The Board from time to time, may recommend to the Central Government, which shall on such recommendation amend, alter, or add to Schedule 3 by way of a notification in the official gazette. (6) To ensure that no Foreign Lawyer who is not registered by the Board, may practice law within the territory of India and in violation of the provisions of the Act. (7) The Board may impose a fine not exceeding INR one crore against any Foreign Lawyer in violation of the Act, after giving due opportunity to the Foreign Lawyer to make a representation before the Board. (8) To ensure that Foreign Practitioners and Foreign Law Firms comply with the disclosure norms as provided in the registration form given in Schedule 2 to this Act. (9) To ensure that Foreign Practitioners comply with the extent of practice of law as provided in this Act. (10) The Board shall be empowered to revoke the registration of a Foreign Practitioner or Foreign Law Firm, in the event of contravention of any provision of this Act or the rules made thereunder, after giving due opportunity to the Foreign Practitioner or Foreign Law Firm to make a representation before the Board. (11) To undertake disciplinary action against any Foreign Practitioner registered with the Board for a violation of any statutory or ethical obligation, after giving due opportunity to the 5 Foreign Practitioner to make a representation before the Board. (12) To renew the licence of all registered Foreign Practitioners and Foreign Law Firms annually, subject to the fulfilment of the various requirements laid out in this Act. (13) The Board shall from time to time notify the fee payable by Foreign Practitioners and Foreign Law Firms for registrations and renewals affected under this Act. (14) The Board may form rules for the formation of a secretariat, which shall assist the Board in the implementation of the provisions of this Act. CHAPTER III EXTENT OF PRACTICE OF LAW BY FOREIGN PRACTITIONERS 8. Practice of Law by a Foreign Practitioner. - Foreign Practitioners shall be permitted to practice law in the territory of India, through an established and registered place of business within the territorial limits of India, subject to the limitations mentioned in this Act and shall comply with the standards of professional ethics as mentioned in Schedule 3 to this Act. 9. Limitation on Practice of Law by Foreign Practitioner. - A foreign national who has not fulfilled the qualification criteria listed under the Advocates Act, 1961 shall not be permitted to practice law in any manner before any Court of Judicature, Tribunal or dispute resolution body created by or under any act passed by the Parliament or State legislature; including, but not limited to the Supreme Court of India, the High Courts of the various states, trial courts, tribunals at district, state or national levels, as well as any judicial/quasi-judicial authority which, as a part of its governing rules and regulations permits only Advocates to appear before it.7 CHAPTER IV FOREIGN LAW FIRMS AND FOREIGN LAW FIRMS ESTABLISHED IN INDIA8 10. Registration of Foreign Law Firm. - A Foreign Law Firm shall not be permitted to operate in India unless it has registered itself with the Foreign Practitioners’ Registration Board9 and has subsequently renewed its registration annually as provided under this Act10. 11. Restriction on Foreign Practitioners working with a Foreign Law Firm. - Foreign Practitioners working with a Foreign Law Firm registered in accordance with this Chapter shall not be permitted to practice law unless they have been registered with the Foreign Practitioners’ Registration The purpose of inserting such a clause expressly is to remove all doubts vis-à-vis the practice before courts by foreign nationals. 8 The present regulatory environment does not provide for regulations for Indian Law Firms. Accordingly, we need to be careful in articulating the rationale behind regulating Foreign Law Firms, without bringing Indian Law Firms under regulation. Alternatively, a green signal is required to prepare a regulation for Indian Law Firms as well. 9 This requirement of registration, irrespective of the Foreign Law Firm having a place of business, will facilitate the regulation of any advice given by them on Indian soil and at the same time will ensure that only firms which have invested their time and effort into understanding the Indian market are permitted to enter into a Partnership for the creation of a permanent place of business. 10 This requirement of renewal is important to ensure that Foreign Practitioners are adhering to the restrictions placed upon them by this Act, especially with respect to ownership rules. 7 6 Board.11 12 12. Date of Commencement of Foreign Law Firm. - For the purposes of this Act, the date on which the registration process is complete and the Foreign Law Firm receives a certificate, allowing it to practice in India, shall be the ‘Date of Commencement’. 13. Conditions on Practice by Foreign Law Firms. - A Foreign Law Firm registered under this Act shall comply with the following conditions: (1) No profits from any Foreign Law Firm shall be remitted, either directly or indirectly, to any person who is not a lawyer or Advocate.13 (2) A Foreign Law Firm, for the first two years from the Date of Commencement: a) shall not be allowed to set up an office within the territory of India.14 b) may work in conjunction with an Advocate or a firm of Advocates, in so far as they are not in violation of any provision of this Act or the spirit in which they have been enacted.15 c) Subject to the provisions of this Act, may by ‘fly-in, fly-out’ after registration under this Act and i. provide legal advice on the law of the jurisdiction in which they have qualified and hold a license to practice in; or ii. represent its clients in international arbitration during and post the initiation of the arbitration proceedings16; or iii. represent its clients in conciliation and mediation; or iv. provide legal advice on public and private international law. (3) A Foreign Law Firm, upon the completion of 2 years from the Date of Commencement:17 a) may operate as a Foreign Law Firm Established in India, where it holds not more than This is critical for allocating liability as various provisions of law may impact extending liability from the erring individuals to the firm as a whole. 12 Compulsory registration for all Foreign Practitioners working with Foreign Law Firms is essential to ensure that Foreign Law Firms with offices in multiple jurisdictions can only depute Foreign Practitioners from countries that stand the test of reciprocity. In the absence of such a requirement it would very difficult to administer and require reciprocity from each and every country in which the Foreign Law Firm operates. 13 This is to preclude law firms which run multidisciplinary practices or which have investments by non-lawyers from operating in India, as the same is not permitted for Indian law firms either. This restriction may be relaxed in the event Indian law firms are granted permission to seek investments from non-lawyers and/or run as multidisciplinary practices. 14 At the time of promulgation of this Act, this restriction is critical to allow Indian law firms the time to position themselves in preparation for the entry of Foreign Practitioners in India. Thereafter, it is important to regulate the entry based on the experience and expertise a Foreign Practitioner gains in terms of India-related work, to be in the best position to advise Indian citizens. 15 It is clear that nothing in this Act shall take away the power of the BCI to regulate Advocates irrespective of their mode of association with Foreign Law Firms as mentioned in this section and in subsequent sections. 16 This is to pre-empt opening up contract advisory/review/diligence and other similar services which may use the existence of an international arbitration clause in a contract to offer the services mentioned in this footnote. 17 This is not mandatory and the firms may continue to function as they did in phase I without entering into a Partnership. 11 7 26% equity along with an Indian Advocate(s)18 who has been practicing law in India for a minimum period of 5 years19. b) shall set up a registered office within the territory of India upon commencement of operations as a Foreign Law Firms Established in India. c) shall not restrict Indian Advocates associated with the firm from the practice of law as permitted under the Advocates Act.20 (4) A Foreign Law Firm Established in India, upon the completion of three years from entering into a limited liability partnership: a) may hold not more than 49% equity along with an Indian Advocate(s) or a firm of Advocates who have been practicing law in India for a minimum period of 5 years.21 b) may provide advisory, transactional and contractual services to both Indian and foreign clients. Provided, any advice given with respect to Indian law, shall only be given by an Advocate. CHAPTER V FOREIGN QUALIFIED INDEPENDENT LEGAL PRACTITIONER22 14. Registration of Foreign Qualified Independent Legal Practitioners. - Foreign Qualified Independent Legal Practitioners shall not practice in India without being registered with the Foreign Practitioners’ Registration Board and subsequently renewing their registration annually as provided under this Act. 15. Date of Commencement for Foreign Qualified Independent Legal Practitioners. - For the purposes of this Act, the date on which the registration process is complete and the Foreign Qualified Independent Legal Practitioner receives a certificate, allowing him to practice in India, shall be the ‘Date of Commencement’.23 This would also include a firm of Advocates. Accordingly, a firm of Indian Advocates should be permitted to convert into an LLP in the capacity of their firm and not just as individuals as is already provided for under the LLP Act, 2008. 19 This is because most Foreign Law Firms who work in India already have India-qualified lawyers on their India Desks. This will preclude them from opening their India offices with their existing employees/Partners. It will help us further ensure that any advice being given to the citizens of India comes from Advocates who have practiced law in India. 20 This is important as we are not allowing 100% ownership by Foreign Practitioners and a restriction on Indian qualified legal practitioners from appearing before the courts may not be a valid restriction. 21 While some Foreign Law Firms have expressed reservations about the adverse effects of not holding a majority stake in a firm, the fact remains that India is one of the biggest economies in the world, our legal industry has a very high growth trajectory, and Foreign Law Firms already have high volumes of work coming to them from the Indian market. Considering these facts, we are confident that Firms which are serious about setting up in India will find these terms acceptable. 22 It is critical to regulate them separately, as this mode will also allow Indian law firms who are in a position of strength to work with Foreign Practitioners without having to change their trade name. Other reasons for a separate chapter can be seen from the notes to this chapter. 23 This requirement of registration, irrespective of the FQILP having a place of business will facilitate the regulation of any advice given by them on Indian soil and at the same time will ensure that only foreign practitioners who have invested their time and effort into understanding the Indian market are permitted to enter into Partnership for the creation of a permanent place of business. 18 8 16. Conditions on Practice by Foreign Qualified Independent Legal Practitioners. - A Foreign Qualified Independent Legal Practitioner registered under this Act shall comply with the following conditions: (1) No profit earned by a Foreign Qualified Independent Legal Practitioners shall be remitted, either directly or indirectly, to any person who is not a lawyer or Advocate. (2) No Foreign Qualified Independent Legal Practitioner shall be employed or retained on a fulltime basis with a Foreign Law Firm.24 (3) A Foreign Qualified Independent Legal Practitioner, for the first two years from the Date of Commencement: a) Shall not be allowed to set up an office within the territory of India. b) Shall not employ or retain any foreign lawyer or Advocate on a permanent basis, within the territory of India. c) Shall not enter into any arrangement with an Indian law firm or Indian lawyers, which may be construed as a partnership in contravention of this Chapter or Chapter IV. d) Shall register with the Foreign Practitioners’ Registration Board and practice under the name mentioned in his/her Passport.25 e) May be engaged by an Advocate or a firm of Advocates, to the extent that it is not in contravention of any provision of this Act.26 f) May engage with corporations as their dedicated counsel on matters that they are permitted to advice on under this Act.27 g) Subject to the provisions of this Act, may by ‘fly-in, fly-out’ after registration under this Act: i. provide legal advice on the law of the jurisdiction in which he has qualified and holds a license to practice in; or ii. represent its clients in international arbitration during and post the initiation of the arbitration proceedings; or iii. represent its clients in conciliation and mediation; or iv. provide legal advice on public and private international law; (4) A Foreign Qualified Independent Legal Practitioner, upon the completion of 2 years from the Date of Commencement: a) may become a partner in a limited liability partnership, where he shall not hold more than 26% equity, along with an Indian Advocate(s) or a firm of Advocates who has been practicing law in India for a minimum period of 5 years. Provided, the partnership firm mentioned in this subsection shall not operate under the name or trade name of any Foreign Law Firm. Explanation: Where more than one Foreign Qualified Independent Legal Practitioner who has completed more than 2 years, but not more than 5 years from their Date of This is to preclude Foreign Law Firms from sending individuals as their representatives to India, and thus owning 100% of their practices. 25 This is to further ensure that Foreign Law Firms do not misuse this route to set up their practices. 26 This shall include any exclusive or non-exclusive working arrangements, inclusion in firm profiles, and announcements of the same. This will also allow Indian Law Firms to compete on an equal footing with Foreign Law Firms by engaging Foreign Qualified Independent Legal Practitioners. 27 This is important as some companies have employed foreign General Counsels in India and their practice must also be regulated. Accordingly, Advocates working with corporations on a full time basis should also be permitted to retain their Bar registration/license upon providing an undertaking that they shall not represent any client other than the corporation that they are engaged with, and its related entities. 24 9 Commencement, is a partner in a limited liability partnership firm with an Indian Advocate(s) or a firm of Advocates, their combined equity share shall not exceed 26%. b) The limited liability partnership firm as mentioned in the aforementioned sub-section of this section may set up a registered office within the territory of India. (5) A Foreign Qualified Independent Legal Practitioner, upon completion of three years from entering into a limited liability partnership: a) may enter into, or extend an existing partnership, where the Foreign Qualified Independent Legal Practitioner shall not hold more than 49% equity along with an Indian Advocate(s) or a firm of Advocates who have been practicing law in India for a minimum period of 5 years. Explanation: Where more than one Foreign Qualified Independent Legal Practitioner is a partner in a limited liability partnership firm with an Indian Advocate(s) or a firm of Advocates, their combined equity share shall not exceed 49%. b) may provide advisory, transactional and contractual services to both Indian and foreign clients. Provided, any advice given with respect to Indian law, shall only be given by an Advocate. CHAPTER VI MISCELLANEOUS 17. Power of the Central Government to make rules: The Central Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act, including but not limited to revising the equity share permitted to be held by Foreign Practitioners under this Act. Provided that such notification is not issued within 5 years from the promulgation of this Act. (1) Without any prejudice to the generality of the foregoing power, the Foreign Practitioner’s Registration Board shall retain the power to make regulations for foreign lawyers operating in India. 18. Act not in derogation of any other Law: The provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being in force. 10 SCHEDULE 1 LIST OF COUNTRIES WITH WHICH INDIA HAS IMPLICIT OR EXPLICIT RECIPROCITY To be notified by the Central Government 11 SCHEDULE 228 REGISTRATION FORM 1: FOR FOREIGN PRACTITIONERS Part 1: Details of Legal Practitioner a) Mr./Ms./Other: b) Full name as stated on passport: c) Date of birth: d) Passport number: e) Nationality: f) Bar/ Law Association registration number(s): g) Jurisdiction(s) qualified to practice in: h) Jurisdictions(s) actively practising in: i) Number of active years practicing: Part 2: Contact Details: a) Correspondence address: b) Telephone number: c) Fax number: d) Email: Part 3: To Be Filled in, in Case of Renewal of Registration Only: a) Do you hold equity in any registered limited liability partnership? b) If yes, please provide copies of its annual accounts, as well as the equity structure of such LLP. c) Mention the Date of Commencement of your practice in India. d) Have you committed any acts which would be considered to be in contravention of the provisions of this Act or Schedule 3 of the same? Part 4: Practice Details: a) Proposed areas of practice within permitted practice areas: b) Do you intend to work as a part of a Foreign Law Firm or an Independent Legal Practitioner? c) If you intend to work with a Foreign Law Firm, please mention the name and registration details of the same. d) If you intend to work as Independent Legal Practitioner, do you intend to have an association with any Indian lawyer/ law firm? e) If yes, please provide details of the same. Part 5: Details of Indemnity Insurance Policy: a) Do you have a subsisting professional indemnity insurance policy that is valid in India? Details requested for in these forms, as well as their order, may change according to the changes made to the Act. 28 12 b) If yes, provide the details below. c) If yes, provide the sum insured. (Copy of insurance policy to be provided). Part 6: Details of Disciplinary Proceedings a) Please provide details of all disciplinary, criminal or civil proceedings which you have been subject to in the last 5 years, including but not limited to proceedings that have or may lead to disciplinary action or any restriction placed upon you in any jurisdiction (if any). (Copy of relevant document(s) to be provided). UNDERTAKING FOR FOREIGN PRACTITIONER REGISTRATION I, ____________________________________________ (name), with passport number ___________________________ hereby state that I am eligible to be registered as a Foreign Practitioner under the provisions of the Foreign Legal Practitioners’ Act, 2016 and the rules made thereunder. I undertake the responsibility to act in accordance with all the rules and regulations mentioned under the Foreign Legal Practitioners’ Act, 2016 as well as any rules prescribed by the Foreign Practitioners’ Registration Board under the powers granted to them under such Act. I hereby declare that all information as well as any documents furnished by me as a part of my registration with the Foreign Practitioners’ Registration Board is true and accurate to the best of my knowledge. ______________________________ Name: Date: Place: 13 DOCUMENT CHECKLIST FOR FOREIGN PRACTITIONER REGISTRATION No. Document 1. Application Form 2. 3. Passport Bar License(s) 4. Professional Indemnity Insurance Policy Disciplinary matters 5. Description Check Section A Section B: Undertaking Copy of passport of applicant Copy of bar licence(s) of jurisdiction(s) qualified to practice in Copy of the professional indemnity insurance referred to in item 2(a) of application form Additional attachment with details of any proceedings against the practitioner (as mentioned under Part 6) 14 REGISTRATION FORM 2: FOR FOREIGN LAW FIRMS Part 1: Details of Foreign Law Firm a) Name of Foreign Law Firm: b) Organisation Structure: Sole proprietorship/ Partnership/ Other: c) Correspondence address of firm: d) Telephone number: e) Fax number: f) Email: g) Website: h) Jurisdictions the firm practices in: i. With manned offices: ii. With liaison/correspondent offices: Part 2: Details of Indemnity Insurance Policy a) Does the firm have a subsisting professional indemnity insurance policy that is valid in India? b) If yes, provide the details below. c) If yes, provide the sum insured. (Copy of insurance policy to be provided). Part 3: Details of Disciplinary Proceedings Against Foreign Law Firm: a) Please provide details of all disciplinary, criminal or civil proceedings which the Firm or any of its Partners have been subject to in the last 5 years, including but not limited to proceedings that have or may lead to disciplinary action or any restriction placed upon you in any jurisdiction (if any). ______________ (Copy of relevant document(s) to be provided). Part 4: Information on Foreign Law Firm: a) Proposed areas of practice within permitted practice areas: b) Details of all lawyers registered or to be registered to practice in India with the Foreign Law Firm: No. Name of Lawyer Designation Qualified Bar/Law Association Jurisdictions & Registration Number Contact Address & Phone Number Date of Commencement c) Do you have or intend to have joint operations with any Indian law firm(s)? d) If yes, disclose their details (Name and Contact Details): 15 Part 5: Applicant on Behalf of Foreign Law Firm: (The applicant must be a Foreign Practitioner registered under this Act and shall be responsible for ensuring that all obligations and duties provided for in the Foreign Legal Practitioners’ Act are complied with). a) Mr./Ms/Other: b) Full name as stated on passport: c) Date of birth: d) Passport number: e) Nationality: f) Bar/ Law Association registration number(s): g) Designation – Sole proprietor/ Managing Partner/ Partner/ Others: h) Date of Commencement: i) Correspondence address: j) Telephone number: k) Fax number: l) Email: Part 6: Details Relevant for Renewal of Registration: a) Date of Commencement of Foreign Law Firm. b) Have you entered into a limited liability partnership with an Advocate or firm of Advocates? c) If yes, please mention the date of registration of such LLP. d) Has the share of equity attributable to the Foreign Law Firm through its Partners increased or decreased? e) Please provide copies of the annual accounts, as well as the equity structure of such LLP. f) Has the firm or any of its members committed any acts which would be considered to be in contravention of the provisions of this Act or Schedule 3 of the same? Part 7: Particulars of the LLP (if applicable): a) Name: b) Address: c) Telephone number: d) Fax number: e) Email: 16 UNDERTAKING FOR A FOREIGN LAW FIRM REGISTRATION I, ____________________________________________ (name), with passport number ___________________________ hereby state that the Law Firm ________________________ is eligible to be registered as a Foreign Law Firm under the provisions of the Foreign Legal Practitioners’ Act, 2016 and the rules made thereunder. I, on behalf of the firm, undertake the responsibility to act in accordance with all the rules and regulations mentioned under the Foreign Legal Practitioners’ Act, 2016 as well as any rules prescribed by the Foreign Practitioners’ Registration Board under the powers granted to them under such Act. I hereby declare that all information as well as any documents furnished as a part of the registration with the Foreign Practitioners’ Registration Board is true and accurate to the best of my knowledge. ______________________________ Name: Date: Place: 17 DOCUMENT CHECKLIST No. Document 1. Application Form 2. Passport 3. 4. Professional Indemnity Insurance Policy Disciplinary matters 5. Foreign Lawyer(s) details Description Check Section A Section B: Undertaking Copy of passport of applicant on behalf of the Foreign Law Firm Copy of the professional indemnity insurance referred to in item 2(a) of application form Additional attachment with details of any disciplinary proceedings against the firm Additional attachments providing details of all foreign lawyers to be practicing in India, including copies of their Foreign Practitioner Registration Forms as well as all documents attached therewith. 18 SCHEDULE III RULES REGARDING REGULATION AND PROFESSIONAL ETHICS 1. All Foreign Practitioners are obligated to maintain the strictest code of ethics in accordance with common law jurisprudence as well the requirement of the regulatory authority of each nation that is represented in any Partnership that they may be a part of. 2. For the sake of clarification, the following Standards of Professional Conduct and Etiquette, the spirit of which are similar to those given in Chapter 2, Part 6 of the Bar Council of India Rules, shall be applicable to Foreign Practitioners in terms of their conduct either directly or through Foreign Law Firms. (1) A Foreign Practitioner shall, at all times, comport himself in a manner befitting his/her status as a privileged member of the community, bearing in mind that what may be lawful and moral for a person who is not a member of the legal profession, or for a member of the legal profession in his non-professional capacity may still be improper for a legal practitioner. Without prejudice to the generality of the foregoing obligation, a Foreign Practitioner shall fearlessly uphold the interests of his/her client and in his/her conduct conform to the rules hereinafter mentioned both in letter and in spirit. The rules hereinafter mentioned contain canons of conduct and etiquette adopted as general guides; yet the specific mention thereof shall not be construed as a denial of the existence of others equally imperative though not specifically mentioned. (2) Duty to the Court a) A Foreign Practitioner may not make representations in a court of law either directly or by way of briefing a competent Advocate.29 (3) Duty to the Client a) A Foreign Practitioner shall on all occasions ensure that the Client is made aware of the fact that he is not an Advocate.30 b) A Foreign Practitioner shall not ordinarily withdraw from engagements, once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client. Upon his withdrawal from a matter, he shall refund such part of the fee as has not been earned. c) A Foreign Practitioner should not act or advise on a matter or deal if the same is subjudice in a Court of law, in which he has reason to believe that he will be a witness, and if being engaged in a matter, it becomes apparent that he is a witness on a material question of fact, he should not continue to act or advise on such matter if he can retire without jeopardising his client’s interests. d) A Foreign Practitioner shall at the commencement of his engagement and during the continuance thereof, make all such full and frank disclosure to his client relating to his connection with the parties and any interest in or about the controversy as are likely to affect his client’s judgement in either engaging him or continuing the engagement. e) It shall be the duty of a Foreign Practitioner to fearlessly uphold the interests of his client by all fair and honourable means without regard to any unpleasant This is to preclude not just arguing in court but also attending court by way of a briefing counsel. to Indian citizens from any misrepresentation as to the extent of advice that can be provided to them. 29 30 This is to ensure protection 19 consequences to himself or any other. f) A Foreign Practitioner shall not, directly or indirectly, commit a breach of the obligations imposed by Section 126 of the Indian Evidence Act. g) A Foreign Practitioner shall not, at any time, be a party to fomenting of litigation. h) A Foreign Practitioner shall not act on the instructions of any person other than his client or his authorised agent. i) A Foreign Practitioner shall not stipulate for a fee contingent on the results of a matter or deal, or agree to share the proceeds thereof. j) A Foreign Practitioner shall not buy or traffic in or stipulate for or agree to receive any share or interest in any actionable claim. Nothing in this rule shall apply to stock, shares and debentures of government securities, or to any instruments which are, for the time being, by law or custom, negotiable or to any mercantile document of title to goods. k) A Foreign Practitioner shall not adjust fee payable to him by his client against his own personal liability to the client, which liability does not arise in the course of his retainer as a legal practitioner. l) A Foreign Practitioner shall not do anything whereby he abuses or takes advantage of the confidence reposed in him by his client m) A Foreign Practitioner should keep accounts of the client’s money entrusted to him, and the accounts should show the amounts received from the client or on his behalf, the expenses incurred for him and the debits made on account of fees with respective dates and all other necessary particulars. Where any amount is received or given to him on behalf of his client, the fact of such receipt must be intimated to the client, as early as possible. n) After the termination of the matter/deal, the Foreign Practitioner shall be at liberty to appropriate towards the settled fee due to him, any sum remaining unexpended out of the amount paid or sent to him for expenses or any amount that has come into his hands in that matter. o) A copy of the client’s account shall be furnished to him on demand provided the necessary copying charge is paid. p) A Foreign Practitioner shall not enter into arrangements whereby funds in his hands are converted into loans. q) A Foreign Practitioner shall not lend money to his client for the purpose of any action or legal proceedings in which he is engaged by such client. r) A Foreign Practitioner who has at any time, advised in connection with a matter, or acted for a party in any capacity, shall not act for or advise the opposite party in the same or related matter. (4) Duty to Opponent a) A Foreign Practitioner shall not in any way communicate or negotiate upon the subject matter of controversy with any party represented by an Advocate except through that Advocate. b) A Foreign Practitioner shall do his best to carry out all legitimate promises made to the opposite party even though not reduced to writing or enforceable under the rules of the Court. (5) Duty to Colleagues a) A Foreign Practitioner shall not solicit work or advertise, either directly or indirectly, 20 except in the manner enumerated hereunder:31 i. By way of a website, which may contain information about the practice, its members, contact details, latest information regarding recent representations, recent developments and other knowledge centric material, provided that access to such information is preceded with a disclaimer that acknowledges that such information is not for the purpose of soliciting work and that each visitor may use his/her prudence for engaging with a lawyer for his/her needs. Accordingly, none of the permitted content should make soliciting statements enticing a visitor to engage with the said legal practitioner either directly or through his/her law firm. ii. By way of authoring articles, contributing to news stories in the print, electronic and digital media in so far as the same is in furtherance of his/her expertise in law or otherwise, which may not directly come under the purview of solicitation. iii. By way of preparing and sharing with people known to the Foreign Practitioner, statements of experience and other print collateral in accordance with the permitted content under sub-clause (i) above. iv. By way of lending his/her name to the organization of any event where the legal profession or its offshoots are being discussed for monetary or other consideration. v. By way of providing the requisite information to electronic and print media for allowing them to either list him/her as an expert, or to be able to review his/her expertize as long as the same is only as a statement of fact and not solicitation and should therefore not in any way or form express the fee that he may or does charge for his services. vi. By way of contributing fact- or knowledge-based inputs and advertisements to digital and print media in so far as the same is informational in nature and not as a form of direct or provocative solicitation. vii. By way of displaying his sign-board or name-plate or stationery, with relevant factual information, without the use of any superlatives that may denote an untrue or exaggerated connotation to any position or qualification held by him. b) A Foreign Practitioner shall not permit his professional services or his name to be used in aid of, or to make possible, the unauthorised practice of law by any law agency. (6) Duty of imparting training32 a) It is improper for a Foreign Practitioner to demand or accept fees or any premium from any person as a consideration for imparting training in law. b) An FQILP shall have the duty to impart training in law through holding workshops, seminars and the like, for a minimum of 12 hours per annum. c) Similarly, a Foreign Law Firm shall have the duty to impart training in law through holding workshops, seminars and the like, for a cumulative minimum of 60 hours per annum. A similarly worded provision must also be allowed in the Bar Council of India Rules to permit an Advocate to showcase his expertise without soliciting clients. 32 This will promote and assist the raising the standards of legal practice in India and should be bolstered by provisions for continuing legal education for Indian practitioners. 31 21 (7) Restriction on other Employments a) A Foreign Practitioner shall not personally engage in any business or be a sleeping partner in a firm doing business. b) A Foreign Practitioner may be the Director or Chairman of the Board of Directors of a Company with or without any ordinary sitting fee, provided none of his duties are of an executive character. A Foreign Practitioner shall not be a Managing Director or Secretary of any Company. c) A Foreign Practitioner shall not be a full-time salaried employee of any person, government, firm, corporation or concern, except for the purpose of working in a legal role in the same within the limitations provided in this Act. d) A Foreign Practitioner may edit legal text books at a salary, do press-vetting for newspapers, coach pupils for legal examinations, set and examine question papers; and subject to the rules of advertising and full-time employment, engage in broadcasting, journalism, lecturing and teaching subjects, both legal and non-legal. e) Nothing in these rules shall prevent a Foreign Practitioner from accepting, after obtaining the consent of the Registration Board, part-time employment provided that in the opinion of the Board, the nature of the employment does not conflict with his professional work and is not inconsistent with the dignity of the profession. This rule shall be subject to such directives, if any, as may be issued by the Bar Council of India from time to time. (8) Duty towards the Board a) A Foreign Practitioner who holds equity in a limited liability partnership, registered under the LLP Act, 2008 shall ensure the submission of copies of the annual accounts, as well as the equity structure of such LLP to the Board for the maintenance of its records.33 b) A Foreign Practitioner shall submit all such information as is required of him under Schedule 2 and any other additional information that may be required by the Registration Board for the purpose of renewal of his registration and that of the Foreign Law Firm. c) A Foreign Practitioner shall undertake Professional Indemnity Insurance, as stated in Schedule 2, in order to fulfil criteria of registering with the Board, and shall submit the details of such insurance to the Board for the maintenance of its records. d) A Foreign Practitioner shall make the Board aware of wrongdoings that he has knowingly or unknowingly committed or has observed to have been committed by any other legal practitioner, in contravention of the standards and codes of ethics applicable to them. e) Foreign Practitioners shall convey to the Board details of the mandatory trainings they are to impart annually. This is to ensure that all Foreign Practitioners/Foreign Law Firms fulfil their fiscal responsibilities as mandated under this Act and other laws as applicable within the jurisdiction of India. 33 22 INDIAN CORPORATE COUNSEL ASSOCIATION NOTES: Foreign Legal Practitioners (Regulation of Practice) Bill, 2016 Presented by: Drafted by: I A ll? AS I FUUD INDIAN CORPORATE COUNSEL ASSOCIATION