- Mark Ross
- On March 21, 2012
After almost two years of false starts, adjourned hearings and painfully slow progression through the Indian courts, the Madras High Court finally ruled last month that foreign law firms can advise on international law and take part in international arbitration while physically being located within India. The ruling further confirmed that LPO companies are not engaging in the unlawful practice of Indian law and therefore do not fall foul of the Advocates Act 1961, which limits the practice of Indian law to Indian advocates. On reflection, perhaps I should not be overly critical with regard to the lapse of time prior to achieving a ruling. The issue of the unlawful practice of Indian law is one that raised its head a couple of years earlier. In December 2009, leading law firms Ashurst, Chadbourne & Parke and White & Case lost a long-running and related case against the Lawyers’ Collective, with the Bombay High Court deciding that the practice of law by foreign firms in India was illegal. That decision came 14 years after the initial filings!
The Madras complaint was filed in March 2010 by a group of local lawyers calling themselves the Association of Indian Lawyers, against 31 of the world’s leading law firms (including Linklaters, Freshfields, White & Case, Wilmer Hale, Pillsbury, Allen & Overy, Clayton Utz and Freehills), and one legal process outsourcing provider, namely my employer, Integreon. The petition alleged that these US, UK and Australian law firms were engaging in the unlawful practice of Indian law, which has long been prohibited under the terms of the Advocates Act. While it is self-evident to many that the practice of law can include not only litigation but corporate practice, the provision of legal advice etc, the complaint itself targeted activities that have become routine among international law firms such as meeting with clients in hotels, sometimes referenced as “fly-in, fly-out” meetings, attending conferences and seminars, and participating in arbitration in India.
So where is the link to LPO, I hear you ask? Well, the petitioner alleged that one of the methodologies that foreign law firms utilise to facilitate their unlawful practice of Indian law is through the medium of LPO, and I quote from the judgment, where the court summarised the petitioner’s assertions, “under the guise of LPO… foreign lawyers are visiting India… earning money from their clients in India”. While Integreon was the only LPO company included in the petition, there were no allegations specifically made against Integreon or in fact against any other LPO provider anywhere in the pleadings. Rather the allegations against the foreign law firms, put simply, were that via their relationships with LPO companies, they were engaging in the unlawful practice of Indian law.
I have always been of the opinion that the inclusion of any LPO provider in the petition was entirely without merit. Leading LPO providers are extremely careful to ensure that they do not engage in the practice of law in any jurisdiction, let alone India. (Check out the disclaimer regarding the practice of law on the Integreon website.) It remains incumbent on LPO providers to conduct their operations so that they do not engage in the unauthorised/unlawful practice of law in any jurisdiction. The premise of the services LPOs offer to law firms and corporate legal departments is to allow their lawyers to do what they do best: practice law. In addition, for the vast majority of the top tier LPO providers, their client base consists of leading US, UK and Australian corporations and law firms, i.e. not Indian clients. The fact is LPO providers are creating employment opportunities for legally trained people in India (and elsewhere) who simply provide outsourced services in support of legal work performed outside of India for US, UK and Australian clients.
While the ruling of the Madras High Court is clearly welcome, the door has been left slightly ajar in the event that any complaints are made against LPO providers for violating the Advocates Act. In that instance the Bar Council of India may take action against erring outsourcing providers.