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January 28, 2011

ABA President Urges Bar Council of India To Reaffirm Status Quo

ABA President Stephen Zack advocates for American lawyers in a letter to Gopal Subramaniam, current Chairman of the Bar Council of India and Solicitor General of India.

January 25, 2011

Dear Mr. Subramanium:

I write further to the correspondence exchanged between you and my predecessor, Carolyn Lamm, in 2010 in connection with regulation of activities of U.S. lawyers in India.

I understand from the statements made before the Madras High Court on January 24, 2011 that a plenary session of the Bar Council of India has been convened on January 29, 2011 to make a decision on the practice of law by foreign law firms in India. In advance of that meeting, on behalf of our members, I wanted to urge you and the other members of the Bar Council of India to make a decision that would maintain and reaffirm the status quo, under which the lawyers from India and the U.S. can and do visit the other’s country on a temporary basis to advise only on home country laws or other non-Indian laws (in the case of U.S. lawyers) or non-U.S. laws (in the case of Indian lawyers). I understand that the Bar Council of India needs to evaluate fully, and adopt rules and regulations addressing, the broader issue of whether, for example, U.S. lawyers should be permitted to establish offices in India and give advice on the laws of their home countries and international law, which I hope you will adopt in the not too distant future. However, until such rules are adopted, I request the Bar Council of India to not alter the status quo.

As you are aware, Indian lawyers travel frequently to the U.S. on an “in and out” basis to advise American clients about Indian law without registration in the U.S. In fact, certain Indian lawyers have established offices in the U.S. and give advice on Indian law pursuant to ABA’s Foreign Legal Consultant Rule which allows foreign lawyers to establish offices in the U.S. and give advice on the laws of their home countries and international law without passing any exams or undergoing any training in the U.S. Given the increasing number of cross-border transactions involving India and the U.S. (e.g., issuance of Indian Depositary Receipts and acquisitions by India based multi-national companies of U.S. businesses and companies), these practices are likely to become more prevalent. Similarly, U.S. lawyers travel to India on an “in and out” basis to advise their clients on non-Indian laws. The ABA believes that allowing such activities is critical not only for the mutual benefit of the legal practitioners in both countries but also for fostering the vital and already close relationship between India and the United States and to promote the robust growth of trade and investments between our two countries. Allowing such activities is also essential in making India a preferred venue for international arbitration proceedings, which is the stated objective of the Government of India. Restricting such activities is likely to adversely impact the ability of lawyers and businesses in both countries to continue to cooperate and conduct business with each other.

As the national voice of the U.S. legal profession, with nearly 400,000 members, the ABA urges the Bar Council of India to maintain and reaffirm the status quo and not restrict U.S. lawyers from carrying on their activities in India as they are currently conducting, i.e., on an “in and out” basis to advise on home country laws and other non-Indian laws.

We look forward to a positive response that we hope will lead to a result that will benefit our countries and the respective legal communities we represent.

Sincerely,

zacksig

Stephen N. Zack

PDF version of this letter.