Document writers put out of work, practically

In a judgement that is likely to have far reaching impact, the Bombay High Court has ruled that only advocates can render quasi legal services such as drafting or reviewing documents and offering advice.

No other person can frame documents, offer advice or provide any service on matters that may ultimately end up as the subject of litigation in a court, including framing an agreement, deed, contract etc.

The decision, delivered in a case on foreign companies offering such quasi-legal services, is likely to upset the current system of framing contracts and deeds, etc in the country as it is often done by non-advocates.

Currently, for example, title deeds of land can be prepared by non-advocates also, as long as they have passed the qualifying exam to be a “licensed document writer.”

The ruling will also force all foreign legal services firms to wind up their operations in India as foreign firms are unable to register with the Bar Council in India as the latter accepts on Indian entities as its members.

“There is no reason to hold that in India the practice in non-litigious matters is unregulated,” ruled the Bombay High Court bench comprising chief justice Swatanter Kumar and justice JP Devadhar.

It is not the case in India that “a law firm or an individual engaged in non litigious matters, that is, drafting documents or giving opinion or rendering any other legal assistance are answerable to none,” the two observed.

The government of India had objected to the position that only advocates can prepare legally-valid documents or offer advice, pointing out that its bureaucrats will be crippled if such a restriction was imposed.

The court, however, seemed to make a distinction between making documents for own use and creating it for third parties as a service.

“A bureaucrat drafting documents or giving opinion is answerable to his superiors, whereas, a law firm or an individual engaged in non-litigious matters, that is, drafting documents or giving opinion or rendering any other legal assistance are answerable to none,” the judgement noted.

The judgment came on a 14-year-old petition filed by the Mumbai-based Lawyers’ Collective, a non-profit organisation representing advocates and law students.

The Collective wanted the court to ban foreign law firms from offering quasi-legal services such as advising on corporate transactions and mergers, framing contracts etc..

Under the current law, only advocates registered with any of the Bar Councils in the country are allowed to represent clients in a Court or similar body.

However, since the Bar Council membership is open only to Indians and Indian firms, foreign firms have confined themselves to the so-called non-litigious activities - framing documents, advice etc.

As India became more and more globalised and Indian firms started getting into multinational transactions, the non-litigious practice has grown into a lucrative, multi-million dollar business.

Senior Supreme Court lawyer and general secretary of the Bar Association of India, Lalit Bhasin welcomed the judgement. Bhasin, who has opposed the entry of foreign law firms, advised them and the government against appealing against the ruling.

“Appealing against this judgement may not be the best way to move forward because if the Supreme Court upholds the judgement, too, it will be difficult to find a solution to this problem through legislation also,” he said.