InsideCounsel » November 2007
Outside Counsel
In a legal system undergoing rapid and massive change, Indian counsel can help clear the hurdles.
In March key members of India’s legal community converged in London on the invitation of the Law Society of England and Wales. The Society made its aim clear: it wanted to convince India’s government to lift its ban on foreign attorneys practicing in India. As late as the end of August, the Press Trust of India reported India’s government was discussing the matter with India’s legal community, which opposes liberalization out of fear that Indian firms will lose business to large international firms.
Experts vary on when the Indian market will open, but pressure from countries with business interests in India makes the move imminent. Until the market opens foreign companies operating in India are limited to using domestic Indian attorneys as outside counsel.
“In many countries, [in-house counsel] can reach out to a White & Case or a Mayer Brown, but you’re not going to be able to do that in India,” says Greg Kalbaugh, director and counsel of the U.S.–India Business Counsel. “So you’re going to have to build up a repository or a connection with a domestic law firm.”
That’s not to say the restriction has to be a liability. Indian attorneys have a finger on the pulse of their country in a way no foreigner could.
“Indian counsel whom we’ve worked with really know the regulations and environment of India,” says Su Mei Shum, chief legal counsel for Motorola’s South Asian operations. “I’m sometimes quite impressed at the extent of knowledge they have on the subtleties of the law.”
Scarce Resources
The other good news is it’s not difficult to identify the right outside counsel for a company’s needs, despite India’s ban on law firm advertising that some Indian firms interpret as extending to law directories, yellow pages ads and Web sites.
Across the board, experts say U.S. companies can overcome the enormity of India’s cadre of attorneys and find a trustworthy Indian law firm through simple word of mouth.
“Even though there are hundreds of thousands of lawyers in India, the universe of counsel experienced in sophisticated international transactions is relatively small,” says Tom Britt, a partner in Debevoise & Plimpton’s Hong Kong office. “So if you asked a dozen international lawyers for recommendations of counsel, you’d probably see a dozen very similar lists of the firms and the people to go to.”
But that narrow field of experienced and competent law firms poses some challenges for companies that want to hire the best attorneys in a competitive market. “The pace of transactions in India is growing much more rapidly than the pace of new lawyers entering the market is growing,” Britt says.
Compounding this scarcity is the recent practice among Indian attorneys to leave the country after graduation for training in international markets. It doesn’t help that some ultracompetitive companies hoard senior counsel—the only counsel allowed to represent clients in Indian courts—just so opponents can’t use them. The relative shortage of attorneys means multinationals may have to vie with others for the attention of indemand law firms.
