SILF urges BCI to give statutory recognition, extend attorney-client privilege to Indian General Counsel

The Society of Indian Law Firms (SILF) has written to the Bar Council of India (BCI) seeking statutory recognition of General Counsel (GCs) in India as "legal advisers" under Section 129 of the Indian Evidence Act.

A letter written by SILF President Lalit Bhasin to BCI Chairman Manan Kumar Mishra has also called for attorney-client privilege, currently available only to litigating lawyers, to be extended to GCs.

"Clarification to be issued by Bar Council of India under Section 126 of the Evidence Act, 1872 dealing with professional communication. A General Counsel can be considered as a "pleader" as they plead law while advising to their employers in the corporate sector," the letter states.

Among the other reforms sought are that GCs should be included in the list of eminent mediators and arbitrators under the Arbitration Act, and that they should be allowed to represent their employers before courts and tribunals by amending Rule 49 of the Bar Council of India Rules.

Buttressing its case for recognition of GCs, SILF has pointed out that the Supreme Court in Bar Council of India v. AK Balaji has held that the practice of law includes litigation as well as non-litigation.

"General Counsel are qualified lawyers having passed the law examination as prescribed by Bar Council of India and they are practicing the profession of law, though within the corporate sector."

Bhasin in his letter has highlighted the evolving role of GCs in India. Besides handling their companies' legal issues, GCs are also involved in business strategy and decision-making processes within the organisation, the letter states. Apart from these roles, they are also involved in cross-border transactions, corporate social responsibility, business expansion and issues pertaining to new age technology, among others.

Statutory recogntion of GCs in necessary in light of global trends, and to bring more clarity and accountabilty to the role, SILF has said. Such recognition would also afford GCs professional privileges and protections, and would aid them in fighting corruption and safeguarding their companies' legal integrity, the letter states.

On attorney-client privilege, SILF points out that Section 132 of the Bharatiya Sakshya Adhiniyam (BSA) restricts advocates from disclosing any communication made by their clients, except in certain circumstances. Further, under the Evidence Act, confidential communication with legal advisers is protected.

Presently, the BCI Rules say that an advocate cannot be a full-time salaried employee of any corporation, and if he does so, he is required to inform the BCI of his status and cease practice as an advocate. According to SILF,

"The above rule creates a hurdle in extending the attorney-client privilege to a General Counsel employed in any organization, unless a clarification is issued by the Bar Council of India."

It is also pointed out that in other jurisdictions like Canada, Australia, England and Wales, Singapore, United States etc, communications between General Counsel and their employers are protected, subject to terms and conditions.

On these grounds, and given the fact that GCs have already been given informal recognition globally, SILF has urged for recognition of GCs as "legal advisers" under Indian law.