Before you feel that this is yet another article on the surrogacy bill, let me give you a pleasant surprise that it is not. This article tends to share the memoirs of an ‘In House Counsel’ and derive an analogy with the concept of ‘Surrogacy’. The word “Surrogacy” as defined in Random House Webster dictionary means “a state of being a person appointed to act for another”

Indian legal system do not recognize the role and contribution of In House Counsel. Note in English system ‘In House Counsels are considered as Solicitors and are registered as such. Indian System moved out of the distinction between a solicitor and a barrister, with the passing of an Advocates Act, and Bar council forgot to recognize the role of In House Counsel ever since, rather they have taken an extreme view of considering the In House Counsel as no longer lawyers in practice. The question arises if In-house Counsel are no longer in practice so what they are doing ‘in house’.

The scope of legal work of In House Counsel is broader than in private practice and involves both straightforward legal tasks as well as proactive risk management. It often requires familiarity with a variety of areas of the law, including contracts, intellectual property, labor/employment, litigation, tax, competition, Information Technology Act, companies Act, criminal law, corporate/securities, laws on confidentiality and privacy, among others. The position also requires business acumen. By using their knowledge of a company’s business and its corporate culture, in-house counsel operate at a lower cost than outside attorneys. They proactively assess and manage risks and deal with the routine legal matters a corporation confronts. Then, when necessary, In-House Counsel leverage the use of outside attorneys by focusing the scope of outside research and work.

It is also interesting to note that, before any external counsel is engaged a lot of home work and strategizing occurs at the clients end in house, where the role of the In House Counsel is instrumental, not only from the perspective of understanding the issue and advising its ‘in house clients’ on the possible legal ramification and/or solutions, but also spear heading the strategy with the external counsel and getting the desired results through constant guidance on facts and law and triggering the discussion to reach its logical conclusion. Nor does it add up to their achievements as a legal person, it doesn’t even adds up to their experience.

Irony is that while the so called advocates in practice, are immune to mis judgment on the grounds of errors of professional judgment the same privilege is not available to the In House Counsel, since their terms of service are not governed by the Bar Council rules but by an employment contract. Not dwelling into the commercial impact of it, this straight away means that the luxury of the scope for professional / human error is much less for an In House Counsel and certainly impacts their carrier prospects.

In USA, In House Counsel are responsible for a wide range of legal and business duties (same as in India) and hence are considered at par with their external counsel.

In most of European Countries, there is clear distinction between an In House Counsel and the private practice for the reasons that an In House Counsel is not required to be as qualified as an attorney in private practice. In European countries where this division exists, there are different educational and qualification requirements. An individual may serve as an in-house legal advisor without receiving training in an apprentice program and without taking a Bar exam or being a member of the Bar in their jurisdiction. This is clearly not a case in India, where an In House Counsel is not only expected to clear the law exams (LLB) run by Bar Council, but also registered at the BAR and in some cases it is a necessary requirement for a job profile that he also holds a dual qualification of a accompany secretary to be eligible to be hired. Thus in India the employment standards of In House counsels are in fact higher than the private practitioners. Yet the Bar considers ‘In House Counsel’ to be not in practice.

It is interesting to note how this impacts the corporates and the business community in India, while the communication between an external attorney and a client, including a corporation, is privileged and protected from discovery when the purpose of the communication is to seek or receive legal advice. This rule applies in cases of communication made to an outside attorney. It is debatable though whether the communications with In-House Counsel would be considered as privileged or protected in same manner in view of the fact that Bar council do not recognize Indian In House Counsels in practice. This can create confusion because In-House Counsel are often involved in business tasks that involves access to far more confidential and privileged data/ information as a part of their legal duties which won’t ideally be shared with the external counsels. Thus the need for a client attorney privilege are more relevant in case of In House Counsel, for which they need to be recognized to be in practice by the Bar Council of India.

Within the organization they are used as a fire fighter and an ultimate defense unit but in terms of compensation and perks they are treated as support staff. The challenge lies in the fact that when the Bar council and their own peers forget to recognize them, why would the non-legal section of the society really care.

Thus it appears that the “When the game ends, both the king and the pawn goes into the same box”, doesn’t hold good for ‘In House counsel’, since their contribution in the entire deal gets either credited to someone else or is simply forgotten. Thus I ask this question to myself as to whether the Indian ‘In House counsel’ are the “Surrogate Mothers of Indian Legal System”.