By Dr Swati Jindal Garg
In a landmark development, Union Minister of State for Law and Justice, Arjun Ram Meghwal, recently announced that the Advocates Act, 1961, is slated for amendment, potentially bringing beneficial provisions for General Counsels. The minister made the announcement at a conference hosted by the General Counsels’ Association India (GCAI), titled “Rethink, Redefine, and Re-evolve the Legal Profession in India.”
Demand For Legal Recognition
The GCAI is advocating for statutory recognition for General Councils, similar to that granted to practicing advocates under the Advocates Act. While the term “General Counsel” is common in the business world, its meaning and scope are often misunderstood. A General Counsel is the chief legal officer of an organization, responsible for providing legal advice to executives, overseeing all legal matters, and ensuring compliance.
A Vital Cog In The Wheel
The role of General Counsels vary depending on the organization’s size. In smaller companies, the General Counsel may be the sole legal professional, handling all legal aspects. In larger organizations, they typically lead a team of lawyers specializing in areas like litigation, contracts, intellectual property, and regulatory compliance.
Regardless of scale, the General Counsel is a crucial member of the management team, guiding the company towards its goals within legal boundaries. Beyond managing legal budgets and mitigating risks, General Counsels work closely with executives to identify potential legal issues and develop strategies. They are often involved in mergers and acquisitions, corporate governance, and other strategic initiatives.
A core responsibility is advising management and departments on diverse legal matters, including corporate law, contracts, labour law, and transactional issues, while ensuring compliance with all legal and regulatory requirements. The role of the General Counsel has evolved significantly, now encompassing strategy and risk management. General Counsels manage operational and strategic legal risks, pre-litigation and litigation, and oversee crisis management.
A Dedicated Legal Partner
General Counsels play a vital role in strategic planning, advising on legal implications of mergers, acquisitions, joint ventures, and other initiatives. Essentially, the General Counsel leads the legal team, aligning it with the organization’s objectives. Successful General Counsels possess excellent communication skills to explain legal complexities to non-legal professionals. They combine strong legal expertise and research skills with emotional intelligence, sound judgment, business acumen, and the ability to make critical decisions and provide strategic legal counsel. A General Counsel is akin to a dedicated legal partner, offering expert advice and efficiently managing legal needs, empowering businesses to navigate challenges and seize opportunities.
Is General Counsel An Advocate?
The minister’s announcement raises a crucial question: What is the difference between a General Counsel and an advocate? While both are legal professionals, they differ significantly.
A General Counsel typically holds an LLB degree, but an advocate is a lawyer who has joined the State Bar Council, passed the All India Bar Council examination, and obtained a license to practice in court. An advocate represents clients in court, whereas a General Counsel provides legal advice within an organization. Every advocate is a lawyer, but not every lawyer is an advocate. General Counsels in India are often treated as corporate employees, excluded from privileges like appearing in court or maintaining active bar enrollment.
The lack of recognition under the Advocates Act, 1961, and Bar Council regulations is a primary concern for General Counsels. They are required to surrender their bar enrollment upon assuming in-house roles, which they see as undermining their status and depriving the legal profession of valuable expertise.
Wide Role In Other Countries
While India’s legal system is rooted in common law, it lags behind other common law countries in recognizing the vital role of General Counsels. Nations like the US, UK, Canada, Australia, Singapore, and Hong Kong recognize General Counsels as essential, with regulatory frameworks acknowledging their dual roles as legal advisors and business enablers.
These countries often permit General Counsels to appear in court, provide privileged legal opinions, and function as integrated members of the legal ecosystem. This disparity in India fails to reflect the realities of modern corporate practice, where General Counsels are indispensable in managing risks, ensuring compliance, and aligning legal strategies with business goals.
Proposed Reforms For GCs
General Counsels are no longer confined to advisory roles; they shape corporate governance, drive compliance, lead sustainability initiatives, and manage crises, including litigation, data breaches, and regulatory scrutiny. The lack of recognition for General Counsels under the Advocates Act and BCI regulations not only limits their professional standing, but also their scope of practice, depriving the legal profession of valuable expertise. The proposed reforms include amendments to the Advocates Act to explicitly recognize General Counsels as advocates, allowing them to retain bar enrollment, a separate Bar Council framework for them, mandatory Continuing Professional Development (CPD), and granting privilege for legal advice to ensure confidentiality and align with global standards.
These changes would finally give the role of General Counsel the recognition it deserves.
—The author is an Advocate-on-Record practising in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi