Abstract
Indian law treats law as a noble profession, not as a commercial business, so legal advertising has long been banned. However, in the light of evolving legal landscapes and digital advancements, the restriction is raising issues around access to legal services and transparency and competition. The intention of this research paper is to critically analyse and examine the compel ling grounds for a ban on advertisements by legal practitioners, history, purpose and implications of the ban and the nature and scope of prohibition with judicial interpretation and statutory provisions including its constitutional validity. Moreover, comparative shootings in the plates of the legal advertising regulations in the United Kingdom and the United States.
Keywords
Legal advertising, Bar Council of India Rules, Constitutional validity, Professional ethics, Rule 36,
Introduction
Legal advertising is the advertisement of legal services provided by a lawyer or a law firm to attract potential clients. Legal advertising can take various forms of media including printing, mailing, television and online advertising. There are approximately 1.5 million registered advocates (lawyers) in India, according to estimates by the Bar Council of India.
However, as stated by Llyod Pearson who is a London-based Legal Directories Consultant, there is insufficient information about the practice of law by advocates in India. and one of the significant reasons of the same is the ban on advertising by lawyers in India. Legal advertising is when legal experts promote the services, which are offered by them through the court of law, implying the legitimate administrations provided by legal counsellors.
The similar ban on advertisements by legal practitioners is rooted in Victorian ideas in England, which were instituted during the British rule. The legal profession is an honourable profession in India too, as it is in UK and thus advertising by legal professionals is cynical and not widely accepted. The legal ban on advertising derives from its negative impact on professionalism as it was considered that the commercialisation of the legal profession would damage the lawyer’s sense of dignity and self-worth. Other reasons for offensive were misleading of ads and loss of quality in services. It is thought that advertisements will result in cut-throat competition and lawyers will try to outprice their competitors in order to attract more customers, for which they will have to spend on advertisements and will pay little or no attention to the quality of services offered by them. Even Justice Krishna Iyer has opined that “the canon of ethics and propriety for the legal profession completely forbids conduct by way of soliciting, advertising, scrambling and other obnoxious practices, subtle or clumsy, for betterment of legal business. It is not a trade, briefs are not goods, and to the heavens of commercial competition or procurement should not vulgarise the legal profession” Consequently, the original BCI Rules had embargoed all advertisements by lawyers. Then in 2008, the ban was somewhat eased and legal professionals were allowed to organise websites, which described just their contact particulars, area of expertise and credentials.
Indirect advertisements of the legal fraternity over a few decades, in India have been prevalent through visiting cards, directory listings, advertisements in directories of legal professionals, conducting seminars and also holding felicitation ceremonies followed by issuance of circular letters or election manifestoes with name, address and profession printed on it, for Bar members practicing in the lower Courts, to recommend to the clients to approach them for the High Court level. All these activities are against the BCI Rules and would warrant Rule 36.
Research Methodology
In order to carry out the study, the researcher adopted the doctrinal research methodology in the compilation, organization, interpretation and systematization of the primary and secondary sources. The analysis draws upon various sources such as court rulings, academic publications, and reputable online materials.
Review of Literature
Several scholars from their differing perspectives and viewpoints have examined and analysed the issue of legal advertising . Some of them are:
According to Maya Goldstein Bolocan, in “Professional Legal Ethics: A Comparative Perspective,” the rationales for the prohibition of legal advertising derive from its perceptional negative effects on the legal profession because commercialization will undermine the lawyer’s dignity and self-esteem. Bolocan also points out that after the Monopolies and Mergers Commission in 1970 and the Office of Fair Trading in 1986 reviewed the ban on legal advertising in the UK, the merits of advertising were highlighted and the ban was eventually lifted.
Ted Schneyer, in his article “‘Professionalism’ as Pathology: The ABA’s Latest Policy Debate on Nonlawyer Ownership of Law Practice Entities,” examines how the notion of professionalism in legal practice has changed and how the prohibition on advertising was part of the professionalism concept. He contends that traditional ideas about professionalism must be reconsidered in context of shifting market dynamics
The Right to Advertise for Lawyers by Shivam Gomber explores the multifarious nature of indirect advertisements that lawyers/advocates have been indulging in for several years in India in violation of the BCI Rules. Gomber says he’s sceptical that such restrictions work these days.
The Report of the High Level Committee on Competition Policy and Law (S.V.S. Raghavan Committee, 2000) said, “The legislative restrictions in terms of law and self-regulation have the combined effect of denying opportunities and growth of professional law firms, restraining their desire and ability to compete globally, depriving the country of gaining advantage of India’s considerable expertise and denying consumers of free and informed choice.”
M. L. Sarin and Harpreet Giani, in “Prohibition of Advertisement in the Legal Services Sector,” lay down the emphasis that in India, lawyers are not allowed to advertise under the Advocates Act and rules of Bar Council and clients have to depend on word of mouth from acquaintances. It limits public access to competent legal representation in this important area of the law. Unlike other professions, lawyers do not allow communications with respect to their expertise, fee details, or specialties, so litigants are often at a loss when it comes to making a decision. The legal system must embrace “infortising”—an online advertising platform—where clients can find out about lawyers and assess their effectiveness. India should thus look at the examples of different nations, which provide structured lawyer directories and quality benchmarks, to make the legal profession more accessible, accountable and competitive, and especially with the foreign legal practitioners knocking the doors.
Method
Regulatory Framework Under Bar Council of India Rules
The Bar Council of India (BCI), under the Advocates Act,1961 has the power to make rules in order to discharge its functions under the Act, based on which, it has formulated the BCI Rules.
Rule 36 of the BCI Rules:
states that an advocate shall not solicit work or advertise, either directly or indirectly, by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing newspapers with inspirations for publication of photograph of the advocate for publication of cases in which he has been engaged or concerned. Not even the sign board, name plate or stationery shall indicate that he is or has been the President or Member of a Bar Council or of any association or that he has been associated with any person or organisation or with any particular cause or matter or that he specialises in any particular type of work or that he has been a Judge or an Advocate General. However, in 2008, the rule was modified following a resolution passed by the Bar Council of India on April 30, 2008, and presented before a three-member bench of the Supreme Court. According to the amended Rule, advocates are allowed to furnish information on their websites, in conformity with the Schedule, as per which the following information can be furnished on the websites:
- Name
- Address, telephone numbers, e-mail id’s
- Enrolment number, date of enrolment, name of the State Bar Council where originally enrolled, name of the State Bar Council on whose roll they currently stand, name of the Bar Association of which the advocate is a member.
- Professional and academic qualifications
- Areas of practice.
Legal professionals who are presenting the above-mentioned information on their websites are also required to provide a declaration stating that the information provided by them is true.
Judicial Perspective on Legal Advertising Restrictions
The Indian judiciary has played a crucial role in preserving the dignity of the legal profession and ensure unimpeded performance of lawyers’ duties towards the Court. In the case of R. N. Sharma, Advocate v. State of Haryana, the Court emphasized that an advocate is an officer of the Court, and the legal profession is a noble vocation, not a commercial business. Advocates have to strive to secure justice for their clients within legally permissible limits and boundaries.
As explained by the Madras High Court in 1967, advertisements by lawyers is regarded as improper conduct because it undermines the high standards which lawyers uphold and set up for themselves to maintain the honour, dignity and position of the noble profession or the stature of the profession. Additionally in a country like India, where in a large segment of the population is illiterate, which fosters a risky situation whereby unethical lawyers may exploit and take advantage of the public. Given that law is traditionally a profession with the goal of public service, such exploitation is viewed against its fundamental principles.
The key issue, however is defining what constitutes as advertising under the legal profession. Except the rules of BCI, various judgements by the Indian Courts have interpreted this:
In the case of In Re: (Thirteen) Advocates v. Unknown, it was held that publishing articles in newspapers, where the writer describes himself as an advocate practicing in Courts is a cheap way of endorsing one’s services.
The Madras High Court, in S. K. Naicker v. Authorised Officer has held that a sign board or a name plate of an advocate should be of a moderate size and that writing articles for publication in newspaper under an advocate’s signature is a breach of professional etiquette as both the actions amount to unauthorised legal advertising.
In the case of Government Pleader v. S. A Pleader, it was held that even sending a post card providing only an advocate’s name, his address and description would amount to advertisement resulting in violation of professional standards of conduct for advocates. In another case, the Madras High Court held that even under the name of election manifestos, an advocate is prohibited from promoting their name or engaging in advertising in the form of announcements and canvassing.
In the case of J.N. Gupta v. D.C. Singhania & J.K. Gupta, the respondent advocates had published two advertisements in a newspaper; the first announcing a change of address on account of fire in the building where they were practicing, and the another accounting for shifting back to their original office. Subsequently, they also published their firm’s name and address in the International Bar Directory under the headings “Singhania & Company”, “Firms Major Cases” and “Representative Clients”. The Court ruled that the newspaper ads did not violate the ban on advertising, as they were necessary for informing clients. However with regard to the directory listing, it was held that publication in any manner, either in National or International Bar Directory would not constitute a violation of Rule 36 if it is done with the purpose of giving information of address or telephone numbers of advocates. However, in the instant case, it was found that the publication was made to give publicity to the fact that the law firm had dealt with important cases and had eminent clients deemed; an attempt to promote the firm, thus constituting unauthorized advertising.
Legal Advertising Regulations in the United States of America
Until 1977, the position of USA was quite similar to that of India related to the rules on legal advertising. Ordinance 27 of the Professional Ethics of American Bar Association26 stated that it was unprofessional of lawyers to engage in advertisement of their services. However, it changed and has now become a constitutionally protected right after the decision of the US Supreme Court in Bates v. State Bar of Arizona. In this case, two attorneys set up a law firm to assist and offer legal services to those who did not qualify for legal aid, but still could not otherwise afford legal services. Though they admitted that their ad violated the existing rules but advertising was the only practical way for them to reach clients. However, the Supreme Court of USA held that complete ban on legal advertising was unconstitutional, as it restricted free speech under the First Amendment i.e. freedom of speech and expression. This decision marked a turning point and was the American case recognizing the right of attorneys to advertise, while allowing States to regulate and oversee advertising by legal professionals.
Advertising by legal professionals in USA is currently governed by The Model Rules of Professional Conduct, 1983. As per the Rules, a lawyer may advertise his services through written, recorded or electronic communication, including public media, subject to the following conditions:
- No false or misleading communication should be made about the lawyer or the lawyer’s services.
- No lawyer shall solicit professional employment in person, live telephone or electronic contract when a significant motive is the lawyer’s pecuniary gain.
Legal Advertising Regulations in the United Kingdom
Legal advertising was initially banned in UK due to traditional Victorian-era views on the profession. However this changed after the review by the Monopolies and Mergers Commission in 1970 and the Office of Fair Trading in 1986, whereby the advantages and benefits of letting legal professionals advertise were highlighted. In the UK, the law governing legal advertising is contained under the Solicitors’ Publicity Code, 1990, which has been amended and published in 2016 according to the changing needs of the hour.
Chapter 8 of the code ensures that legal advertising in the UK is transparent as well as informative and the lawyers must not use misleading publicity but should provide sufficient information to ensure that clients and others can make informed choices, thereby upholding their right to information.
Further, Every letterhead, website, and email from a legal professional must state: “Authorised and regulated by the Solicitors Regulation Authority (SRA),” along with the licensed name and SRA registration number.
The restrictions on advertising are limited by the SRA. Unsolicited approaches in person or by telephone in order to publicise practice is prohibited. Legal professionals are also allowed to publish their fees provided the same is not pitched at an unrealistically low level. However, details of fees cannot be advertised without making it clear that additional charges may be payable.
Constitutional Validity of Rules 36, Bar Council of India Rules
Bar Council of India Rule 36, prohibiting legal advertising, is unconstitutional because it contravenes Article 19(1)(a) (freedom of speech and expression) and Article 19(1)(g) (freedom to practice any profession). The Supreme Court has identified advertising as commercial speech and a necessary part of professional services. As Rule 36 fails to satisfy the reasonable restrictions enumerated in Article 19(2) and is not in the public order or morality interest, the researcher submits that the prohibition is excessive and legally flawed.
Suggestions
According to the researcher’s opinion, legal advertising should not be entirely prohibited. Instead, it should be allowed under a regulated framework, provided it serves to enhance legal awareness and enables both existing and potential clients, to evaluate the expertise and competence of the legal professionals.
The BCI should lay down h clear regulations regarding the content and format of permissible legal advertising. This fulfils the need for advertising, while simultaneously implementing safeguards to prevent unethical or misleading practices. The advantage of such a mechanism is that it would enable the BCI to uphold its regulatory authority in preserving the high standards of the profession, while also ensuring a fair platform for advocates to promote their services and enabling clients to access relevant information about legal professionals.
The researcher suggests that the BCI regulate legal advertising by:
- Expanding permitted advertising modes to enhance accessibility
- Permitting additional information while ensuring advertisements remain truthful, avoid superiority claims, and exclude client-related information.
- Establishing a monitoring mechanism
- Enforcing compliance through penalties.
Conclusion
Although the law against legal advertisement in India is based on the British Victorian model, our law is tending to resist change since we have not adapted the same in response to the evolving nature of legal services. A close examination of the implications of Rule 36 would bring absolutely ridiculous conclusions since it does not leave room for business cards, seminars, conferences, ceremonies, directory entries, issuing circulars, election manifestoes, address and court of practice and even oral communication of the fact that a person is an advocate. Although there are some disadvantages of allowing advertising by legal professionals, we have to take into account the fact that the indirect forms of advertising are currently occurring at a large scale, because of which the profession is already under the disadvantages of legal advertising even when advertising has not been allowed. But because of the ban on direct advertising, we cannot avail ourselves of the advantages of legal advertising. In the era of information and commercialisation, the arguments grounded on the soil that law is a “noble” profession cannot be maintained because legal service consumers are entitled to receive the maximum value for their investment, as in any other service. All litigants should be given a platform from where he can find the most appropriate legal expert.
Author’s Details:
Manitra Sharma
Manipal University Jaipur
References
1. Goldstein Bolocan, M. (2002). Professional legal ethics: a comparative perspective. CEELI Concept Paper Series.
2. Schneyer, T. (2012). Professionalism as Pathology: The ABA’s Latest Policy Debate on Nonlawyer Ownership of Law Practice Entities. Fordham Urb. LJ, 40, 75.
3. Singh, M. I. K. ADVERTISING BY LEGAL PROFESSIONALS
4. Zacharias, F. C. (2005). What Direction Should Legal Advertising Regulation Take. In Prof. Law. Symp. Issues (p. 45).
5. CHRISTOPHER FINDLAY, PRIORITIES AND PATHWAYS IN SERVICES REFORM- PART II: POLITICAL ECONOMY STUDIES 89 (2013)
6. RUPA CHAND, PRALOK GUPTA, GLOBALISATION OF LEGAL SERVICES AND REGULATORY REFORMS: PERSPECTIVES AND DYNAMICS FROM INDIA 81 (1st ed. 2015)
7. Report of High Level Committee on Competition Policy and Law- S.V.S. Raghavan Committee, 2000
8. Bar Council of Maharashtra v. M. V. Dabholkar, 1976 AIR 242