LEGAL PROFESSION & ADVERTISEMENT
India is a country having over 1.2 million lawyers. However, as stated by Llyod Pearson, a London-based Legal Directories Consultant, there is insufficient information about the practice of law by advocates in India. The primary reason for this is the prohibition on legal advertising in India. The prohibition on advertisements by legal professionals has its origin in England, founded on the Victorian notions developed during the British rule. In India, similar to UK, the legal profession is considered to be an honourable one, which is why advertising by legal professionals is cynical and not widely accepted.
The prohibition of legal advertising is based on its adverse effects on professionalism as commercialisation of the legal professional was believed to undermine the lawyer’s sense of dignity and self-worth. Other reasons for the prohibition include misleading nature of advertisements and the loss of quality in services. It is believed that advertising would lead to unhealthy competition whereby legal professionals would resort to practices such as fee undercutting and focus less on the quality of the services provided by them, in addition to incurring advertisement expenditure.
Justice Krishna Iyer has stated that, “the canon of ethics and propriety for the legal profession totally taboo conduct by way of soliciting, advertising, scrambling and other obnoxious practices, subtle or clumsy, for betterment of legal business. Law is not a trade briefs no merchandise and to the heaven of commercial competition or procurement should not vulgarise the legal profession” .
Accordingly, the initial Bar Council of India Rules had placed a complete ban on advertisements by lawyers. Subsequently in 2008, the ban was relatively relaxed and legal professionals were permitted to organise websites, which specified only their contact information, area of specialisation and qualifications. In India, various forms of indirect advertisements by legal professionals have been taking place for several years, by way of visiting cards, directory listings, seminars and felicitation ceremonies and issuing circular letters or election manifestos with name, address and profession printed on it, appealing to members of the Bar practising in lower Courts, who can recommend to clients for the High Court level. All of these activities are in contravention of the Bar Council of India Rules and would attract Rule 36.
Bar Council of India Rules
Under the Advocates Act, the Bar Council of India (BCI) has the power to make rules in order to discharge its functions under the Act, based on which, it has formulated the BCI Rules .As per the Rule 36 of the BCI Rules, an advocate is prohibited from soliciting work or advertising, either directly or indirectly, whether by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned. Even the sign board, name plate or stationery of an advocate should not 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 amended, pursuant to a resolution passed by the BCI on 30th April, 2008 before a three member bench of the Apex 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:
1. Name
2. Address, telephone numbers, e-mail id’s
3. 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
4. Professional and academic qualifications
5. Areas of practice.
Legal professionals furnishing the above-mentioned information on their websites are also required to provide a declaration that the information provided by them is true.
Judicial Approach
The Indian judiciary has made significant contribution to uphold 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, it has been held that an advocate is an officer of the Court, and the legal profession is not a trade or a business; it is a noble profession and advocates have to strive to secure justice for their clients within legally permissible limits.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 J.N. Gupta v. D.C. Singhania & J.K. Gupta, the respondent advocates had issued two advertisements in a newspaper; the first indicating a change of address on account of fire in the building where they were practicing, and the second time for shifting back to the building where their old office was located. Subsequently, they also published their name and address in the International Bar Directory under the headings “Singhania & Company”, “Firms Major Cases” and “Representative Clients”. The Court held that there was no violation of the rule against advertisement with respect to publication in the newspaper as the same was made on account of the fire, which required urgent notice of change in address to be given to existing clients. With regard to the publication in the International Bar Directory, 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; hence, was being used to advertise the firm itself.
In the case of K. Vishnu v. National Consumer Disputes Redressal Commission & Anr., it was settled that the legal profession is an administration with the end goal of the Consumer Protection Act, 1986. The Report of the High Level Committee on Competition Policy and Law, under the Chairmanship of S.V.S. Raghavan stated that “the legislative restrictions in terms of law and selfregulation have the combined effect of denying opportunities and growth of professional law firms, restricting their desire and ability to compete globally, preventing the country from obtaining advantage of India’s considerable expertise and precluding consumers of free and informed choice” . Furthermore, even the Supreme Court has held the legal profession to be covered under the definition of “industry” under the Industrial Disputes Act, 1947. From these decisions, we can conclude that legal services are becoming subject to consumer protection and trade laws of India, moving towards the inevitable path of commercialisation.
Constitutional Validity of Rules 36, Bar Council of India Rules
Article 19(1)(a) of the Constitution of India guarantees the freedom of speech and expression, the only exceptions being in the interest of sovereignty, integrity and security of the State, friendly relations with foreign states, public order, decency or morality or in relation to contempt of Court, defamation or incitement of an offence .In the case of Tata Yellow Pages, the Supreme Court of India extended protection under Article 19(1)(a) to commercial speech i.e. advertising . Subsequently, it has been held that rendering professional legal services is a business proposition, and advertisement of the same as such comes within the definition of commercial speech. The Supreme Court further strengthened the argument by observing that the right to freedom of speech cannot be taken away by placing restrictions on the business of citizens. The researcher submits that on a critical analysis of Rule 36, it does not satisfy any of the conditions specified in Article 19(2). The ban on advertisements by lawyers is not constitutionally permissible, even on the ground of “public order” under Article 19(2) as the public order has been held to be synonymous with public peace, safety, tranquillity and the like. Further, Article 19(1)(g) of the Constitution of India confers every citizen the right to choose his own employment, trade or calling, having the same reasonable restrictions as Article 19(1)(a), which is often impregnated with an implied right for availing all the mechanisms and resources for effectively carrying on the trade or occupation, including advertisement, provided it is not contrary to public interest. Rule 36, in essence is also violation of Article 19(1)(g) as a reasonable restriction on prohibiting advertisement would only exist where the advertisement is against public interest i.e. when it is immoral, obscene or presents something which goes against public morality. Hence, the researcher is of the opinion that the ban on legal advertising under Rule 36 is excessive in nature and unconstitutional, as the same is not consistent with reasonable restrictions under Article 19(2).
Conclusion
In the age of information and commercialisation, the reasons based on the ground that law is a “noble” profession cannot be sustained because consumers of legal services are entitled to obtain the best value for their investment, similar to any other service. Every litigant ought to be provided with a platform from where he can identify the most suitable legal professional.
References
Articles
1. Shivam Gomber, Right to Advertise for Lawyers, 1 UDGAM VIGYATI Vol. (2016)2. Ted Schneyer, “Professionalism” as Pathology: The ABA’s Latest Policy Debate on Nonlawyer Ownership of Law Practice Entities, 89 FORDHAM URBAN LAW JOURNAL Vol. 40 Issue1 Article 15 (2013)
3. Maya Goldstein Bolocan, Professional Legal Ethics: A Comparative Perspective, CEELI Concept Paper Series (2002)
Legislations
1. Advocates Act, 1961
2. Constitution of India, 1950
3. Model Rules of Profession Conduct, 1983
4. Solicitors’ Publicity Code, 1990
Case Laws
1. R. N. Sharma, Advocate v. State of Haryana, 2003(3) RCR (Criminal) 166 (P&H)
2. CD Sekkizhar v. Secretary Bar Council, AIR 1967 Mad 35
3. Bar Council of Maharashtra v. M. V. Dabholkar, 1976 AIR 242
4. Tata Yellow Pages v. MTNL, 1995 AIR 2438
5. Dharam Vir Singh v. Vinod Majahan, AIR 1985 P&H 169
6. Sakpal Papers v. Union of India, AIR 1962 SC 305
7. Government Pleader v. S. A Pleader, AIR 1929 Bombay 335
8. In Re: (Thirteen) Advocates v. Unknown, AIR 1934 All 1067
9. S. K. Naicker v. Authorised Officer, (1967) 80 Mad. LW 153
10. C.V. Sekkizhar v. Secretary, Bar Council, Madras, AIR 1967 Mad 35
11. J.N. Gupta v. D.C. Singhania & J.K. Gupta, BCI TR. Case No. 38/1994
12. K. Vishnu v. National Consumer Disputes Redressal Commission & Anr., (2000) ALD (5) 367
13. Srinath v. Union of India, AIR 1996 Mad 427
14. Bangalore Water Supply & Sewerage Board v. A Rajappa, 1978 AIR 548
15. O.K. Ghosh v. E.X. Joseph, AIR 1963 SC 812
16. Dalbir Singh v. State of Punjab, AIR 1962 SC 1106
Reports
1. Report of High Level Committee on Competition Policy and Law- S.V.S. Raghavan Committee, 2000
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