Introduction:
Advocates in India are not allowed to advertise; even soliciting work is barred by the Bar Council of India. The reason behind this being that advocacy is a noble profession and advertising or even solicitation may hinder the image of the legal profession and it would not be fair in the eyes of law. The history of this law is based on old British Common Laws, it is believed that people can be misled by advertisements and this would raise questions on the dignity of this honorable profession. However, this has also resulted in a big barrier for advocates to reach out to the public at large and advertise their skills. The laws relating to the prohibition of advertisement and solicitation by legal professionals in India are provided in the Advocates Act 1961 and Rules by the Bar Council of India.
Laws in India
The Advocates Act 1961 gives the Bar Council of India power to make rules regarding the standards of professional conduct of advocates in India. The Bar Council has made rules using this power to bar the advocates in India from involving in any kind of advertisement.
The Advocates Act 1961
7. Functions of Bar Council of India.― 1 [(1)] The functions of the Bar Council of India shall be― 2 * * * * * (b) to lay down standards of professional conduct and etiquette for advocates;
49. General power of the Bar Council of India to make rules.― 1 [(1)] The Bar Council of India may make rules for discharging its functions under this Act, and, in particular, such rules may prescribe—
(c) the standards of professional conduct and etiquette to be observed by advocates;
“Rule 36: An advocate shall not solicit work or advertise, either directly or indirectly, whether by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing or inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned. His sign-board or name-plate should be of a reasonable size. The sign-board or name-plate or stationery should not indicate that he is or has been President or Member of a Bar Council or of any Association or that he has been associated with any person or organization or with any particular cause or matter or that he specializes in any particular type of worker or that he has been a Judge or an Advocate General.”
Rule 36 of the Bar Council of India prohibits various kinds of advertisement by advocates whether it is directly or indirectly. It is a complete bar from using any kind of advertisement for professional gain. Even the name or photograph of the advocate in a case must not be revealed. Advocates while putting up a sign-board or name-plate must keep in mind that it is of a reasonable size and it does seem like an unnecessary advertisement by putting up a big hoarding. The name-plate should not include anything which would indicate that the advocate is or has been a President or Member of the Bar Council or any association. Advocates should also restrict themselves from referring to any kind of involvement with an association or person. He should also not mention that he was previously a Judge or an Advocate General.
These are the restrictions and guidelines that an advocate must keep in mind before involving in any kind of advertisement. However, in 2008 there were some major changes to the laws and rules of the Bar Council of India.
Amendment
In the year 2008, the judgment in the petition filed by Mr. V B Joshi challenging Rule 36, Section IV of Bar Council of India was given by the Apex Court. This was a three-judge bench headed by Justice S H Kapadia.
The Rule was amended in order to let the advocates advertise on the internet using any website of their choice. However, according to the amended rules of the Bar Council of India advocates could provide the following information on their respective websites:
- Name of the advocate
- Their telephone numbers, address, e-mail ids
- Educational and Professional qualifications
- Areas of Practice
- Enrollment number, date of enrollment, name of the State Bar Council where they were originally enrolled, present State Bar Council where they are enrolled and name of the Bar Association of which the advocate is a member.
This was a major reform to the Rules of Bar Council of India as it would help many lawyers to build trust with their clients and also help the common people seeking legal help.
International Laws
Position in United States of America
Until 1977 laws regarding the advertisement of legal services in the U.S were somewhat similar to those in India. In the case of Bates v. State Bar of Arizona, these laws were amended. It was held and until the advertisements were true and not misleading the public the advocates could advertise on different platforms.
ABA Model Rule 7.1: Communications concerning a Lawyer’s Services
Information About Legal Services
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
Position in United Kingdom
The position of laws in England relating to advertisement by legal professionals was changed in 1970. Advocates were now allowed to advertise their legal services but the advertisement should be honest and the details provided by the advocates should not be misleading and corrupt. The advertisement should not be projected in a way that would bring shame to the noble legal profession. The irony in this case shall be noted that the Indian Laws which were itself taken from old British Laws is still in function whereas the laws in the UK have changed keeping in my mind the reforms and needs of the present times in this profession.
Critical Analysis
In the legal profession, it has always been observed that advertisement is something that demeans the profession. People should not be lured by the big banners, pamphlets to seek legal expertise from an advocate but rather seek help from their conscience and faith. This would have been true in the old days when the advertisement was not seen as something which would be correct for the advocates to use simply because this profession was an honorable one and advertising would somehow bring humiliation to the justice system. But now the situation is completely different, in the present scenario advertisement has become the most essential part in any field. These advertisements not only promote one’s skills and expertise but also give the people a fair chance to make the right choice. The legal profession needs to provide that chance to the people to make correct choices based on the information provided by the advocates. The problem occurs when there are no guidelines or limit set to the extent of advertising and the promises which are made in it seems misleading or not honest on the face of it. By taking examples of other countries as mentioned above, India could also try to bring more changes to the old laws of bar on advertising and solicitation.
By the amendment of 2008, advertisement on the internet has been allowed by the Bar Council of India. While this was a welcoming decision, it should also be observed that there should not be any difference between modes of advertisement because permitting to advertise on the internet and not on other mediums does not seem fair and hence contradicts its motive. When advertisement is allowed then making a difference in platforms of advertisement is not helping the people. Those who do not have access to the internet will still face the same issues as before. Instead, a rule that allowed advertisement on any platform but according to certain guidelines would have been a much more effective decision and it would have also helped the advocates as well as the common masses.
The other major concern which arises is that the new legal professionals who have just started with the practice do not get much exposure because they are not able to build a relationship with the people. Advertising for them could bring new opportunities as people can now see their qualification, their field of expertise, and their skills as legal professionals. The amendment in 2008 has surely helped a lot but then the question is how many people have access to the internet in India. This could not be a problem for senior advocates or big firms and new advocates, this seems as a big barrier.
The common people always face a huge dilemma as to who should they for legal advice and help. Even the foreign companies who want legal help and advice on Indian laws do not get enough options because of the lack of advertising. Instead of asking other people and rely on their opinion, people should make this decision solely based on their opinion and this could not only happen when they have access to information and qualification of advocates. Advertisement can make this easy for people to make a balanced choice and build trust between common people and legal professionals. With proper guidelines and rules, there can be a check and balance system for the advertisement in the legal field.
Constitutional Validity
The Constitution of India provides Freedom of speech and expression[1] and this freedom can be said to be violated by Rule 36 of the Bar Council of India. Advertisement is said to be included in commercial speech and this has also been held in many previous judgments.
The freedom to practice any profession or to carry on any occupation, trade, or business provided in Article 19(1) (g) is also violated by this Rule as it restricts the ambit of business or profession and puts unnecessary restrictions.
Case Laws
Tata Yellow Pages v. MTNL[2]
The Supreme Court of India in this case held that commercial speech is included in freedom of speech and expression and advertisement is also a major part of commercial speech.
Dharamvir Singh v. Vinod Mahajan[3]
In this case, it was held that the legal profession also deals with business, and hence commercial speech will include advertisement.
Conclusion
The laws in India relating to advertisement and solicitation by advocates need to be revised to make access to legal professionals an easy and trustful decision. The past amendment of 2008 was a great initiative but there are still many reforms to be made in these laws. Advertisements that are honest and helpful for the public will not make the legal profession any less of a noble profession rather it will help in gaining the trust of the people. India is currently in a position of global level and very far away from isolation; changes to these laws, will not only help the citizens but also foreign companies and individuals who are in a need of legal advice. There are many pros and cons to the laws allowing advertisement but with proper guidelines by the Bar Council, it can surely be checked upon.
References:
[1] Article 19(1)(a)
[2] 1995 AIR 2438, 1995 SCC(5) 139
[3] AIR 1985 P H 169 Bench: J Gupta
Other Sources:
- Advocates Act, 1961
- Bar Council of India Rules, 1975
- Bar Council of Maharashtra v. M.V. Dadholkar, 1976 AIR 242
- Indian Council of Legal Aid and Advice v. Bar Council of India [(1995) 1 SCC 732]
- V.B. Joshi v. Union of India, 2008
- American Bar Association Model Rules
- Bates v. State Bar of Arizona, 433 U.S. 350 (1977)
- Solicitors Publicity Code, 1990
- Tata Yellow Pages v. MTNL 1995 AIR 2438
- Dharamvir Singh v. Vinod Mahajan AIR 1985 P&H 169
- Constitution of India, Article 19 (1) (a) and Article 19 (1) (g)
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