Introduction:
India is a country with more than a million practicing lawyers, certainly making it one of the biggest contributors to the global legal business. Nevertheless, the commercialization of the legal profession In India has always been discouraged by the legislature of the country, which includes the right to advertise. Hence, in India, advertising in the legal profession is prohibited.
This prohibition attempts to prevent any lawyer from influencing any prospective client seeking redressal within the legal system also while preventing any unhealthy competition between legal professionals, which might lead to a decline in the quality of legal services. Lawyers are considered as social engineers in society, who bring about social advancements and development. But unfortunately, such restrictions lead to an insufficiency of information on the market regarding India’s legal practice.
This paper looks to critically analyze the current set of prohibitive Guidelines of Advertising for Lawyers set by the Bar Council of India and the general stance taken by the legislature towards the subject with comparative positions of law from across the globe. Conclusively, providing the advantages and disadvantages of the varied approaches taken on the subject.
Advertisements have an adverse effect on legal professionalism. This can lead to very real harm, as a lack of professionalism can undermine a lawyer’s sense of dignity and self-worth. Other reasons include the misleading nature of the advertisement and the loss of quality in services. Justice Krishna Iyer, in the case of Bar Council of Maharashtra v. M.V. Dadholkar[1], 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 clumsiness, for the betterment of the legal business. The law is not a trade, briefs no merchandise and to the heaven of commercial competition or procurement should not vulgarise the legal profession”.
This perception about the prohibition stems from the very fact that the legal profession is considered as a noble profession. The prohibition was relaxed in the year 2008, when the Bar Council of India passed a resolution to the effect that lawyers and the law firms were allowed to have their website with their contact information, qualification, and area of specialization, until then, there was a blanket ban on the advertising.
Historical Origins
India has an extensive and rich legal history. This prohibition of advertising stems from the old Colonial British Common law notion along with traditional Indian values of the Rig Vedic era that the legal profession is a “noble profession.” Though historically, the ban on advertising has been attributed to being originated in England, multiple debates are surrounding its origins. It has been suggested since that advertising and solicitation were usually understood as identical, it is detailed that this practice of ban on advertising was derived from Common law crimes of champerty, and common barratry. Though the conception of the legal profession being known as the “noble profession” ensued excessively stringent laws and restrictive guidelines while being justified on the grounds of “dignity of the profession”.
Justice Krishna Iyer has famously quoted, “the canons of ethics and propriety for the legal profession totally taboo conduct by way of soliciting, advertising, scrambling and other obnoxious practices” taking a strong stand against the practice of advertising for lawyers. There have been numerous judgments over the years emphasizing the nobility of the legal profession, such as the case of Indian Council of Legal Aid v. Bar Council of India[2], where the Supreme Court highlighted the duty of a lawyer ineffective administration of justice while abiding by the Code of Conduct of the noble profession. Also stating that the legal profession is empty without its ethics and moral ideals
As given under Section 49 of the Advocates Act, the Bar Council of India (BCI) has the right to make new rules and amend pre-existing laws under the Act to discharge its duties as given under the BCI Rules[3] . Rule 36 of the Bar Council of India Rules specifically states that lawyers and law firms cannot directly or indirectly advertise their practice, either through online or offline methods.[4]
It further lays down certain guidelines to be followed and certain exceptions available to lawyers under the rule. There are even restrictions on the display of the person’s title or designation on their signboard/nameplate. Earlier to the 2008 amendment of the Bar Council of India Rules, there was a strict and complete ban on any form of advertising for lawyers and law firms. Soon after the passing of the 2008 amendment, the rule on advertising was mildly liberalized.
The rule under Section IV of the BCI Rules was amended after a resolution[5] was passed in front of a three-judge panel of the Supreme Court. Hence, according to the newly amended rule 36 along with the relevant schedule, the furnishing of certain information by advocates and law firms on their website were allowed as per rule 36 of the BCI Rules. Rule 36 also further goes on to state that such information provided cannot be used in any form to aid or to make available any illegal practice of law by any legal authority.
Judicial Standing on the Ban of Advertising
Over the years, the Indian Judiciary has always maintained its stand that the legal profession is one of the utmost nobilities. The lawyers must act in accordance with the honor and dignity the profession carries. Many High Court and Supreme Court judgments[6]over the years have maintained that the objective of the legal profession is public service and since a majority of the Indian population is illiterate about the machinery of the courts, the lawyers must act responsibly. They were further stating that allowing advertising for advocates could lead to exploitation of the public in certain situations.
One of the biggest landmark judgments based on Rule 36 of the BCI Rules is the Supreme Court case of Bar Council of Maharashtra v. M.V. Dabholkar and Others.[7] It stated that Rule 36 has fairly set out rules of professional conduct for the lawyers to follow, though canons of ethics existed before the implementation of the rule. Professional ethics weren’t just born out of Rule 36 but were indeed bought up along with the organized Bar, while morality was born with the civilized society.
Justice Krishna Iyer in the case 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 clumsiness, for the betterment of the legal business. The law is not a trade, briefs no merchandise and to the heaven of commercial competition or procurement should not vulgarise the legal profession”[8].
Though as stated before, post-2008, certain restrictions were relaxed. There have been certain cases such as the Bar Council of India v. A.K. Balaji and Others[9] which have clearly stated that advertising directly or indirectly is a serious breach of misconduct by the advocate. Nevertheless, the constant question that arises is that of, ‘what constitutes as an advertisement’ by a lawyer or a law firm.
Over time many lawyers have advertised or tried to circumvent the BCI Rules by advertising through visiting cards, pro bono work, seminars, and circular letters, etc[10] . There have been various judgments by the Indian Courts trying to define an advertisement and to prevent lawyers from exploiting loopholes under the BCI Rule for many years now.
In the case of the State of Uttar Pradesh and Anr. v. Johri Mal[11], the Court had to answer the question of whether the submission of biodata pursuant of notice would amount to advertising or soliciting under Rule 36 of the BCI Rules[12] . This was answered in the case of B. Rajeswar Reddy and Ors. V. K. Narasimhachari and Ors,[13] the Court stated that “filing of the application, pursuant to a notification issued by the Metropolitan Sessions Judge, by the advocates offering their services for the post of Public Prosecutor and Additional Public Prosecutor would not by itself amount to solicitation of work within the meaning of Rule 36 of the Rules[14].
Whereas in the case of Government Pleader v. S. A. Pleader, it was stated that an advocate posting a card providing his name, address and designation would be considered as an advertisement, thus violating professional conduct[15]. Newspaper articles and advertisements where the writer labels himself as an advocate practicing in the courts have also been banned[16].
Another landmark judgment of J.N. Gupta v. D.C. Singhania & J.K. Gupta it was stated that publications made in the National or International Bar directory would not violate Rule 36 of the BCI rules as it is used as public information. But any publication on a newspaper made for publicity is in clear breach of the rule and is deemed to be professional misconduct[17].
Since the inception of Rule 36 under the BCI Rules, it remains a fiercely debated subject filled with many protests and controversies from within the legal community. The fundamental objective of any advertisement is to promote one’s services and bring them to the notice of the public. In many ways, an advertisement is a form of speech or expression of oneself, and according to the Indian Constitution, under Article 19 the right to Freedom of speech and expression is a fundamental right available to every citizen of India. Thus, it has been debated that lawyers are restricted from exercising their fundamental rights guaranteed under the Constitution of India.
However, in the landmark case of Hamdard Dawakhana,[18] the Court ruled that advertisements that are not in the interest of the public do not fall under the protection of Article 19(1)(a). In the present scenario, it was held the advertisements by advocates are commercial and not in the interest of the public. This judgment has been scrutinized saying that the advocates would then be protected under Article 19(1)(g) as such a blanket ban on advertising would disturb their right to conduct free trade and commerce.
In the case of Tata Yellow Pages v. MTNL,[19] the Supreme Court held that commercial speech falls within the ambit of Freedom of speech and expression[20]. Also, the argument that such a ban would fall under reasonable restrictions would be irrational as it is not against public policy or immoral. The right to advertise for advocates would just provide the public with more options to make an informed decision. Though no judgment explicitly states Rule 36 to be unconstitutional, there have been recent petitions in the Supreme Court challenging its validity. One of which lead to the 2008 amendment by the Supreme Court allowing advocates and law firms to display certain information as specified on their websites.
Position in the United States
The U.S and India were on equivalent standing till 1977. Group 27 of the Professional Ethics of the American Bar Association(ABA) expressed that it was amateurish to request proficient work by notices. The circumstance has now changed by choice of U.S. High Court in Bates v. Province of Arizona[21] in which publicizing privileges of the legal counselor were unavoidably ensured under the First Amendment.
In 1969, the ABA renamed the standards and made the Model Code of Professional Responsibility. In 1983, with an end goal to additionally systematize norms of lawful direct, the ABA supplanted the code with the Model Rules of Professional Conduct; Section 7of the Model Rules manages attorney publicizing and requesting. As per Section 7, notices must be honest and not tricky or deluding. As indicated by Rules, an attorney may publicize through-composed, recorded, or electronic correspondence, including public media
Position in the United Kingdom
In England, publicizing was seen as conflicting with the master or expert character of legal counselors till 1970. In any case, publicizing organization in the U.K. has since changed drastically. The English boycott was lifted by the happening to the Monopolies and Mergers Commission in 1970 and the Office of Fair Trading in 1986, where the upsides of publicizing by legitimate experts were engaged upon. The Solicitors Publicity Code 1990 governs the laws identified with legitimate promoting. Exposure by a specialist should not be deceiving, and it ought to give adequate data to guarantee that the customers can settle on educated decisions.
Indian Position: Advocates Act, 1961 And Bar Council of India
As referenced above, precedent-based law nations like the U.S. also, U.K. have proceeded onward from the old law, for example, restriction of publicizing by a legitimate proficient. Rather than these nations, attorneys in India can’t promote. Segment 4 of the Advocates demonstration discusses the development of the Bar Council of India and under area 7 (1) (b) read with segment 49 (1) (c) of the Act. The BCI can limit the legal counselors and firms to make their master locales and the dissemination of their plugs on the web. As per Rule 36 of the BCI rules, a supporter is precluded from publicizing either straightforwardly or by implication.
The un-altered Rule 36 of the BCI rules precludes a Lawyer from publicizing either straightforwardly or by implication. Nonetheless, after the BCI passed the goal in 2008 altering the standard 36, advocates are permitted to outfit data, for example, name, address, phone numbers, email IDs, proficient and scholarly capabilities, data identified with enlistment, and region of training on their sites. Lawful experts who give this data are likewise needed to assert that they have outfitted genuine data.
Constitutional Validity of Rule 36
Constitution of India guarantees Freedom of speech and expression under Section 19(1)(a), the only exceptions to this Freedom are in the interest of Sovereignty, integrity, and security of the state, friendly relation with the foreign states, public order, morality or in relation to contempt of Court, incitement of an offense and defamation. In the case of Tata Yellow Pages v. MTNL[22], the Hon’ble Supreme Court held that the Freedom of speech and expression extends to commercial speech, i.e. advertising.
Also, in the case of Dharamvir Singh v.Vinod Majahan[23], it was held by the Court that since the legal profession involves business proposition, advertising comes within the definition of commercial speech. From the above analysis of articles and cases, it can be concluded that Rule 36 of the Bar Council of India does not satisfy any of the conditions specified in the Constitution. Further, it can be argued that Rule 36 violates the Freedom to carry on trade, profession, or business enshrined under Article 19(1)(g) of the Constitution of India. Article 19 (1) (g) confers each citizen with the privilege to choose his livelihood or to take up any exchange or calling, and this privilege includes the right of benefitting every one of the methods and assets including advertising. Therefore, the ban on legal advertising under Rule 36 is unconstitutional and excessive.
Conclusion
In the time of advancement and promotion, Indian legal advisors are denied the option to publicize their calling, under the affection of the purported respectability of the calling. It should consistently be recalled that publicizing Isn’t unwarranted; it advances legitimate mindfulness and offers the defendants a chance to assess the capability of their direction. Numerous nations have lifted the age-old prohibition on legitimate publicizing. The unfriendly Impact of restricting legitimate promotion s that huge numbers of the prosecutors are helpless before “companions of a companion” for their lawful necessities. Customers go into the courts without having any earlier thought of the typical expenses for comparable cases. It’s the deal opportunity for the Bar Council, alongside the legitimate crew.
In India to understand that the overall set of laws Isn’t about attorneys. Or maybe, it is that “respectable calling” which serves the necessities of general society on the loose. Like some other assistance, each defendant must be furnished with the stage where he can recognize the most reasonable advice and have the option to acquire the best Incentive for their cash. In this period of globalization, wherefrom one perspective commercials and advancements are weapons for the experts, they likewise go about as a shield for the customer of the administrations. The limitations on the promoting n the legitimate calling are acceptable neither for the legal counselors nor for the customers.
The time the concerned specialists acknowledge It soon, and this antiquated practice arrives at the end. It’s really at that time, that the double advantage, both to attorneys and the purchasers, can be served well. This standard on the boycott of promoting n the legitimate calling came to fruition through the British Victorian Colonial occasions In India and our laws have ceased from adjusting to the changing nature of legitimate administrations n the nation. The legitimate calling s, no uncertainty, one of the most established and a very decent calling.
Subsequently, n a culture-situated nation like India, with its protected qualities and ethics, It is hard to adjust these standards rapidly. The Indian Constitution expresses that any limitation must be sensible also, In light of a legitimate concern for the general population. An absolute prohibition on promoting s not the arrangement and even with the 2008 corrections to Rule 36 t s as yet inordinate n nature. The standard on the boycott of promoted was seen during provincial occasions. With nations like the United Kingdom and the United States refreshing their laws, the Indian general set of laws s given up. With quick globalization and a dramatic expansion n the worldwide law office, certain limitations must be loose. If not for the complete opportunity of promoting, however an appropriately directed framework with Implicit appropriate rules keeping n mind the pride and uprightness of the calling n a medium accessible to most of the populace which would give the Individuals a decision to settle on an educated choice. The limitations on publicizing are acceptable neither for the attorneys nor for the customers. It’s the deal opportunity for the Bar Council of India alongside the significant specialists acknowledge t soon and end this age-old practice.
References:
[1] (Bar Councll Of Maharashtra vs M. V. Dabholkar , 1975)
[2] (Indian Council of Legal Aid and Advice v. Bar Council of India [(1995) 1, 1995)
[3] (Section 49, Advocates Act, 1961)
[4] (Rule 36, Section IV, Chapter II – Part IV, Bar Council of India Rules,)
[5] (Resolution No., 50 / 2008 dated [24.03.2008])
[6] ( AIR 1984 Mad. 35, 1984 )
[7] (Bar Councll Of Maharashtra vs M. V. Dabholkar , 1975)
[8] ( Bar Council of Maharashtra v. M.V. Dabholkar (1976) 2 SCC 291, (1976)
[9] (Bar Council of India v. A.K. Balaji and Others (2018) 5 SCC 379, 2018)
[10] (Gomber, Right to Advertise for Lawyers , Udgam Vigyati Vol. 3)
[11] (State Of U.P. And Anr vs Johri Mal, 2004)
[12] ( Civil Appeal 963-64 of 2000)
[13] (B. Rajeswar Reddy vs K. Narasimhachari And Ors., 2001)
[14] (1 [ 2001 (6) ALT 104])
[15] (AIR 1929 Bombay 335)
[16] ((Thirteen) Advocates v. Unknown , 1934)
[17] ( BCI TR, Case No. 38/ [1994])
[18] (Hamdard Dawakhana (Wakf) Lal vs Union Of India And Others, 1959)
[19] (Tata Yellow Pages v. MTNL, , 2008)
[20] (1995 AIR 2438)
[21] (Bates v. State Bar of Arizona, 1977)
[22] (Tata Yellow Pages v. MTNL, 2008)
[23] (Dharam Vir vs Vinod Mahajan And Ors. on 19 November, 1984, 1984)
Other Sources:
- Legal Service India. (n.d.). Advertising in legal profession. Legal Services India – Laws in India, Supreme court judgments, lawyers in India. https://www.legalservicesindia.com/article/2542/Advertising-in-Legal-Profession.html
- Advertising by an advocate is not prohibited in india- OnlyAdvocate. (2020, June 17). OnlyAdvocate. https://www.onlyadvocate.com/4598-2/
- Advocates barred from advertising their services. (n.d.). Law Teacher | LawTeacher.net. https://www.lawteacher.net/free-law-essays/public-law/advocates-barred-from-advertising-their-services-law-essay.php
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