Advertisement of Services
“The canons 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 vulgarize the legal profession.” – Justice Krishna Iyer
INTRODUCTION
In India advertising in the legal profession is prohibited. Even if a lawyer argues a case splendidly in the Court of Law, the newspaper may report the issue but the lawyer’s name in the news will be frowned upon. As Lloyd Pearson, a London-based Legal Directories Consultant states that India has most of the lawyers in the world, yet we know little about Indian Firms; everyone would be better served if we knew more about the Indian legal market. A person buying a car has more information and research resources than the person handling litigation to a lawyer.
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, 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 vulgarize the legal profession”.
This perception about the prohibition stems from the very fact that the legal profession is considered 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 the area of specialization, until then, there was a blanket ban on the advertising.
Notwithstanding the prohibition on advertising by legal professionals in India, many lawyers do advertise through visiting cards, seminars and felicitation ceremonies, issuing circular letters or election manifestoes with name, address, and profession printed on them. Albeit, activities by lawyers attract the BCI rules and are in contravention of them, yet the loopholes in implementation always let them go unnoticed.
Indian Position: Advocates Act, 1961 And Bar Council of India
As mentioned above, common law countries like the US and UK have moved on from the old law i.e. prohibition of advertising by a legal professional. In contrast to these countries, lawyers in India cannot advertise. Section 4 of the Advocates act talks about the formation of the Bar Council of India and under section 7 (1) (b) read with section 49 (1) (c) of the act, the BCI can restrict the lawyers and firms to make their expert sites and the distribution of their commercials on the web.
According to Rule 36 of the BCI rules, an advocate is prohibited from advertising either directly or indirectly. The un-amended Rule 36 of the BCI rules prohibits a Lawyer from advertising either directly or indirectly. However, after the BCI passed the resolution in 2008 amending rule 36, advocates are allowed to furnish information such as name, address, telephone numbers, email id’s, professional and academic qualifications, information related to enrollment and area of practice on their websites. Legal professionals who provide this information are also required to make a declaration that they have furnished true information.
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 offence and defamation. In the case of Tata Yellow Pages v. MTNL, 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 vs. Vinod Majahan 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 own 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 in nature.
Sociological Jurisprudence Perspective
Legal advertising can easily be related to the sociological perspective. Professor Marc Galanter in an essay titled “Why the Haves Come out Ahead” says that social inequalities produce legal inequalities. He defined two types of groups in society with respect to litigation, i.e. One shot player and Repeat Player. The former has only occasional recourse to courts while the latter is engaged in the same litigation. The repeat players have their own counsel who is well versed with the legal precedents and courts, while on the other hand, one-shot players do not have such an advantage.
If the lawyer is allowed to advertise his legal practice with the help of some media, then the one-shot players can also have better chances of appointing the best lawyer and making proper use of their money. The Legal advertisement will bring equality between one-shot players and repeat players. One-shot players will not face any difficulty in finding lawyers who are well versed in the legal area.
Internet Marketing in the Field Of Advocacy
Online marketing which is legal allows lawyers to promote their services using the resources available on the internet. As per statistics in 2016, it is found that an estimated 9 million people use the internet each month to search for legal services. At the same time, the number of people using conventional sources like magazines and newspapers started reducing by the passing day. It was clear that the need of the hour was for an online platform of advertising lawyers and advocates, with the prime motive of making legal services more accessible and available to the general public.
The general perspective of any individual on online legal advertising would be advertising and marketing lawyers and law firms but, online marketing for lawyers may also include other aspects of practice, such as public relations, peer-to-peer networking, and online reputation management. It is quite common for lawyers to work through marketing firms that specialize in web-based advertising campaigns on small and large scales.
the Bar Council of Delhi in a public notice said that it had issued notices of misconduct to lawyers found publishing advertisements on social media, including on Facebook and WhatsApp. The notice also said that errant lawyers contravening Bar Council rules would be prosecuted under the provisions of the Advocates Act, 1961.
What is the problem with lawyers advertising their services?
Rules in India do not allow advocates to publicize their services. Subsection 1(c) of Section 49 of The Advocates Act, 1961 (‘General power of the Bar Council of India to make rules’) empowers the Bar Council of India to make Rules on ‘the standard of professional conduct and etiquette to be observed by advocates’.
Clause 36 under Section IV (‘Duty to Colleagues’) of the ‘Standards of Professional Conduct and Etiquette to be Observed by Advocates’ lay down by the Bar Council of India says:
“An Advocate shall not solicit work or advertise, either directly or indirectly, whether by circulars, advertisements, touts, personal communications, interview not warranted by personal relations, furnishing or inspiring newspaper comments or procuring his photograph to be published in connection with cases in which he has been engaged or concerned.”
Also, “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 Members 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 work or that he has been a Judge or an Advocate-General.”
An advocate who contravenes these Rules can be prosecuted under Section 35 of The Advocates Act, 1961. Under this Section (‘Punishment of advocates for misconduct), a state Bar Council has the following powers: dismiss the complaint, reprimand the advocate, suspend the advocate from practice for a limited period, remove the advocate’s name from the state roll of advocates.
Reasons for Prohibiting Lawyers from advertising
The reasons that could to attributed to the prohibition of lawyers from advertising their services in India are twofold: firstly, there are ethical dilemmas attached to the legal profession, and secondly, there are legislative and judicial reasons prohibiting the same.
Ethical Reasons
The ethical reason that has been often cited as a means to justify the prohibition on advertisement of legal services is that the practice of law is a noble profession, rather than commercial services. Hence, such stringent notions are for the purpose of upholding the ‘dignity of the profession’. Such conception of the legal services is based on old Victorian notions about law, which is no more in use in the UK as well.
Legal Reasons
The reasons that the lawyers and law firms are prohibited to advertise their services are due to the cumulative effect of the Advocates Act, the Rule of the Bar Council of India and other professional bodies.[2] Lawyers are not allowed to solicit clients and cannot do anything that might influence the decision of a potential litigant from engaging one or the other lawyer.[3]
The Advocates Act allows the Bar Council of India (BCI) to make rules in order to discharge its function under the Act, and based on this, the BCI has come up with the BCI Rules.[4] Accordingly, Rule 36 of the BCI Rules[5] states that:
“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.”
In 2008, an amendment was brought about to the Rule 36, pursuant to the decision of the Supreme Court in the case of V.B. Joshi v. Union of India,[6] according to which the lawyers are allowed to furnish information on their websites, in conformity with the Schedule and are also to provide a declaration that the information provided by them is true.[7]
The Courts in India have constantly been of the view that advertisement of legal services shall lead to the downfall of ethics of the lawyers and would bring down the nobility attached to the profession. Such a view has been held by the Courts for a long, starting from the Madras High Court stating in the year 1967, that advertisements by lawyers shall lead to jealousy amongst their colleagues, which will lead them to compromise with their dignity.[8] Further, in India, where a large chunk of the population is illiterate, there are chances that unscrupulous lawyers may exploit the public.
The Courts have time and again enforced the literal words of the BCI Rules, with utter strictness, leaving no scope for the lawyers and the law firms to advertise their services.[9] However, it is pertinent to note that the Courts have also held that the Consumer Redressal Forums have the jurisdiction to deal with cases against the services rendered by the Advocates.[10] Section 2(u) of the Competition Act, 2002, defines the term ‘service’ along the lines of the Consumer Protection Act, 1986. Hence, it is to be noted that legal services are increasingly becoming subject to trade laws. The dichotomy between the stances of the Indian courts is clearly established.
It is also pertinent to note the fact that some lawyers and influential law firms, manage to advertise their legal services. One such example is the issue of circular letters or election manifestos by an advocate with his name, profession, and address provided as a means of indirect advertisement, despite it being illicit. The law firms having enough financial resources sponsor moot court competitions focusing on a particular field of law, highlight the cases that they handle by means of research articles, and make use of the social media platforms.[11]
Constitutional Aspect against the Prohibition
Article 19(1) (a) of the Constitution of India, guarantees the freedom of speech and expression, which is further qualified by a number of exceptions.[12] The exceptions in no way talk about prohibiting the right of legal practitioners to advertise their services in any manner. Rather, in the case of Tata Yellow Pages v. MTNL,[13] the Supreme Court was of the opinion that the commercial speeches, that is advertising, is protected under Article 19(1)(a) of the Constitution. It has been further held by the Punjab and Haryana High Court that rendering professional legal services is a business proposition, and advertisement of the same as such comes within the definition of commercial speech.[14] The Supreme Court has also held that the right to freedom of speech of the citizens cannot be taken away by placing restrictions on the business of citizens.[15]
Hence, it is to be noted that Rule 36 of the BCI Rules, which prohibits the advertisement of legal services, are in contravention of the fundamental rights of the law practitioners. The prohibition does not stand in conformity with any of the exceptions to the freedom of speech and expression, as specified in Article 19(2).[16] The prohibition cannot even stand on the grounds of ‘public interest, for the reason that this phrase has been held to be synonymous to public peace, safety, tranquillity, amongst others.[17]
Further, Article 19(1) (g) of the Constitution, guarantees a right upon the citizens to choose their employment, trade and calling,[18] which comes with an implied right to avail the resources and opportunities for effectively carrying out the trade.[19] This right is faced with similar exceptions as that of Article 19(1) (a). And the argument stands the same in furtherance of the protection of this fundamental right as well. Advertisement of legal services does not contravene any of the exceptions under the Constitution, and hence, the prohibition on the same infringes the fundamental rights of the legal practitioners.
Comparative Analysis of Different Jurisdictions
United States of America
The USA had practised a similar practice that of India till 1977, of prohibiting the advertisement of the legal services. Ordinance 27 of the Professional Ethics of American Bar Association, held solicitation of professional employment, by means of advertisement to be unprofessional.
This position of law was constitutionally challenged in the case of Bates v. State Bar of Arizona.[20] This case involved two legal practitioners, who opened a law firm, to provide legal services to those who did not qualify for legal aid, but could not afford legal services, otherwise. The only plausible way of doing the same, was by means of advertisement. The Court held that a blanket prohibition on advertisement of legal services was unconstitutional, and in violation of the First Amendment, that is freedom of speech and expression.
Currently, the right of lawyers to advertise the legal services is regulated by the Model Rules of Professional Conduct, 1983,[21] according to which, a lawyer may advertise his services through written, recorded or electronic communication, including public media, subject to the conditions laid down.
United Kingdom
The U.K. had prohibited the advertisement of legal services, owing to the old Victorian notions. However, the Monopolies and Mergers Commission in 1970 and the Office of Fair Trading in 1986, came up with reviews that highlighted the benefits of allowing advertisement of the legal services.[22] This flipped the stance of the UK upside down, thereby, giving up on the age-old Victorian notions.
In the UK, the law governing the advertisement of legal services is contained under the Solicitor’s Publicity Code, 1990, which has been periodically updated. Under the Code, the advertisement of the legal services should not be misleading but should provide sufficient information so as to enable the clients to make an informed choice, thereby, addressing the right to information aspect of the clients.[23]
The Code further provides that, the advertisement may contain the fees of the lawyer, provided that the fees are not pitched at a dangerously low level, and that it should be accompanied by a statement that additional charges might be applicable, upon the fees.[24]
Asian Countries
In Asia, countries such as Hong Kong, Singapore and Malaysia, have been gradually relaxing their regulations on legal advertising to adapt to the global demands.[25]
Malaysia has a simple yet, comprehensive code which regulates the advertisements in the legal and the non-legal fields. In Hong Kong, lawyers are prohibited from advertising on television, radio and cinema, though advertisement in print media is permissible. In Singapore, legal advertisement is allowed subject to some conditions.
CONCLUSION
It is not prudent on the part of the Legislature and the Judiciary to make a rule prohibiting the advertisement of legal services and not taking any active steps for the implementation of the rules. There is no clear demarcation of what constitutes an advertisement and what does not. We do come across huge flex boards with names and photographs of lawyers, interviews of lawyers on national newspapers and television, publications by the partners and the associates of law firms and newspapers mentioning the names of the lawyers and law firms representing clients in the high-profile cases. All this amounts to the advertisement of the legal services.[1] However, it is also to be realized that the BCI cannot be a watchdog of every advertisement made by any lawyer all across the country.
Hence, it is necessary that we realize the changing landscape of the Indian legal industry, which has already been considered an industry by the Supreme Court.[2] The legal services are increasingly being subjected to consumer protection laws and trade laws. This calls for the legislature and executive to realize the commercial nature of the practice of law.
There should not be a complete ban on advertisement as long as the advertisement is not merely gratuitous. If there is a dissemination of any sort of legal awareness and gives the litigants an opportunity to weigh their choices and the calibre of their potential counsels, advertisements should be permitted.
There could be regulated advertisements if the Bar Council thinks that to be the appropriate course of action. The Bar Council could lay down the conditions that need to be adhered to for advertising the legal services, without actually nullifying the cause of the supporters of the advertisement of legal services.
References
[1] Bar Council of Maharashtra v. M.V. Dadholkar, AIR 1976 SC 242.
[2] M.L. Sarin & Harpreet Giani, Prohibition of Advertisement in the Legal Services Sector, 1(1) India Law Journal, available at: http://www.indialawjournal.org/archives/volume1/issue_1/legal_articles_sarin.html
[3] M.L. Sarin & Harpreet Giani, Prohibition of Advertisement in the Legal Services Sector, 1(1) India Law Journal, available at: http://www.indialawjournal.org/archives/volume1/issue_1/legal_articles_sarin.html
[4] Advocates Act, No. 25 of 1961, § 49(1).
[5] Rule 36, Section IV, Chapter II, Part VI, Bar Council of India Rules, 2008.
[6] Writ Petition (Civil) no. 532 of 2000.
[7] Declaration, Rule 36, Section IV, Chapter II, Part VI, Bar Council of India Rules, 2008.
[8] C.D. Sekkizhar v. Secretary Bar Council, AIR 1967 Mad. 35.
[9] Isha Kalwant Singh, Advertising by Legal Professionals, Bharti Law review 277 (Oct-Dec, 2016).
[10] Suyogya Awasthy, Right to advertising of lawyers, Legally India (2016), available at: https://www.legallyindia.com/views/entry/right-to-advertising-of-lawyers
[11] Somesh Dutta, A case to relax advertising restrictions for legal practitioners, The Hindu (July 9, 2018), https://www.thehindu.com/opinion/op-ed/a-case-to-relax-advertising-restrictions-for-legal-practitioners/article24372921.ece
[12] India Const. art. 19, §1, cl. a.
[13] AIR 1995 SC 2438.
[14] Dharam Vir Singh v. Vinod Mahajan, AIR 1985 P&H 169.
[15] Sakpal Papers v. Union of India, AIR 1962 SC 305.
[16] India Const. art. 19, sec 2.
[17] O.K. Ghosh v. E.X. Joseph, AIR 1963 SC 812; Dalbir Singh v. State of Punjab, AIR 1962 SC 1106.
[18] India Const. art. 19, §1, cl. g.
[19] Sakpal Papers, supra note 18.
[20] 433 US 350.
[21] Rule 7.2, Model Rules of Profession Conduct, 1983.
[22] Maya Goldstein Bolocan, Professional Legal Ethics: A Comparative Perspective, CEELI Concept Paper Series 22 (2002)
[23] Rule 8.1, Solicitors’ Publicity Code, 2016.
[24] Rule 8.9, Solicitors’ Publicity Code, 2016.
[25] Advocates barred from advertising their services, Law Teacher (February 2, 2018) available at: https://www.lawteacher.net/free-law-essays/public-law/advocates-barred-from-advertising-their-services-law-essay.php
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