Manish Kumar a student of BA.LLB (Hons) at the School of law, Lovely Professional University has written this article on “Legal Advertising in India”- Solicitation
Introduction to Legal Advertising in India
The Bar Council of India has prohibited legal advertising of professional services by advocates in India. This law derived from the old Victorian notions of British Common law, which did not deem the profession of law not as a strict trade, and perceived lawyers as quintessential officers of the court.
Its origin is also in the Canons of American Jurisprudence. As per Ordinance 27 of the Professional Ethics of the American Bar Association, it would be ‘unprofessional’ to solicit the services of an advocate. This perception of legal practice as a ‘noble profession’, rather than a service has led to the development of such a restraint. This law imposing prohibition on advertising seeks to justify itself under the guise of public policy and the dignity of the profession.
However, the laws in India are yet to take cognizance of these changed perceptions and developments, and there is almost a complete disallowance of advertising for legal practitioners.
Status of Legal Advertising in India: the Law and the Regulator.
The Advocates Act of 1961 governs the professional conduct and standards for advocates in India. The Act establishes a Central Bar Council, i.e. the BCI, and respective State Bar Councils that have the power to make rules regarding professional legal behaviour, as provided by Section 4 of the Act. Section 49(1) of the Act has greatly empowered the Bar Councils to formulate rules pertaining to ‘the standard of professional conduct’ as well as the ‘conditions of practice’ for lawyers.
Rule 36 of the BCI Rules, notified in the Gazette of India on the 6th of September 1975 reads as follows:
“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 organisation or with any particular cause or matter or that he specialises in any particular type of worker or that he has been a Judge or an Advocate General.”
Landmark Case Laws
C.D. Sekkizhar v. Secretary Bar Council
Rule 36 completely bars advocates from advertising their services in India. A plethora of cases challenged the arbitrary and restrictive nature of Rule 36, resulting in conflicting judgments on the issue. In 1967, the Madras High Court in C.D. Sekkizhar v. Secretary Bar Council observed that advertisements by advocates were banned to prevent feelings of jealousy and were unbecoming of the noble profession. Further, the Apex Court in Bar Council of Maharashtra v M. V. Dabholkar, opined that “commercial competition and procurement could vulgarise the legal profession”.
Dharam Vir v Vinod Mahajan
Conversely, in 1985 the Punjab & Haryana High Court in Dharam Vir Singh v Vinod Mahajan, held that providing legal services would be a business proposition, and advertising the same would come within the purview of ‘commercial speech’ as protected by Article 19(1)(a) of the Indian Constitution. The Apex Court, in its landmark judgment in Tata Yellow Pages v MTNL, held that commercial speech is a fundamental right under Article 19(1)(a) of the Indian Constitution. However, since a full bench didn’t hear the matter, the judgment did not have the effect of declaring Rule 36 of the BCI Rules unconstitutional.
V.B Joshi v. Union Of India
Hence, all such attempts to challenge the law were to no avail till 2008. Rule 36 was finally amended by Resolution Resolution No. 50/2008[2] passed by the BCI in pursuance of the decision of a three-Judge Bench of the Supreme Court in the case of V.B. Joshi v. Union of India. The amendment permitted advocates to provide details such as their names, PQE (Post Qualification Experience), and areas of practice on websites to publicize lawyers and reveal subtle elements of their practice.
Advocates Act, 1961 And Bar Council of India.
Advocates 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.
Rule 36 of the BCI rules prohibits an advocate from legal advertising directly or indirectly. The un-amended Rule 36 of the BCI rules prohibits a Lawyer from advertising either directly or indirectly. However, the BCI resolution in 2008 amended rule 36 and allowed advocates to furnish information such as name, address, telephone numbers, email IDs, professional and academic qualifications, information related to enrollment and area of practice on their websites. Legal professionals who provide this information must also make a declaration that they have furnished true information.
Constitutional Validity of Rule 36
The 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 relations with foreign states public order, morality or in relation to contempt of court, incitement of an offence and defamation. In the case of Tata Yellow Pasges v. MTNL the Hon’ble Supreme Court held that the freedom of speech and expression extends to commercial speech, Le. advertising. In the case of Dharamvir Singh v. Vinod Mahajan, the Court held that advertising comes within the definition of commercial speech as the legal profession involves business propositions.
Based on the analysis of the articles and cases above, one can conclude that Rule 36 of the Bar Council of India fails to meet any of the conditions specified in the Constitution. One can argue that Rule 36 of the Bar Council of India violates the freedom to carry on trade, profession, or business guaranteed by Article 19(1)(g) of the Constitution of India.
Article 19 (1) (g) confers each citizen the privilege to choose his own livelihood or to take up any exchange or calling, and this privilege includes the right of benefitting everyone of the methods and assets including advertising. Therefore the ban on legal advertising in India under Rule 36 is unconstitutional and excessive in nature.
Sociological Jurisprudence Perspective
Legal advertising in India or in the USA 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. shot player and Repeat Player. The former has only occasional recourse to courts while the latter is engaged in the same litigation.
One-shot players do not have an advantage in having their own counsel who is familiar with legal precedents and courts, while repeat players do. Allowing lawyers to advertise their legal practice through various media can provide one-shot players with better chances of hiring the best lawyer and making the most 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.
Position in the United States:
The US and India were on equal terms till 1977 regarding legal advertisement. Canon 27 of the Professional Ethics of the American Bar Association(ABA) stated that it was unprofessional to solicit professional employment through advertisements. The situation has now changed by the decision of the US Supreme Court in Bates v. State of Arizonain which the advertising rights of the lawyer were constitutionally protected under the First Amendment.
In 1969, the ABA reclassified the canons and created the Model Code of Professional Responsibility. In 1983, in an effort to further codify standards of legal conduct, the ABA replaced the code with the Model Rules of Professional Conduct; Section 7 of the Model Rules deals specifically with lawyer advertising and solicitation. According to Section 7, advertisements must be truthful and not deceptive or misleading. According to the Rules, a lawyer may advertise through written, recorded or electronic communication, including public media.
However, these rights are subject to the following restrictions:
(i) No false or misleading communication should be made about the lawyer or the lawyer’s services.
(ii) No lawyer shall solicit professional employment in person, through live telephone or electronic contract when a significant motive is the lawyer’s pecuniary gain.
The U.S. has changed the archaic prohibition on advertising by lawyers and has given a broad and liberal view to the right of advocates to advertise. The liberal view of allowing the law professional to advertise has replaced the orthodoxy of the prohibition which in turn helps the consumer to hire the best legal services according to their needs.
Position in the United Kingdom:
Until 1970, advertising was viewed as conflicting with the expert and professional character of lawyers in England. However, advertising administration in the U.K. has since changed dramatically. The Monopolies and Mergers Commission in 1970 and the Office of Fair Trading in 1986 lifted the English ban on legal advertising, as they recognized the benefits of advertising for legal professionals. The Solicitors Publicity Code of, 1990 governs the laws related to legal advertising. Publicity by a solicitor ought not to be misleading and it should provide sufficient information to ensure that the clients can make informed choices.
Conclusion:
In the era of promotion and advertisement, Indian lawyers are denied the right to advertise their profession, under the pretext of the so-called nobility of the profession. It is important to always remember that advertising is not gratuitous. It promotes legal awareness and provides litigants with an opportunity to evaluate the potential of their counsel.
Many countries have lifted the archaic ban on legal advertising. The adverse effect of prohibiting legal advertising is that many of the litigants are at the mercy of “friends of a friend” for their legal requirements.
Clients enter the courts without having any prior idea of the usual fees for similar cases. It is time for the Bar Council, along with the legal fraternity in India to realize that the legal system is not all about lawyers. Rather, it is that “noble profession which serves the needs of the public at large. Similar to any other service, every litigant must be provided with a platform where he can identify the most suitable counsel and be able to obtain the best value for their money.
In this era of globalization, where on the one hand advertisements and promotions are weapons for professionals. they also act as a shield for the consumer of the services. The restrictions on advertising in the legal profession are good neither for the lawyers nor for the clients. It is time that the concerned authorities realize it soon and this archaic practice comes to end. It is only then, allowing legal advertising India can benefit both lawyers and consumers.
[1] Introduction, Available at: https://ijlpp.com/restrictions-on-advertisement-in-the-legal-profession-in-india-the-anti-competitive-aspect/ (Last visited at 08th, March 2023)
[2] BCI rules, Available at: https://www.legalservicesindia.com/article/2542/Advertising-in-Legal-Profession.html (Last visited on 10th, March 2023)
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