IN THE MATTER OF MR.

‘A’ AN ADVOCATE, AIR

1962 SC 1337

Presented By:

Adhirath Singh Palawat (422)

Ambiecka Pandit (423)
Relevant Law
RULE 36 OF THE BCI RULES:

“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.”
Relevant Law Contd..
Earlier, even advertising on the internet was banned. But vide an
amendment in 2008, a proviso was added to Rule 36:

That this Rule will not stand in the way of advocates furnishing
website information as prescribed in the Schedule under
intimation to and as approved by the Bar Council of India. Any
additional other input in the particulars than approved by the
Bar Council of India will be deemed to be violation of Rule 36
and such advocates are liable to be proceeded with misconduct
under Section 35 of the Advocates Act, 1961.

The Schedule provides for only the following information: Name,

Address, Telephone Nos., Email id, Enrolment Number, Date of
Enrolment, Name of the State Bar Council where originally
enrolled, Name of the Bar Council on whose roll name stands
currently, Name of the Bar Association of which the advocate is
member, Professional and Academic Qualifications, Areas of
Practice.
Relevant Law Contd..
• Section 36, Advocates Act, 1961: The BCI has the power to initiate
disciplinary proceedings against an advocate on receipt of a complaint or
otherwise, if it has reason to believe that any advocate on its roll has been
guilty of professional or other misconduct.

• Rule 8A, Order IV, Supreme Court Rules, 1966: When, on the complaint
of any person or otherwise, the Court is of the opinion that an advocate on
record has been guilty of misconduct or of conduct unbecoming of an
advocate on record, the Court may make an order removing his name from
the register of advocates on record either permanently or for such period as
the Court may think fit and the Registrar shall thereupon report the said
fact to the Bar Council of India and to State Bar Council concerned.

Provided that the Court shall, before making such order, issue to such
advocate on record a summons returnable before the Court or before a
Special Bench to be constituted by the Chief Justice, requiring the advocate
on record to show cause against the matters alleged in the summons, and
the summons shall, if practicable, be served personally upon him with
copies of any affidavit or statement before the Court at the time of the issue
of the summons.
Origin of the Law
• The roots of this law are based on British Common law.
• The conception of legal services as a ‘noble profession’.
• Public policy and ‘dignity of profession’. Avoid
commercialization.
• Section IV of Chapter II of Part IV of Bar Council of India
Rules-“Duty to colleagues”.
Therefore, to prevent the advocates, law firms, etc from
enticing the clients of their adversary and to snatch away the
business of their adversary. Such a law is also made in order
to help the small and unknown advocates and firms to rise in
the market and do business.
• In a populated country like India, there is a possibility of
unscrupulous lawyers exploiting the public. Law is traditionally
seen as a profession whose goal is public service.
• Also, such a law prevents lawyers from falling below their
dignity in order to fetch clients by doing anything and thus
degrading the nature of the profession.
Facts
• The Registrar of the Supreme Court received a letter from the
Department of Law and Justice, Government of Maharashtra to
the effect that the Mr. A, an Advocate on Record of the Supreme
Court had sent a post-card which “constitutes a gross case of
advertisement and solicitation for work.”

• The main part of the letter, relevant for our discussion, read as
follows: “You might have got an Advocate on Record in this
court but I would like to place my services at your disposal if you
so wish and agree….Hoping to be favored.”

• The Chief Justice directed the Registrar informally to enquire.

The Advocate admitted to have sent the post card and that he
did not realize he was committing any wrong or breach of
etiquette.

• The Chief Justice placed the matter before a Committee of three

Judges of the Supreme Court. On receiving its opinion, the Chief
Facts contd..
•In reply to the notice served on the Advocate, he alleged that the complaint in
question by the Government of Maharashtra was “false, mala fide and
misconceived". He denied that he had written the letter in question, which he
characterized as "the work of any miscreant".

•He added further that even if it were proved that the letter in question had
been written by him, a mere perusal of it would show that there was nothing
unprofessional or otherwise objectionable in it, and he added further that
“certainly it is not solicitation of work if one inquires from any person whether
it requires or wishes and agrees to have the services of another advocate".

•During examination, the advocate denied having ever admitted to the

Registrar that the post card was sent by him or that it was his handwriting.

•After conducting a handwriting analysis, it was concluded that the post card
had in fact been sent by the delinquent. The Tribunal was also of the opinion
that in writing the post-card he was committing a breach of professional
etiquette and of professional ethics.

•The matter came before the Supreme Court. The delinquent denied the
allegations but later admitted.
Decision
The delinquent was suspended from the practice of law for a period
of 5 years on the ground that he not only committed a professional
misconduct by soliciting brief but furthermore lied about it.

The court observed that if he is ignorant of the elementary rules of

professional ethics, he has demonstrated the inadequacy of his
training and education befitting a member of the profession of law.

He was declared to be of a week moral fibre, having lied about the

alleged misconduct in a court of law.

The court’s concluding words were:

“This punishment will give him enough time and opportunity for
deciding for himself, after deep deliberation and introspection,
whether he is fit to continue to be a member of the legal
profession. In our view he is not. Let him learn that a lawyer must
never be a liar.”
Judicial interpretation of Rule 36
• The Supreme Court of India observed in Bar Council of India v. M. V.
Dhabolkar, that: “ Law is not a trade, not briefs, not merchandise, and so the
heaven of commercial competition should not vulgarize the legal profession”

• The Bombay High Court in Government Pleader v. S, a Pleader considered

sending a circular postcard merely giving the address and description as an
improper conduct by the Advocate. The advocate in question was thus held to
be violating Rule 36.

• The Allahabad High Court observed that self advertising tends to lower the
dignity of this honourable profession and is undoubtedly akin to touting.

• It has been further observed by the High Court of Gujarat that writing of
articles for publication in newspapers under his signature, where the writer
describes himself as an Advocate practicing in the court as a flagrant breach
of professional etiquette.

• The High Court of Madras went one step ahead in SK Naicker v. Authorised
Office and held that even a sign board or a name-plate should be of a
moderate size.
Contd..
In the case of J.N Gupta v. D.C Singhania, the respondent advocates
had issued two advertisements in a paper for indicating the shift in
their place of business from their old office on account of fire in their
building and then their relocation to their original place of business.
Thereafter they made a publication in the international Bar Directory
as “Singhania and Co.: Firms major cases and representative clients”
giving their names and address.

The court was of the opinion that the paper publication per se did not
constitute any violation of the Bar Council Rules as it was on account
of fire which required them to urgently intimate clients of their
relocation. Further, their publication in the International Bar
Directory did constitute advertising as it was done with the intention
of publishing the profile of cases they have handled and in turn
soliciting more briefs and work. They were held violative of Rule 36 of
the Bar Council Rules Standards of Professional Conduct and
Etiquette and were subsequently penalised under Section 35(3) (B) of
the Advocates Act and were charged with a fine of Rs 3000.
Constitutional Validity
• In Phool Din and Others it was held that:
…it is a penal offence for a lawyer to accept employment
through a tout and for a citizen to act as one. Elaborating a little
on what constitutes a tout, the court said that merely
recommending a particular advocate is not touting. It is charging
remuneration from the lawyer to do the same that it is
considered touting. Further the court answered the
constitutional question of validity of such an absolute ban in the
light of Article 19(1) (g). The Court was of the opinion that such
a ban constituted a reasonable restriction in public interest
under Article 19(6).

• Presently, there is a writ petition pending in the Hon’ble

Supreme Court of India, filed by advocate Mr. V.B. Joshi. The
reasons accorded for declaring Rule 36 as violative of The
Constitution of India have already been put forth earlier. The
matter is probably still pending. During this matter however,
online advertising was allowed.
Judicial Rationale for Rule 36
• Rule 36 restricts advertising by lawyers in all forms. The rule
states that a lawyer cannot solicit work directly or indirectly
in any medium whatsoever.

• “Indirectly” interpreted in a strict sense does not permit

business cards, directory listings or seminar ceremonies and
any felicitations. No personal communication, touts,
manifestoes allowed. All possible means of communication
with a prospective client are blocked.

• The Courts have taken a rather archaic view of this rule. In

the case of BCI v. M.V Dhabolkar, the court held that:

Law is not a trade, not briefs, not merchandise, and so the

heaven of commercial competition should not vulgarize the
legal profession.
• Also Justified on the grounds of Public Policy and Dignity of
Profession in Indian Council of Legal Aid and Advice v.
BCI

▫ Quality of lawyers work is enough to get him publicity.

Commercialization might lead to unethical practices.
▫ Even if advertising is allowed, albeit regulated, it shall be
impossible for the BCI to keep tabs on all advertisements.
▫ People would go to the lawyer having fanciest media
coverage, and not the competent lawyer.
▫ Lastly, lawyers would start “price-cutting” and “bargain
deals” to remain competitive. Hence, this would decrease
the nobility of the profession.
Criticism
NATURE OF “LEGAL SERVICE” : commercial

• The view that the legal profession is a service has been reaffirmed by the
Judiciary in umpteen cases. It is a settled position of law that the legal
profession is a service for the purpose of the consumer protection act. – K.
Vishnu v. National Consumer Disputes Redressal Commission & Anr,
P. Krishna Rao v. Mandipalli Devaiah.

• The very nature of legal services has shifted since globalization. The
profession has acquired the nature of a consultancy business. Therefore, with
the legal profession getting the characteristic of a service, advertising
becomes essential.

• In the case of Bangalore Water Supply and Sewerage Board v. A.

Rajappa, the Supreme Court opined that legal profession is covered under
the definition of the term Industry under the Industrial Disputes Act.

• WTO Sectoral List recognizes the legal profession as a service. Thus, it could
be concluded that legal services are becoming subject of trade related laws
and hence, advertising becomes an essential ingredient.
CONCEPT OF INFORMED CHOICE : commercial

• Competition fosters better service and fairer prices. The consumer

always wins when there is competition and advertising fosters
competition.

• Informed choice is a right of a consumer. Ban on advertising leads to

depriving consumers of valuable information about the advocates. This
results in a situation where consumers cannot make an informed choice
from the mark.

• The observations of the Supreme Court in Tata Press Ltd. v.

Mahanagar Telephones Ltd has recognized the importance
commercial speech and the right to advertise - not only to the
advertiser but also the consumer. The Court observed:

Advertising is considered to be the cornerstone of our economic

system. Low prices for consumers are dependent upon mass
production, mass production is dependent upon volume sales, and
volume sales are dependent on advertising.
Ways Ahead
• Advertising, if allowed, should be regulated. It cannot be
unfettered, lest it will work to the disadvantage of the
consumer. This kind of a restriction is a reasonable one and
falls under Article 19(6) of The Constitution of India.

• With respect to the changing demands, the BCI has made an

amendment in Rule 36 which allows for lawyers to put their
information on websites; in a prescribed format by the BCI.
Contravention leads to a disciplinary action. However,
ironically the same format published in a newspaper would
not escape the clutch of Rule 36.
Position in the US
• There was a complete ban on advertising for legal professionals until
1977.

• This position took a complete U-turn after the decision of the U.S.
Supreme Court on 27th June 1977 in the case of Bates v. State Bar
of Arizona.

• The Supreme Court validated legal advertising and invalidated the

law of State Bar of Arizona banning legal advertising by a majority of
5:4 holding such a law violative of First Constitutional Amendment.

• Justice Blackmun argued that commercial speech does merit First

Amendment protection given the important functions it serves in
society, such as –
▫ providing consumers with information about services and products, and
▫ helping to allocate resources in the American system of free-enterprise.

• But the onus of regulation has been placed on the states.

Position in the UK
• The provision banning advertisement adopted in India has its
roots in Victorian notions of U.K. which considered each and
every profession to be noble.

• Earlier, in U.K. too advertising was banned for professionals like

lawyers. But later this ban was lifted.

• The Monopolies and Mergers Commission in 1970 and the

review given by the Office of Fair Trading in 1986 pointed out
at the advantages of letting the professionals advertise. This
ultimately led to the lifting of the ban and reducing restrictions.