ADVERTISEMENT IN LEGAL PROFESSION

Raghwi Singh
BBALLB (H)
A90821517041

ABSTRACT
Everyone has the right to freedom of opinion and expression; this right includes freedom
to hold opinions without interference and to seek, receive and impart information and
ideas through any media and regardless of frontiers.- United Nations, Universal
Declaration of Human Rights

Introduction
Right to Advertisement is one of the intrinsic features of conducting any business, profession,
or any other organization in today s world. It provides a platform for the person to
communicate any form of information to the public at large, given that such advertisement
formulates on the rules and regulations laid down on such behalf. The communication can be
through newspapers, magazines, emails, letters, events, etc. Clause 36 under Section IV
(‘Duty to Colleagues’) of the ‘Standards of Professional Conduct and Etiquette to be
Observed by Advocates’ laid 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 organisation

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or with any particular cause or matter or that he specialises 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.

What is the problem with lawyers advertising their services?

Rules in India do not allow advocates to publicise 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’.

Advertisements or Commercial Speeches has been incorporated under Article 19 (1) (a) of

the Constitution of India. It has been accepted as a part of Freedom of Speech and Expression
, The Supreme Court has considered in the case of Tata Press that the public at large has a
right to receive the commercial information and such protection of Article 19 (1) (a) of the
Constitution of India is available to both speaker and recipient of the speech. The commercial
nature of such expressions was held to be immaterial while extending the protection under the
said article of the Constitution.

And like any other fundamental right, freedom of speech and the expression is also not an
absolute right. Under Article 19 (2) of the Constitution of India, the state may impose
reasonable restriction on the exercise of such right in the interest of the public on the
following ground:

i. Sovereignty and Integrity of India

ii. Security of State

iii. Friendly relations with foreign states

iv. Public Order

v. Decency or Morality

vi. Contempt of Court

vii. Defamation

viii. Incitement to an offense

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But this right of the advertisement has been completely done away with, in the case of legal
professionals. There is a complete prohibition on a legal professional to advertise their legal
ices through the court of law. This includes any type of advertisement w.r.t. legitimate
administrations provided, by posing as a legal counselor under the legal framework.

The root of prohibition can be directly traced back to Rule 36 of the Bar Council of India as
under:

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.

This rule clearly states that the Legal Profession is different from any other profession, unlike
others soliciting work under the legal profession, has been completely banned by such rule.
The reasoning was that the legal Profession being the noblest profession will lose its light if
the advertisement is permitted within the legal market. Justice Krishna Iyer in the case of Bar
Council of Maharashtra v. M.V. Dhabolkar 1said that:
Law is not an exchange, not briefs, not stock, thus the paradise of business rivalry ought
not to vulgarize the lawful calling. It is the idea that legal advertising will render this
prestigious profession into a mere profit-making institution which will manoeuvre the focus
from the concepts like liberty and Justice to profits.

However, there lies a cosmic debate in the legal sector and existing criticism against such
archaic BCI rules which prohibit all types and forms of advertisement. Pitting the ideas of
Reasonability, Constitutionality, and Transparency, free flow of ideas, globalization, and
liberalization against the above-said rule.

COMPARATIVE ANALYSIS (OUTSIDE INDIA)

UNITED KINGDOM: Under the Solicitors’ Code of Conduct 2007 in the United Kingdom,
advertising is allowed for lawyers. The Code is made by the Solicitors Regulation Authority,
the regulatory body for solicitors in England and Wales.

The Introduction to Rule 7 of the Code says:

1
Bar Council of Maharashtra v/s. M.V Dhabolkar, (1976) AIR 242

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“You are generally free to publicise your firm or practice, subject to the requirements of this
rule.”

SINGAPORE: The country’s Legal Profession Act allows advertising.

Section 4 of the Legal Profession (Publicity) Rules says:

“An advocate and solicitor may, subject to these Rules, publicise his practice or the practice
of his firm, or allow his employees or agents to do so.”

AUSTRALIA: The rules in Australia, too, are favourable.

Under Section 36 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules
2015:

“A solicitor or principal of a law practice must ensure that any advertising, marketing, or
promotion in connection with the solicitor or law practice is not: false; misleading or
deceptive or likely to mislead or deceive; offensive; or prohibited by law.”

EUROPEAN UNION: Section 2.6 of the Council of Bars and Law Societies of Europe
(CCBE) Code of 2006 provides for “Personal Publicity”.

It lays down:

“2.6.1. A lawyer is entitled to inform the public about his or her services provided that the
information is accurate and not misleading, and respectful of the obligation of confidentiality
and other core values of the profession.

LAW AS A NOBLE PROFESSION

Law is a traditional profession having public service goals at the Centre of it all. From the
start of this profession considered as an upholder and protector of law. The service under
such a sector was provided with the foremost aim to serve society and then to earn a
livelihood.

In the case of Indian Council of Legal Aid and Advice v. Bar Council of India2, the
Supreme Court enunciated that profession of law being a pious and honourable profession, its
main object being the service of mankind by serving the system of administration of justice, it
is the pious duty of the Bar Council to protect its public image by restricting the inflow of
large numbers of retired personnel who seek to enter a legal profession solely for additional
gains.

It is imperative to understand that law as a profession is nothing without its ideals and ethics.
And therefore in every law school curriculum, an important subject is taught Professional
2
Indian Council of Legal Aid and Advice v. Bar Council of India [(1995) 1 SCC 732]

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Ethics to make sure that the young law minds met with the demands of such a profession by
upholding the ideals and ethics.

Also in the case of Bar Council of Maharashtra v. M.V. Dhabolkar3, Justice Krishna Iyer
has further 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
clumsy, for the betterment of the legal business.

But the question that remained unanswered is how soliciting the service, being incidental to
the profession will affect the primary conduct of law professionals? Is it not possible to pave
a way where both the ideals go hand in hand, i.e. allowing the advertisement within the legal
market without creating any challenges against the noble profession.

Placing such strict standards and regulations on the lawyers only go against the idea of the
nobility of the profession. Such a rule-based upon the Victorian notion, although where the
British have evolved to a modern idea of the legal profession, we stuck ourselves to the
traditional and outdated idea. Word of Mouth is not enough in today s world to embrace the
sanctity of the profession, legal industry must be open for changes to thrive.

Rule 36 of BCI also stands on a very thin line constitutionally, as it is not covered properly
on any of the exceptions laid down in Article 19 (2) of the Constitution of India. The same
rule was tested in the case of V.B. Joshi v. Union of India 2008, where the scope of online
advertisement was given some relaxation to help the lawyers to reveal certain information,
such changes will not come into existence if this rule 36 comes entirely works within the
periphery of the Article 19 (2) of the Constitution of India.

And strict actions could be taken against the lawyers or law firms who still advertise through
circular letters or election manifestos or organizing moot court competitions or offering
certificate courses or written articles or using visiting cards etc. All of this adds to the
vulnerability and flawed reasoning behind this rule. Now, how can a rule safeguard the
nobility of the profession when it’s not even constitutionally sound?

NEED FOR ADVERTISING FOR ADVOCATES

Fair opportunity for clients and advocates

India is famous for its outstanding cases in the courts and the number of cases which are
pending in the courts are increasing year by year and the courts are overburdened done by the
number of cases which are filed each year each month and each day having a detrimental
effect on the country’s already overburdened judicial system. India now has almost 4 crore
pending cases spanning the Supreme Court, various high courts and the numerous district and
subordinate courts, according to written replies submitted by the Ministry of Law and Justice

3
Bar Council of Maharashtra v/s. M.V Dhabolkar, (1976) AIR 242

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in Parliament Due to lack of awareness, clients face difficulty in making an informed and
prudent decision from a competitive market because knowledge about the particular types of
service is unavailable to them. Furthermore, restricting the firm’s potential capacity to earn
more through guiding the prospective clients will limit the firm’s reach. While the clients or
persons willing to file a suit or who want justice are vulnerable to it due to the lack of
knowledge particularly lack of knowledgeable lawyers of specific fields, often people are
confused where to go to whom they visit.

Clients in India are restricted to domestic legal services providers they don’t know about the
international market and hence restricting the very exposure of clients to the justice. As a
result, it is extremely harmful because they are unable to use or explore any other person due
to a lack of options. Many a time people or clients are confused with the areas of practice of
law, they feel it confusing which case where to go or of which area of law that particular case
is related with such as criminal law, civil law, family law.

This ultimately results in the exploitation of clients and delaying in the justice. These are
some of the problems which are faced by the consumers or clients in the country at the same
time lawyers too face different types of problems because of lack of reach. There are almost
1.3 million lawyers in the country right now and the number clearly indicates the rampant
amount of competition which is going on in the legal market. Advocates face many
difficulties because of lack of reach they can’t get enough clients and hence can’t earn
enough. By promoting themselves lawyers could have gained more knowledge and thus
increasing the revenue generation of the firm. And thus, if advertisement was permissible, it
could have helped clients to approach better lawyers to seek justice and in the same way it
could have helped lawyers too in gaining more reach and thus increasing zeal and a fair
chance of opportunity among the both.

Globalization of the legal profession

It is a globalization age, and in the field of law, advanced globalization has had a significant
impact on the services rendered by an attorney. It could have been much beneficial for an
advocate to get an international exposure via connecting through advertisement. With
increased support and engagement of nations, as well as greater access to domestic markets,
globalization ushered in a revolution in foreign exchange of ideas. We can already see
various developments in the field of law by some of the international exposure which we
have gained over the past few years. One can easily understand the concept of international
exposure in legal market when we talk about India we see the evolvement of intellectual
property law, competition law, corporate law, corporate taxes law and many more provisions
which have been introduced in the country with the ousting of international exposure. Earlier
these provisions were unknown. It is undebatable that advertisement not only helps the
budding advocates to grow faster but also would have given them an international exposure
to various legal markets of the globe. Although, legal firms are embracing globalization by
integrating with larger competitors, making acquisitions, and forming strategic partnerships.

The online boom, legal process transformation, and emerging technology solutions are all
behind this economic uptick. As law firms seek to grow, the economic process has the
potential to reshape the legal industry’s landscape in the coming years. Opening of the doors
of advertisement for Indian firms and advocates will make the country’s economic position

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good and would also donate in the reputation of the country. As Despite of having 1.2 million
lawyers, Lloyd Pearson, a London-based Litigation Directories Consultant, said that due to
such advertisement constraints, the audience sees very little about many Indian firms or
lawyers having said this clearly indicates as to where India’s legal system is lacking to pick
up pace with the globe. Advertising law firms would create an international market and thus
would result in increasing competition in the Indian economy and also would result in
increasing reach of the lawyers along with foreign knowledge of law.

Impact on revenue generation

When we look at the statistics, India was ranked as the third largest advertisement market in
the world in terms of media spending, with over 700 billion Indian rupees. The most
important aspect for an advocate or a lawyer to build his/her contacts with the world to grow
and excel in the law world but because of this restriction the advocates in India can’t make
their rapport with not only international market but even with the country’s lawyers too. This
is a table below showing the proportion spent by the law firms of different countries in
advertisement.

Legal Profession a commercial activity

the amendment in rule 36 is a clear effect of the developing change in the system, where even
the legislators accepted the adaptation by introducing the exception clause in the above-
mentioned rule. The amendment to Rule 36, Section IV of the BCI rules allowed advocates
the opportunity to advertise online. It permits the advocates to upload their names, addresses,
phone numbers, e-mail IDs, enrolment details, qualifications, and area of practice on the
selected website.[5]

Earlier both direct and indirect types of advertisements were frowned upon by the rule,
several case laws existed to disallow the lawyers from indulging in such activities. In the case
of Government Pleader v. S.A pleader4, it was decided that sending a postcard displaying
the address, name, and description of an advocate would amount to the advertisement. In
another case, it was held that under the election manifestos, lawyers are prohibited to
propagate his name and advertise in the form of announcements and canvassing.

The traditional idea of the legal profession and the reasoning behind such precedents getting
faded day by day, the legal profession is being given the same treatment as any other
profession or service. The landmark case of Bangalore Water Supply v. A. Rajappa5
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which provides clarity on the term Industry included legal profession in it. Further, in the
case of K Vishnu v. National Consumer Dispute Redressal Commission7, it was observed that
4
AIR 1929 Bombay 335

5
Bangalore Water-Supply & Sewerage Board, Etc. v/s. R. Rajappa& Others,(1978), SCR (3) 207
6

7
(2000) ALD (5) 367

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advocate being regarded as an officer of the court, but cannot be set free from their basic role
of services to their clients and therefore the legal administrations can be subject to the
Consumer Protection Act, 1986.

Even in the Report of the High-Level Committee on Competition Policy and Law, under
the Chairmanship of S.V.S. Raghavan stated that:
the legislative restrictions in terms of law and self-regulation have the combined effect of
denying opportunities and growth of professional law firms, restricting their desire and ability
to compete globally, preventing the country from obtaining the advantage of India s
considerable expertise and precluding consumers of free and informed choice.8Lloyd
Pearson, London-based Legal Directories Consultant also said that because of such
advertising restrictions, the world knows very little about most Indian firms or lawyers,
despite having 1.2 million of them.9

Thus, it may be said that law service is becoming subject of trade-related laws, therefore
consumers, supplier, demand, and supply must be given adequate space to conduct activities.
Attaching such a negative image with the term trade is also unnecessary, trade is not just
about profits but also consumer satisfaction, informed choices, free flow of information, etc.

It is time to come with terms that the Legal profession is both noble as well as contain
commercial characteristics, and suppressing the later part in the limelight of the former is
simply mistaken and wrong. The courts, as well as Bar Council, must realize that such
restrictions, in reality, are imposed on the small-time lawyers or law firms, cause the lion's in
the legal market, first of all, need very little advertisement and secondly, even if they do, they
meet the need through organizing competitions or events, publishing information on
websites, using foreign-based publications, etc. These resourceful firms had found other ways
to advertise themselves to attract prospective clients and referral partners while the complete
burden of such restrictions is bearing by other lawyers with a lack of resources under the
context of the nobility of the legal profession.

CONCLUSION
Lawyers had two sets of duties, one owed to the court and the other owed to the public, these
duties also encompasses some rights within it. And as long as these rights do not interfere
with either set of duties, the lawyers are fully competent to exercise such rights. A reasonable
scope of advertisement can coexist which does not affect the honour of the Profession.

In the above-discussed case of V.B. Joshi v. Union of India, several other important issues
such as publishing brochures for distribution at seminars and having insertions in online law
dictionaries were not discussed by the court and the amendment only limited itself to online
advertisements. The amendment vividly did not take into account the illiteracy rate of India,

8
8.2.5, Chapter VII, Competition Policy and Professional Services, Report of High Level Committee on
Competition Policy and Law- S.V.S. Raghavan Committee, 2000

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http://docs.manupatra.in/newsline/articles/Upload/C74B86B2-2614-4B56-A50D-8D498A841418.pdf

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or they choose to ignore it. Not all people in India have access to the internet or even if they
do, they lack skills to utilize it at the required level.

Countries like the U.K. and the U.S. have lifted the limitations imposed on the advocates
concerning the legal advertisement by enforcing regulations to ensure that there is a particular
standard deciding the size and style of the advertisement. Although, it is a risky operation
where the negative impact may overshadow the positive aspects of advertisements and also
does not offer any guarantee that just because it is successful in other countries will be
particularly successful in India. But since when the govt. has stopped itself from enforcing
new laws which have more severe outcomes, because of the factors such as risk and chances
of not been successful.

Despite the above argument, any reasonable person can foresee that the negative factors
attached to the idea can easily be curtailed by effectively following a set of rules. A panel
could be shaped to administrate over concerning matters, for example:

1. The exploitation of the Idea: If not regulated properly, it might likely get exploited by
unscrupulous lawyers by furnishing false information, defaming others, making the
mockery of the court system, immoral punchlines, etc. to sway gullible consumers.

2. Shifting Focus: Lawyers will have to focus on publicizing themselves as well, in

addition to legal arguments, skills, and knowledge.

3. Expensive Legal Services: Lawyers will obviously incur a cost in advertising, which
will make the service of the lawyer more expensive, that will fuel another controversy
altogether.

4. Bring hatred in the Profession: Lawyers will develop jealousy amongst their
colleagues, which will impair the dignity of the profession.

Therefore, the BCI must come with the modification to put a close check over the
advertisement in the legal sector to safeguard the favored traditional notion and attract penal
provisions to punish the violators.

It is also important to note that some kind of advertisement still exists in the current legal
market especially by huge law firms or big lawyers and there is no regulations or rules to
regulate them, the position of the profession will still be far better off than sticking to the age-
old rule of BCI without even considering the advantages of the regulated legal advertisements
including opportunities to the young lawyers, free flow of information, increased awareness
among the public about the legal market, Global recognition, facilitating better services to the
domestic as well as international clients, etc.

In the age of globalization and commercialization, to justify the BCI rules, the reasoning of
law is a noble Profession is simply not enough. This rule is affecting the lawyers as well as
the public by impounding their rights incorporated under the constitution. This is the duty of

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legislators and judicial courts to harmoniously construct rules to allow advocates to advertise
while preserving the respect of the legal profession in India.

BIBLIOGRAPHY:

 ARTICLES-
http://www.barcouncilofindia.org/wp-content/uploads/2010/05/BCIRulesPartVonwar
ds.pdf
 http://docs.manupatra.in/newsline/articles/Upload/C74B86B2-2614-4B56-A50D-
8D498A841418.pdf
 WEBSITES- https://indianexpress.com/article/explained/explained-heres-why-
lawyers-in-india-cant-advertise-their-services-6096311/
 https://www.legalserviceindia.com/legal/article-3261-right-to-advertisement-of-legal-
professionals-in-india.html

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