What if Prohibition of Advertisement in the Legal Sector

Introduction

It is illegal to promote the legal profession in India. Even if a lawyer makes a compelling
case in court, newspapers can report the story, but the name of the lawyer is undesirable.
According to Lloyd Pearson, a London-based legal adviser, India has the most lawyers in the
world, but we know very little about Indian law firms. Knowing more about the Indian legal
market would serve everyone better. Customers who buy cars have access to more
information and investigative resources than lawyers dealing with litigation.

Advertising adversely affects legal professionalism. This can cause serious harm, as a lack of
professionalism can affect the dignity and self-esteem of lawyers. Other factors include
misleading advertising and poor service quality. The fact that the legal profession is viewed
as a noble profession contributes to this negative impression of prohibition. This ban was
lifted in 2008 when the Indian Bar Association issued an order allowing lawyers and law
firms to have websites listing their contact information, qualifications and areas of expertise.
Until then, advertising was completely banned.

Lawyers are banned from public appearances in India, but many do so through business
cards, seminars, celebrations, circulars listing their names, addresses and occupations, and
campaigns. Despite the lawyers' actions attracting and violating BCI regulations,
implementation flaws have always left them unnoticed.

Legal Background

The Bar Association of India (BCI) is empowered to make rules under the Advocate’s Act to
meet its statutory obligations and it has done so through the BCI Rules. Pursuant to Rule 36
of the BCI Rules, an Advocate is prohibited from soliciting jobs or advertising, directly or
indirectly, whether through announcements, advertisements, touting, personal
communications, interviews without the assurance of a personal relationship, providing
inspirational newspaper reviews or making photographs with him Publications related to
cases in which you were involved or concerned. [1] Even a advocate’s sign, nameplate, or
stationery should not state that he is or was a president or member of a bar committee or
association, or that he is affiliated with any person or organization, or affiliated with any
particular cause or matter, or that he is Specialize in any particular type of work, or he has
served as a judge or attorney general.
The Advocate Act 1961 represents the professional ethics and principles of advocates in
India. Section 4 of the Act lays down the foundation for central bar associations, such as the
BCI and the various state bar associations, which are empowered to issue regulations
governing professional conduct. Section 49(1) of the Act surprisingly gives bar associations
detailed rules regarding “lawyer’s codes of ethics and Conduct” and "Practical Privileges".

Rule 36 of the BCI Rules [2] as laid down in the official Gazette of India dated 6th
September 1975 States:

“The advocate shall not, directly or indirectly, through notice, advertisement, touting,
personal communication, interview without assurance of personal relationship, providing or
encouraging newspaper reviews or taking photographs for publication of incidents in which
he was involved or affected. His tag or nameplate must be the proper size. The Sign,
nameplate or stationery indicates that he was president, or was a member of an attorney or
other body, or that he was affiliated with any person or body, or for any reason or matter or
that he specializes in any field.”

Under Rule 36, it may be considered totally prohibited for lawyers to advertise their services.
The subjectivity and prohibitions of Rule 36 have been tested on many occasions, leading to
conflicting decisions on the issue.

Justice Krishna Iyer pointed out that "the law is neither a transaction nor a order, nor a
commodity, so the paradise of commercial competition should not vulgar the legal
profession." For years, however, a court has ruled that "legal services" are part of "services"
provided to consumers. Lawyers are considered service providers and have responsibility to
explain to their clients any underserved services.

Madras High Court, in 1967, C.D. Sekkizhar v Secretary Bar Council [3] ruled that
solicitor advertising was limited to preventing jealousy and was not suitable for the
profession of nobility. Further, Maharashtra State Bar Association v M. V. Dabholkar [4],
the Supreme Court ruled that “commercial competition and acquisitions can degrade the legal
profession.”

Alternatively, in 1985, the High Court of Punjab and Haryana in Dharam Vir Singh v Vinod
Mahajan [5], held that providing legal type assistance would be a business advice and that
the advertising equivalent would be very close to guaranteed “Business Discourse” under
Article 19(1) (a) of the Indian Constitution.
With this in mind, the Supreme Court in its landmark decision Tata Yellow Pages v. MTNL
[6] held that the right to speak in business is a key right, which is fundamentally ensured by
Article 19(1) (a) of the Indian Constitution. Nonetheless, the judgment did not declare the
one-and-a-half-day BCI rule illegal, as the matter was not heard before the full bench.

In 2008, the ban on lawyer advertising was fully lifted and relaxed. The amendment allows
advocates to mention their names, phone numbers, email IDs, and professional and
educational qualifications on websites of their choice listing legal service providers.

Reasons for Banning Lawyers from Advertising

Two reasons can be attributed to prohibiting lawyers from advertising their services in India:
firstly, there is an ethical dilemma in the legal profession, and secondly, there are legislative
and judicial reasons that prohibit doing so.

Ethical Reasons       

The moral reason that is often cited as a justification for banning legal service advertisements
is that the practice of law is a noble profession, not a commercial service. Therefore, such a
strict concept is to maintain "professional dignity". This concept of legal services is based on
old Victorian notions of law, which are no longer used in the UK.

Legal Reasons

The reason lawyers and law firms are prohibited from advertising their services is due to the
cumulative effect of the Defenders Act, Indian Bar Association rules and other professional
bodies. [7] Attorneys must not solicit clients or do anything that might influence a potential
litigant's decision to hire one attorney or another. [8]

The Advocate Act allows the Bar Association of India (BCI) to make rules to carry out its
functions under the Act and builds on the BCI rules. [9] Accordingly, Rule 36 of the BCI
Rules [10] states:

“The advocate must not solicit work or advertise, directly or indirectly, whether through
announcements, advertisements, touting, personal communications, interviews without
assurance of personal relationship, providing or inspiring newspaper reviews or making a
photograph of him for publication in relation to the case involved or concerned. His sign or
nameplate should have a reasonable size. Signs, nameplates or stationery shall not indicate
that he is or has been the president or member of the Bar Association or any association, or
that he has been associated with any person or organization or for any particular cause or
matter, or that he specializes in any particular type of worker, Or he was a judge or attorney
general.”

Rule 36 was amended in 2008 following the Supreme Court decision in the V.B. Joshi v.
Union of India, [11] According to the case, lawyers can provide information on their website
according to a schedule and should also provide a statement that the information they provide
is true. [12]

Courts in India have long held that advertising of legal services leads to a moral depravity of
lawyers and diminishes the aristocracy of the profession. Courts have long held the view,
starting with the Madras High Court in 1967, that lawyers' advertisements would cause
jealousy among colleagues, leading to compromises in their dignity. [13] Also, in India,
where a large portion of the population is illiterate, unscrupulous lawyers may exploit the
public.

Time and time again, the courts have enforced the BCI rules literally, are very strict, and give
attorneys and law firms no room to advertise their services. [14] It is worth noting, however,
that the court also held that the Consumer Remedy Forum had jurisdiction to deal with cases
against the services provided by the Advocates. [15] Section 2(u) of the Competition Act
2002 defines the term 'service' under the Consumer Protection Act 1986. Therefore, it is
worth noting that legal services are increasingly subject to trade law. The dichotomy between
Indian court positions is clearly established.

Notably, some lawyers and influential law firms manage to advertise their legal services. One
such example is a circular letter or election manifesto issued by an advocate, although illegal,
providing his name, occupation and address as an indirect advertising means. Law firms with
sufficient financial resources sponsor moot court competitions focus on specific areas of law,
highlight the cases they handle through research articles, and utilize social media platforms.
[16]

Status in different countries

Countries such as the UK and the US have eased restrictions on legal advertising for lawyers
by implementing laws that ensure uniformity of ad sizes and types. While this is a riskier
operation in which the bad effects of advertising may outweigh the good factors, there is no
guarantee that it will be particularly successful in India, as it has already been successful in
other countries. Since then, however, the government has not implemented other, more
serious laws, citing factors such as risk and the likelihood of failure.

United States of America

The situation in the United States was comparable to that of India until 1977. The American
Bar Association's Code of Ethics 27 declares that it is unethical to solicit professional jobs
through advertising. It is now a constitutionally protected right following the U.S. Supreme
Court decision in Bates v. State Bar of Arizona. [17] The 1983 Model Rules of Professional
Conduct govern the advertising of legal professionals in the United States.

Attorneys may, in accordance with the rules, promote their services through written,
recorded, or electronic communications (including public media), provided the following
requirements are met: [18] there should be no inaccurate or misleading statements about
attorneys or attorney services.

United Kingdom

The UK has banned advertising of legal services due to Victorian outdated notions. However,
in 1970 and 1986, the Monopoly and Mergers Commission and the Office of Fair Trading
issued reports highlighting the advantages of allowing legal services to be advertised. This
turned the situation in Britain upside down and old Victorian assumptions were overturned.
The Solicitor’s Publicity Code, 1990 governs the advertising of legal services in the UK and
is regularly amended. According to the Code, legal services advertisements must not be
deceptive and must provide sufficient information to enable clients to make an informed
decision. Therefore, the customer's right to information is resolved. The code further states
that attorneys’ fees may be included in advertisements provided the fee is not dangerously
low, and the advertisement is accompanied by a statement that additional fees may be
charged. [19]

Conclusion

In today's world of marketing and advertising, bar associations, under the influence of this so-
called legal profession aristocracy, have seized the right of Indian lawyers to advertise
themselves. It should always be borne in mind that advertising has millions of other benefits
to society, not its ill effects on customers' opinions. Many countries around the world have
lifted the ban on the traditional rule of no advertising for the legal profession. It's time for the
Bar Association to understand that every litigant has the right to a platform where he can find
the best lawyer and get the most value for his money in his pocket. In today's era of
liberalization, privatization, and globalization, lawyers are supposed to compete on an
international level and win international clients, but the Rule 36 shield is hindering that
ambition. The rule is bad for both lawyers and clients, but the Bar Association of India does
not see any lasting reason for the impediment to repealing the rule.

Lawyers have two sets of responsibilities, one to the court and one to the public; these
responsibilities also include some rights. Lawyers are fully capable of exercising these rights
as long as they do not conflict with any set of responsibilities. Quite extensive advertising can
survive without compromising industry accolades. In the V.B. Joshi v. Union of India’s
case, the court did not address several other related issues, such as the distribution of
pamphlets at seminars and the insertion of content in online legal dictionaries, the amendment
only applies to online advertising. [20]

In this era of globalization, advertising and promotion are the weapons of professionals and
the shield of serving consumers. Advertising restrictions in the legal industry are not good for
lawyers or clients. Competent authorities should recognize this and stop this outdated practice
is over. Only in this way can the dual advantages for lawyers and clients be fully realized.

References

1. https://indiankanoon.org/search/?formInput=rule%2036%20of%20bar%20council
%20of%20india
2. Section IV (Duty to Colleagues) of Chapter II (Standards of Professional Conduct
and Etiquette) of Part VI (Rules Governing Advocates)
3. AIR 1967 Mad 35
4.  (1976) 2 SCC 291
5. AIR 1985 P&H 169
6. (1995) 5 SCC 139
7. 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
8. 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
9. Advocates Act, No. 25 of 1961, § 49(1).
10. Rule 36, Section IV, Chapter II, Part VI, Bar Council of India Rules, 2008.
11. Writ Petition (Civil) no. 532 of 2000.
12. Declaration, Rule 36, Section IV, Chapter II, Part VI, Bar Council of India Rules,
2008.
13. C.D. Sekkizhar v. Secretary Bar Council, AIR 1967 Mad. 35.
14. Isha Kalwant Singh, Advertising by Legal Professionals, Bharti Law review 277
(Oct-Dec, 2016).
15. Suyogya Awasthy, Right to advertising of lawyers, Legally India (2016), available at:
http://www.legallyindia.com/views/entry/right-to-advertising-of-lawyers
16. Somesh Dutta, A case to relax advertising restrictions for legal practitioners, The
Hindu (July 9, 2018), https://www.thehindu.com/opinion/op-ed/
17. https://supreme.justia.com/cases/federal/us/433/350/
18. Rule 7.2, Model Rules of Profession Conduct, 1983
19. Rule 8.1, 8.7, 8.9 Solicitors’ Publicity Code, 2016.
20. https://www.livemint.com/Politics/BfkOFDobWdlD34MuoMBhII/SC-to-
consider-Bar-Council-plan-on-lawyers-advertising-onlin.html