Aim:
This article aims to provide an analysis of the problems associated with the prohibition of advertisement of legal services in India, the reasons attributed to it and a comparative analysis of different jurisdictions on the same. This article presents a case for allowing the lawyers and law firms to advertise their services, owing to the commercial nature of the profession.
Introduction to the Concept of Lawyers Advertising:
“…. 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 vulgarise the legal profession.”
– Justice Krishna Iyer[1]
The words of Justice Krishna Iyer very well reflect the Victorian notions attached with the practice of law in India. Liberalisation has been a boon for the trade. However, this concept of liberalisation is yet to permeate the legal profession in India. With a widely restrictive practice of law in India, including not allowing foreign firms to operate in India, not allowing any form of contingency lawyering, the prohibition of lawyers from advertising is yet another aspect of this problem.
India, despite having a huge number of lawyers in the country, remains ignored by the International community owing to the insufficiency of information available about their practice.[2] The Indian legislature and executive have carried on with the notions from the British era that practice of law is a noble profession[3], and have turned closed eyes towards the fact that legal services are acquiring an increasingly commercial characteristic. In order to let the legal services industry to flourish, the country has to come to terms with the fact that practicing the law is a trade, and hence, the lawyers and the law firms should be allowed to advertise their services.
This would help in transforming the Indian legal practice into a more transparent one, contrary to the current closed and protective regime. It shall also contribute in creating a more level playing field, by attracting young talent to the field, who would find the true monetary worth of their services, and at the same time, act as a deterrent to the established lawyer from charging exorbitant fees. This would, in turn, increase the competency in the legal field and the contribute to the self-regulation of the legal profession.
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 reasons 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 UK as well.
Legal Reasons:
The reasons that the lawyers and law firms are prohibited to advertise their services is due to the cumulative effect of the Advocates Act, the Rule of the Bar Council of India and other professional bodies.[4] 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.[5]
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.[6] Accordingly, Rule 36 of the BCI Rules[7] 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 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.”
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,[8] 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.[9]
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 view has been held by the Courts for 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.[10] Further, in India, where a large chunk of the population is illiterate, there are chances that the unscrupulous lawyers may exploit the public.[11]
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.[12] 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.[13] 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 the legal services are increasingly becoming subject to the trade laws. The dichotomy between the stance of the Indian courts is clearly established.
It is also pertinent to note the fact that some lawyers and the 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 focussing 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.[14]
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.[15] 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,[16]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.[17] 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.[18]
Hence, it is to be noted that the Rule 36 of the BCI Rules, which prohibits advertisement of the 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).[19] 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.[20]
Further, Article 19(1)(g) of the Constitution, guarantees a right upon the citizens to choose their employment, trade and calling,[21] which comes with an implied right to avail the resources and opportunities for effectively carrying out the trade.[22] This right is faced with similar exceptions as that of Article 19(1)(a). And the argument stands the same in furtherance of protection of this fundamental right as well. Advertisement of legal services does not contravene any of the exceptions under 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:
USA had practiced 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.[23] 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,[24] 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:
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 which highlighted the benefits of allowing advertisement of the legal services.[25] This flipped the stance of UK upside down, thereby, giving up on the age-old Victorian notions.
In UK, the law governing the advertisement of the 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.[26] The Code further provides that, the advertisement may contain the fees of the lawyer, provided that the fees is not pitched at a dangerously low levels, and that it should be accompanied by an statement that additional charges might be applicable, upon the fees.[27]
Asian Countries:
In Asia, countries such as Hong Kong, Singapore and Malaysia, have been gradually relaxing their regulations on legal advertising to adapt the global demands.[28]
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 the print media is permissible. In Singapore, legal advertisement is allowed subject to some conditions.
Reasons to Allow the Advertisement of Legal Services:
The advantages of permitting regulated advertisement of the legal services are multifaceted.
Firstly, regulated permission to advertise the legal services shall serve as a boon to the lawyers who are just starting out on their careers. Law practice is mostly based on a large appeal amongst the client base and reputation, which are hard to come by for a novice lawyer. The bigger firms and the established lawyers tend to obscure the work and talents of the smaller firms and the comparatively newer lawyers. Permitting them to advertise their services shall serve as a huge impetus to the legal industry and attract more of talent to the industry.
Secondly, the clients have a right to information and awareness. Hence, the advertisement of the legal services shall enable clients to make an informed choice about who they approach for legal services and not just rely on the word of their ‘friends’. A prohibition on advertisement of legal services serves more against the public good then for it.
Thirdly, despite churning out a huge number of lawyers in the country every year, India fails to make an impact on the world map with respect to the legal industry. There is no dearth of talent or resources. It is just the non-commercial setting which inhibits the global recognition of the Indian lawyers and law firms. India is becoming a major player in the world trade and if the legal industry does not want to fall behind in face of this changing scenario, they must adopt to the new ways and let the legal service providers advertise themselves.
Finally, the 2008 amendment to the BCI Rules allowed the legal service providers to have an online presence. However, it failed to take into consideration the fact that majority of the population in India does not have an access to internet connection. In such a scenario, there is requirement to rely on the traditional means of advertisement rather than serving to the few elite minority of the country.
There are a few disadvantages of advertisement of legal services, as has been contended by the people opposing the move. They include the fact that an unbiased choice of advocate or legal counsel would be compromised, the focus shall shift from improving legal acumen to competition amongst legal practitioners, and perhaps, the possibility of misuse.[29] But the fact remains that such practices continue anyway in the current legal scenario. It is time that we let down the veil of ignorance that we use and instead of sweeping the truth of commercialisation of legal profession under the rug, we accept it and regulate it.
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 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, publication by the partners and the associates of law firms and newspaper mentioning the names of the lawyers and law firms representing clients in the high-profile cases. All this amounts to advertisement of the legal services.[30] However, it is also to be realised that the BCI cannot be a watchdog of every advertisement made by any lawyer all across the country.
Hence, it is necessary that we realise the changing landscape of the Indian legal industry, which has already been considered an industry by the Supreme Court.[31] The legal services are increasingly being subjected to the consumer protection laws and trade laws. This calls for the legislature and executive to realise 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.[32]
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. There needs to be some sort of middle ground that needs to be reached in the current scenario, in order to foster the legal industry, which is relying heavily upon the words from mouths.
Edited by Vedanta Yadav
Quality check – Ankita Jha
Approved & Published – Sakshi Raje
Reference:
[1] Bar Council of Maharashtra v. M.V. Dadholkar, AIR 1976 SC 242.
[2] John Grimley, India to lift restrictions on law firms websites, Asia Law Portal (March 26, 2014), https://asialawportal.com/2014/03/26/india-to-lift-restrictions-on-law-firm-websites/
[3] Shivam Gomber, Right to Advertise for Lawyers, 3(1) Udgam Vigyati (2016).
[4] 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
[5] Id.
[6] Advocates Act, No. 25 of 1961, § 49(1).
[7] Rule 36, Section IV, Chapter II, Part VI, Bar Council of India Rules, 2008.
[8] Writ Petition (Civil) no. 532 of 2000.
[9] Declaration, Rule 36, Section IV, Chapter II, Part VI, Bar Council of India Rules, 2008.
[10] C.D. Sekkizhar v. Secretary Bar Council, AIR 1967 Mad. 35.
[11] Id.
[12] Isha Kalwant Singh, Advertising by Legal Professionals, Bharti Law review 277 (Oct – Dec, 2016).
[13] Suyogya Awasthy, Right to advertising of lawyers, Legally India (2016), available at: https://www.legallyindia.com/views/entry/right-to-advertising-of-lawyers
[14] 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
[15] India Const. art. 19, §1, cl. a.
[16] AIR 1995 SC 2438.
[17] Dharam Vir Singh v. Vinod Mahajan, AIR 1985 P&H 169.
[18] Sakpal Papers v. Union of India, AIR 1962 SC 305.
[19] India Const. art. 19, §2.
[20] O.K. Ghosh v. E.X. Joseph, AIR 1963 SC 812; Dalbir Singh v. State of Punjab, AIR 1962 SC 1106.
[21] India Const. art. 19, §1, cl. g.
[22] Sakpal Papers, supra note 18.
[23] 433 US 350.
[24] Rule 7.2, Model Rules of Profession Conduct, 1983.
[25] Maya Goldstein Bolocan, Professional Legal Ethics: A Comparative Perspective, CEELI Concept Paper Series 22 (2002)
[26] Rule 8.1, Solicitors’ Publicity Code, 2016.
[27] Rule 8.9, Solicitors’ Publicity Code, 2016.
[28] 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
[29] Supra note 29.
[30] Monalisa, Law firms find loopholes to promote their services, Live Mint (July 5, 2013), available at: http://www.livemint.com/Companies/vqsXsEeGYuqPli9I8TPL0O/Law-firmsfind-loopholes-to-promote-their-services.html
[31] Bangalore Water Supply & Sewerage Board v. A. Rajappa, AIR 1978 SC 548.
[32] Supra note 4.
