“The canons of ethics and propriety for the legal profession totally taboos the conduct by way of soliciting, advertising, scrambling and other obnoxious practices”
– Justice Krishna Iyer
Advocacy is celebrated as an esteemed and prestigious profession in India. It is assessed by the standards of legal ethics and are considered an inevitable part of the legal world. The Bar Council of India (hereinafter referred as BCI) presents a strict adherence to the standards with respect to the legal community. One of the codifications lies on the very fact that Indian Law firms and lawyers in India cannot or are not allowed to advertise their practice in the market.[i] There is a total prohibition on advertising or publicizing the lawyers’ own capabilities.
There have been vivid discussions on amending Rule 36 by adding a proviso, thereby, permitting the advocates to maintain websites on themselves or on their law firms in order to disseminate information and enable the public to be aware of the existence, along with choices. Reinforcement on the idea of not vandalising a profession of such magnum, Krishna Iyer had noted, law is not a trade, not briefs, not merchandise, and so the heaven of commercial competition should not vulgarize the legal profession.[ii]
The discussion lies on the fact that legal sector must be qualifiedly beneficial to all demanding the service. Our Apex Court has observed this on many instances where this profession has been casually approached with profitability overpowering the sweat and soul to devote on commitment. Such practises amount to not only contempt of court but a bleach to the positive service to the litigants. Many countries outside India resort to Legal Processing Outsourcing (LPO) globally to gain the best of legal services at competitive pricing.
Rule 36 under Section IV (Duty to Colleagues) of the BCI Rules succinctly 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 photograph to be published in connection with cases in which he has been engaged or concerned.
- The sign-board or name-plate or stationery should be of reasonable size and 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 work or that he has been a Judge or an Advocate General.
Judiciary and BCI take on the instance
Rule 36 of the Bar Council of India Rules under Section IV (Duty to Colleagues) of Chapter II (Standards of Professional Conduct and Etiquette) of Part IV (Rules Governing Advocates) has quite been dicey.With the advent of globalization and liberalization and the new economic order, there has been a debate in the legal sector about the archaic and the stringent rules of the Bar Council of India regarding the permission of advertising by advocates. Every form of advertisement is banned.
The judiciary, over the course of years, has distinctly acknowledged the substance of such restriction via stances of several cases. ‘Legal Service’ has started been respected as rendering a ‘service’[iii] to the consumers which must serve the purpose of making the lawyers accountable to their clients in the case of negligence and deficiency. Madras High Court has opined in view of the Consumer Protection Act, 1986[iv], where Consumer Redressal Forums possess the requisite jurisdiction to deal with claims against advocates. Legal services, thus, are been subjected to the realms of trade, consumerism and market forces and must be given their adequate space in justification on the grounds of public policy and dignity of profession. In one of the infamous cases of Bates v. State Bar of Arizona,[v] the Supreme Court of the States stated that a ban on advertising legal profession inhibits the free flow of information and kept the public in abeyance in regards to information ignorance.
For the reasoning of not permitting the allowance is because of the standard of the profession befitted with the traits of honour, dignity and nobility. A more palatable reason can be to safeguard the illiterate population from unscrupulous lawyers. It is the customers rights and content which will be at stake.[vi] Further, an advocate cannot misuse the election manifestoes to propagate his name or profession.[vii] Furthermore, writing articles with under-signatures where the advocates tend to describe themselves as legal practitioners was opined as a cheap way of advertisement.[viii] It was considered a professional misconduct with realising the harsh extent of the nature of advertising in India.[ix]
New take on the stance
The Report of the High-Level Committee on Competition Policy and Law under the Chairmanship of Shri S.V.S. Raghavan has assertively summed up the regulatory system in professional services, stating that “the legislative restrictions in terms of law and self-regulation have the combined effect of denying opportunities and growth of professional firms, restricting their desire and ability to compete globally, preventing the country from obtaining advantage of India’s considerable expertise and precluding consumers from opportunity of free and informed choice.” New addition to this advertising corner of legal fraternity has taken a turn with the case of V B Joshi v. Union of India, in which the amendment to Rule 36 has been approved of. BCI has permitted the advocates to furnish information on the internet. Justice S H Kapadia suggested for an inclusion of ‘area of specialisation’ and ‘years of experience’ to make the piece more concise and detailed. The Schedule permits the advocates to display their names, address, email, telephone numbers, enrolment number and date, professional and academic qualifications and areas of specialization.
Soliciting legal services is a boon to the world of litigation. The advertising might be maneuvered into something that shall render the pristine profession into a profit-making institution. The core function of the legal profession is to promote the administration of justice. If the practice of law is a public utility of great implications and a monopoly is statutorily granted by the nation, there must be an obligation for the lawyers to observe scrupulously those norms which make him worthy of winning the confidence of the community in him as a vehicle of justice-social justice. It must be duly noted that legal advertising is not for publicity, but in the interest of the public, for making people aware of their informed choices.
“The views of the authors are personal“
[i] Rule 36 of the Bar Council of India Rules, Under the Advocate Act, 1961.
[ii] BCI v. M.V. Dhabolkar, 1976 AIR 242 (India).
[iii] Consumer Protection Act, 1986, § 2(U), No. 68, Acts of Parliament, 1973 (India).
[iv] Consumer Protection Act, 1986, § 3, No. 68, Acts of Parliament, 1973 (India).
[v] Bates v. State Bar of Arizona, (1977) 433 U.S. 350.
[vi] Government Pleader v. S A Pleader, AIR 1929 Bom 335 (India).
[vii] C D Sekkizhar v. Secretary, Bar Council, Madras, AIR 1967 Mad 35 (India).
[viii] Re: (Thirteen) Advocates v. Unknown, AIR 1934 All 1067 (India).
[ix] J N Gupta v. State of West Bengal and Anr., AIR 1959 Cal 141 (India).