The author through this article seeks to examine the pros and cons of restrictions placed on advertisements by Advocates in India and makes a case for allowing advertising in legal profession.
As per Rule 36 of BCI Rules read with Section 49(1)(c) of Advocates Act, 1961, an Advocate shall
not solicit work or advertise, either directly or indirectly. This rule originates from the Victorian understanding of law as a noble profession in contrast to a trade or service. Advocates are often referred to as ‘Officers of the Court’ highlighting their stake in the cause of justice as much as in the interest of their client. Further, it is included as a duty towards colleagues to ensure fair play i.e. marketing gimmicks should not be given precedence over quality of work. Upon violation of this rule, professional misconduct proceedings may be initiated by appropriate State Bar Councils under Section 35, Advocates Act, 1961. In India it has been strictly adhered to by way of judicial pronouncements to prevent the so called commercialization of the profession.
JUDICIAL OPINION IN INDIA
In In Re A, an advocate, Supreme Court noted that if a lawyer is soliciting briefs then he is unworthy of the profession. It was held that addressing postcards with a lawyer’s name and description of his work violates the ethical code of the legal profession. In the case of Bar Council of Maharashtra v. M.V. Dahbolkar which involved advocates positioning themselves at the entrance to the Magistrate’s courts and rushing towards potential litigants, SC held that such conduct violated the ethical code of behavior expected from lawyers in addition to a violation of Rule 36 of BCI Rules, given it amounted to direct solicitation of work. Recently, Bar Council of Delhi temporarily suspended the license of an Advocate for advertising his services as a divorce lawyer by pasting his contact number on public walls.
2008 AMENDMENT: NOT ENOUGH
However, in pursuance of SC judgment in V.B. Joshi v. Union of India, in 2008 an amendment to BCI rules allowed law firms to advertise in a limited manner by providing certain information regarding their qualifications, experience, area of work and contact details on their websites. But this concession proved inadequate because websites are not accessible to illiterate people or those not familiar with use of internet. On the other hand, many loopholes are found and exploited by those who are resourceful. There is indirect advertising through sponsoring events such as moot court competitions, conferences, research articles, newspaper comments etc. In a recent case, Income Tax Tribunal held that sponsoring events by law firms is a mode of advertisement. In this way, the negatives of advertising are already existing but due to the legal restrictions it’s positive impact not visible.
The legal developments including recognition of legal profession as ‘industry’ and growing clamour for inclusion of legal services under the ambit of Consumer Protection Act can be said to indicate a tacit recognition of trade and commercial aspect of the legal profession. Moreover, a case can be made for unconstitutionality of blanket ban on advertising of legal services being violative of free speech and right to practice profession u/a 19(1)(a) and 19(1)(g) of the Constitution, respectively.
LEGAL POSITION IN OTHER COUNTRIES
In a comparative study of laws of various countries on this issue, it is apparent that many have opened doors for reform by allowing lawyers to advertise their services subject to regulations by authorities. These regulations generally provide that the information in advertisements should not be false, misleading, deceptive, offensive or in violation of confidentiality. UK’s Solicitors Publicity Code of Conduct, 2007 allows advertising subject to regulation by Solicitors’ Regulation Authority. It provides that they must not demean their independence and integrity in the process. The US Supreme Court in Bates v. State Bar of Arizona (1977) upheld the right of lawyers to advertise their services.
It is submitted that it is time that the commercial nature of legal professional services is acknowledged and regulated rather than allowing only few elite and resourceful to reap gains of indirect advertising and fostering their monopoly. Limiting solicitation to traditional reference based setup harms novice and first generation lawyers the most. There can be no better time for this reform than during this pandemic situation due to which traditional reference networks have been badly impacted. The benefits of allowing advertising in a regulated manner are manifold including enhanced competition, transparency, international exposure, a possible reduction in fees and enhanced quality of work. Thus, advertising will be beneficial for both lawyers and clients.
Outside several District Courts a number of ‘black coats’ accost potential litigants seeking to be engaged as their counsel or to take them to a good lawyer. They flock around and create a ruckus as hawkers and peddlers at a flea market undermining the integrity associated with the legal profession. If lawyers are provided legitimate avenues of advertising their professional services and securing gainful employment, they will not be forced to resort to such degradation.
About The Author
Shivani Tanwar is an LLB graduate from University of Delhi.She can be reached at firstname.lastname@example.org.
Photo Credits:The Financial Express
Standards of Professional Conduct and Etiquette, Section IV- Duty towards Colleagues ↑
AIR 1962 SC 1337. ↑
AIR 1976 SC 242. ↑
Writ Petition (Civil) no. 532 of 2000. ↑
Luthra & Luthra Law Offices v. JCIT, (2018) Income Tax Tribunal. ↑
Bangalore Water Supply & Sewerage Board v. A. Rajappa, AIR 1978 SC 548. ↑
433 U.S. 350 (1977). ↑