Advertising In Legal Profession
Despite having a thousand lawyers enrolled with bar council every year, neither law professionals nor the law firms have the right to advertise their profession. Lawyers are prohibited from doing anything that might influence prospective client. The prohibition on advertising is based on the old British notion that law is a “noble profession”. It can be argued that in the information age, the consumer of legal services is entitled to get information about the lawyer or law firm like consumers of any other services and to utilize his money efficiently. Irrespective of this prohibition, many big law firms find their way to advertise which puts small firms in a disadvantageous position. Herein we will examine (i) the reasons behind the prohibition on advertising by legal professionals (ii) the nature and extent of prohibition (iii) the constitutional validity of the prohibition (iv) current scenario and the need to reform.
In India advertising in the legal profession is prohibited. Even if a lawyer argues a case splendidly in the Court of Law, the newspaper may report the issue but lawyers name in the news will be frowned upon. As Lloyd Pearson, a London-based Legal Directories Consultant states that India has most of the lawyers in the world, yet we know little about Indian Firms; everyone would be better served if we knew more about the Indian legal market. A person buying a car has more information and research resources than the person handling over litigation to a lawyer.
Advertisements have an adverse effect on legal professionalism. This can lead to very real harm, as a lack of professionalism can undermine a lawyer’s sense of dignity and self-worth. Other reasons include the misleading nature of advertisement and the loss of quality in services. Justice Krishna Iyer, in the case of Bar Council of Maharashtra v. M.V. Dadholkar, 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 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”. This perception about the prohibition stems from the very fact that the legal profession is considered as a noble profession.The prohibition was relaxed in the year 2008, when the Bar Council of India passed a resolution to the effect that lawyers and the law firms were allowed to have their website with their contact information, qualification, and the area of specialization, until then, there was a blanket ban on the advertising.
Notwithstanding the prohibition on advertising by legal professionals in India, many lawyers do advertise through visiting cards, seminars and felicitation ceremonies, issuing circular letters or election manifestoes with name, address, and profession printed on it. Albeit, activities by lawyers attract the BCI rules and are in contravention of them, yet the loopholes in implementation always let them go unnoticed.
Position In United States And United Kingdom
Position in the United States:
The U.S and India were on equal terms till 1977. Canon 27 of the Professional Ethics of American Bar Association(ABA) stated that it was unprofessional to solicit professional employment by advertisements. The situation has now changed by the decision of US Supreme Court in Bates v. State of Arizonain which advertising rights of the lawyer were constitutionally protected under the First Amendment.
In 1969, the ABA reclassified the canons and created the Model Code of Professional Responsibility. In 1983, in an effort to further codify standards of legal conduct, the ABA replaced the code with the Model Rules of Professional Conduct; Section 7of the Model Rules deals specifically with lawyer advertising and solicitation. According to Section 7, advertisements must be truthful and not deceptive or misleading. According to Rules, a lawyer may advertise through written, recorded or electronic communication, including public media.
However, these rights are subject to the following restrictions:
(i) No false or misleading communication should be made about the lawyer or the lawyer’s services.
(ii) No lawyer shall solicit professional employment in person, through live telephone or electronic contract when a significant motive is the lawyer’s pecuniary gain.
The archaic prohibition on advertising by lawyers has been changed in the U.S., a broad and liberal view has been given to the right of advocates to advertise. The liberal view of allowing the law professional to advertise has replaced the orthodoxy of the prohibition which in turn helps the consumer to hire the best legal services according to their needs.
Position in United Kingdom:
In England, advertising was viewed as clashing with the expert or professional character of lawyers till 1970. However, advertising administration in the U.K. has since changed dramatically.The English ban was lifted by the coming of the Monopolies and Mergers Commission in 1970 and the Office of Fair Trading in 1986, where the advantages of advertising by legal professionals were focused upon.The Solicitors Publicity Code, 1990governs the laws related to legal advertising. Publicity by a solicitor ought not to be misleading and it should provide sufficient information to ensure that the clients can make informed choices.
Indian Position: Advocates Act, 1961 And Bar Council of India
As mentioned above, common law countries like the US and UK have moved on from the old law i.e. prohibition of advertising by a legal professional. In contrast to these countries, lawyers in India cannot advertise. Section 4 of the Advocates act talks about the formation of the Bar Council of India and under section 7 (1) (b) read with section 49 (1) (c) of the act, the BCI can restrict the lawyers and firms to make their expert sites and the distribution of their commercials on the web.
According to Rule 36 of the BCI rules, an advocate is prohibited from advertising either directly or indirectly. The un-amended Rule 36 of the BCI rules prohibits a Lawyer from advertising either directly or indirectly. However, after the BCI passed the resolution in 2008 amending the rule 36, advocates are allowed to furnish information such as name, address, telephone numbers, email id’s, professional and academic qualifications, information related to enrollment and area of practice on their websites. Legal professionals who provide this information are also required to make a declaration that they have furnished true information.
Constitution of India guarantees Freedom of speech and expression under Section 19(1)(a), the only exceptions to this freedom are in the interest of Sovereignty, integrity, and security of the state, friendly relation with the foreign states, public order, morality or in relation to contempt of court, incitement of an offence and defamation.In the case of Tata Yellow Pasges v. MTNL the Hon’ble Supreme Court held that the freedom of speech and expression extends to commercial speech, i.e. advertising. Also, in the case of Dharamvir Singh v.Vinod Majahan it was held by the Court that since legal profession involves business proposition, advertising comes within the definition of commercial speech.
From the above analysis of article and cases, it can be concluded that Rule 36 of Bar Council of India does not satisfy any of the conditions specified in the constitution. Further, it can be argued that Rule 36 violates the freedom to carry on trade, profession or business enshrined under Article 19(1)(g) of the Constitution of India. Article 19 (1) (g) confers each citizen with the privilege to choose his own livelihood or to take up any exchange or calling, and this privilege includes the right of benefitting everyone of the methods and assets including advertising.Therefore the ban on legal advertising under Rule 36 is unconstitutional and excessive in nature.
Sociological Jurisprudence Perspective
Legal advertising can easily be related to sociological perspective. Professor Marc Galanter in an essay titled “Why the Haves Come out Ahead” says that social inequalities produce legal inequalities. He defined two types of groups in society with respect to litigation, i.e. One shot player and Repeat Player. The former has only occasional recourse to courts while the latter are engaged in the same litigation. The repeat players have their own counsel who is well versed with the legal precedents and courts, while on the other hand, one shot players do not have such an advantage.
If the lawyer is allowed to advertise his legal practice with the help of some media, then the one shot players can also have better chances of appointing a best lawyer and make proper use of their money. The Legal advertisement will bring equality between one shot player and repeat players. One shot players will not face any difficulty in finding lawyers who are well versed in the legal area.
In the era of promotion and advertisement, Indian lawyers are denied the right to advertise their profession, under the pretext of the so-called nobility of the profession. It must always be remembered that advertising is not gratuitous; it promotes legal awareness and gives the litigants an opportunity to evaluate the potential of their counsel. Many countries have lifted the archaic ban on the legal advertising. The adverse effect of prohibiting the legal advertising is that many of the litigants are at the mercy of “friends of a friend” for their legal requirements. Clients enter into the courts without having any prior idea of the usual fees for similar cases. It is time for the Bar Council, along with the legal fraternity in India to realize that the legal system is not all about lawyers. Rather, it is that “noble profession” which serves the needs of the public at large. Similar to any other service, every litigant must be provided with the platform where he can identify the most suitable counsel and be able to obtain the best value for their money.
In this era of globalization, where on the one hand advertisements and promotions are weapons for the professionals, they also act as a shields for the consumer of the services. The restrictions on the advertising in the legal profession are good neither for the lawyers nor for the clients. It is the time that the concerned authorities realize it soon and this archaic practice comes to end. It is only then, that the dual benefit, both to lawyers and to the consumers can be served well.
# M.L.Sarin and Harpreet Giani,Prohibition of Advertisement in the Legal Services Sector,Indian Law Journal,http://www.indialawjournal.org/archives/volume1/issue_1/legal_articles_sarin.html.
# John Grimley,India to lift restrictions on law firm websites, ASIA LAW PORTAL,(March 26, 2014),https://asialawportal.com/2014/03/26/india-to-lift-restrictions-on-law-firm-websites/.
# Supra, at 1.
# Ted Schneyer, “Professionalism”as Pathology: The ABA’s Latest Policy Debate on Nonlawyer Ownership of Law Practice Entities,89 Fordham Urban Law Journal Vol. 40 Issue 1 Article 15(2013).
# Bar Council of Maharashtrav.M.V. Dadholkar,1976 AIR 242.
# Shivam Gomber, Right to Advertise for Lawyers,UdgamVigyati Vol. 3 (2016)
# Resolution No. 50/2008.
# See Amendment to Rule 36, Ms. IshaKalwant Singh,Advertising by Legal Professionals,Bharti Law Review (Oct-Dec, 2016).
# Supra, at 6.
# Batesv.State of Arizona,433 U.S. 350.
# Model Rules of Professional Conduct, 1969.
# Rule 7.2, Model Rules of Professional Conduct, 1983
# Rule 7.1, Model Rules of Professional Conduct, 1983
# Rule 7.3, Model Rules of Professional Conduct, 1983
# Supra, at 6
# Supra, at 8
# Amended in 2016.
# Rule 8.1, Solicitors’ Publicity Code, 2016.
# Section 4, Advocates Act, 1961.
# Section 7 and 49, Advocates Act, 1961.
# Rule 36, Section IV, Chapter II, Part VI, Bar Council Of India Rules, 2008
# Declaration, Rule 36, Section IV, Chapter II, Part VI, Bar Council of India Rules, 2008
# Article 19(2), Constitution of India
# P.S. Khuran, Legal Eye, Article 5,http://www.legaleye.co.in/index.php/e-artickes/213-e-articles/2566-article-5
# Tata Yellow Pasgesv. MTNL,1995 AIR 2438
# Dharamvir Singhv.Vinod Majahan,AIR 1985 P&H 169
# Supra, at 6.
# Marc Galanter, Why the Have Comes Out Ahead: The Classical Essay an New Observations,(Quid Pro LLC 2014)(1974)
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