Lloyd Pearson, a London-based Legal Directories Consultant, notes that the majority of attorneys in the globe are from India, yet we know little about Indian Law Firms. In today’s competitive market, where people want to read reviews and recommendations from trusted sources and will make informed choices based on those recommendations from their network, without advertisement, it becomes quite challenging for a person to make that choice, especially when it comes to choosing an Advocate. There are already tens of thousands of lawyers practising in India. With an increasing number of law graduates joining the profession each year, the number of advocates in India constantly increases. Here, the old way of promotion by word of mouth falls short, and networking for a lawyer becomes difficult.
Just like Amitabh Bacchan said in an advertisement for dairy milk, “Kuch Meetha Ho Jaye”, the product's sales boomed. Similarly, if an Advocate is given a right to advertise their legal practice, everyone would benefit from knowing more about the Indian Legal Industry and Law Firms while choosing their legal needs. Therefore, this article will discuss whether lawyers can advertise their legal practice to pitch clients or not.
Do BCI permits lawyers to advertise?
According to the guidelines set forth by the Bar Council of India, lawyers cannot advertise their professional services in India. This rule originated from the archaic Victorian views of British Common law, which did not view the practice of law as a strict trade and saw attorneys as fundamental members of the judicial branch. It also has its roots in the American Jurisprudence Canons. To solicit the services of an advocate would be "unprofessional," according to Ordinance 27 of the American Bar Association Professional Ethics. Such constraint has developed due to the legal profession's view as a "noble profession" rather than a service.
Provision relating to advertisement by an Advocate
The Advocates Act 1961 governs the ethics and norms of practice for lawyers in India. Per Section 4 of the Act, the Bar Council of India and the respective State Bar Councils have the authority to create regulations governing professional legal conduct. The Bar Councils now have significant authority under Section 49(1) of the Act to create regulations governing "the standard of professional conduct" and "conditions of practice" for lawyers.
- Rule 36 under Part VI, Chapter II, Section IV of the Bar Council Rule 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.”
The BCI decided to add a clause allowing advocates to maintain websites about themselves or their law firms in order to provide information about their businesses and aid people in making more informed decisions in the year 2008. This amendment to Rule 36 of the BCI Rules became effective immediately.
Any information that is not in accordance with the information authorised by the Bar Council of India will be regarded as a violation of Rule 36, and the advocate will be made liable for misconduct under Section 35 of the Advocates Act, 1961.
The Rules on Professional Standards under the Bar Council of India Rules and the Advocates Act, 1961, governs an advocate's professional conduct in India. An advertisement by an Advocate is prohibited under the provisions of these Rules and the Legislation.
Landmark Indian Cases
In Bar Council of Maharashtra v. M.V. Dhabolkar [AIR 1976 SC 242], Justice Krishna Iyer has 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 clumsy, for the betterment of the legal business. Law is not an exchange, not briefs, not stock, thus the paradise of business rivalry ought not to vulgarize the lawful calling. It is the idea that legal advertising will render this prestigious profession into a mere profit-making institution which will maneuver the focus from the concepts like liberty and Justice to profits.”
In Dharam Vir Singh v. Vinod Mahajan [AIR 1985 P&H 169], the Punjab & Haryana High Court held that providing legal services would be a business proposition, and advertising the same would come within the purview of ‘commercial speech’ as protected by Article 19(1)(a) of the Indian Constitution.
In Indian Council of Legal Aid and Advice v. Bar Council of India [(1995) 1 SCC 732], the Supreme Court pronounced that profession of law is a pious and honourable profession, its main object being the service of mankind by serving the system of administration of justice, it is the pious duty of the Bar Council to protect its public image by restricting the inflow of large numbers of retired personnel who seek to enter a legal profession solely for additional gains.
In Tata Yellow Pages v. MTNL [AIR 1995 SC 2438], the Hon’ble Supreme Court held that commercial speech, i.e., advertising was a fundamental right to be necessarily protected by Article 19(1)(a) of the Indian Constitution. However, since a full bench did not hear the matter, the judgment did not have the effect of declaring Rule 36 of the BCI Rules unconstitutional.
In V. B. Joshi v. Union of India [Writ Petition (Civil) no. 532 of 2000], the Court observed that the scope of online advertisement was given some relaxation to help the lawyers to reveal certain information; such changes would not come into existence if this rule 36 comes entirely works within the periphery of the Article 19 (2) of the Constitution of India. This was the case that persuaded the Bar Council Rules amendment in 2008.
Position in Other Countries
United Kingdom:
The establishment of the Monopolies and Mergers Commission in 1970 and the Office of Fair Trading in 1986, which focused on the benefits of legal professionals' advertising, led to the lifting of the English ban. The regulations about legal advertising in the UK are now governed by the Solicitors Publicity Code, 1990.
United States:
After the US Supreme Court ruled in Bates v. State of Arizona that the First Amendment protected an attorney's right to advertise, the situation in the US has changed. The American Bar Association developed the Model Code of Professional Responsibility in 1969 after reclassifying the canons. The ABA updated the code with the Model Rules of Professional Practice in 1983 in an effort to further codify principles of professional conduct; Section 7 of the Model Rules expressly addresses lawyer soliciting and advertising. Advertising must be truthful and not false or misleading, according to Section 7. A lawyer may advertise by written, recorded, or electronic communication, including through public media, in accordance with the Rules.
European Union:
Personal publicity is covered under Section 2.6 of the Council of Bars and Law Societies of Europe (CCBE) Code, 2006. It states, a lawyer has the right to inform the public about his or her services so long as the information is truthful, not misleading, and considerate of the duty of secrecy and other fundamental principles of the profession. To the extent that it conforms with the standards of 2.6.1, personal publicity by a lawyer in any type of media, such as the press, radio, television, through electronic commercial communications, or otherwise, is permissible.
Australia:
According to Section 36 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015, a solicitor or principal of a law practise must ensure that any advertising, marketing, or promotion in connection with the solicitor or law practise is not false, misleading, or deceptive or likely to mislead or deceive, offensive, or prohibited by law.
Singapore:
Section 4 of the Legal Profession (Publicity) Rules states, “An advocate and solicitor may, subject to these Rules, publicise his practice or the practice of his firm, or allow his employees or agents to do so.”
Conclusion
In the past, we have seen that the BCI decided to add a clause allowing advocates to maintain websites about themselves or their law firms in order to provide information about their businesses and aid people in making more informed decisions in the year 2008 and through the development in the mindset of the Courts we can see over the cases and the development in other countries regarding the laws relating to an advertisement by an advocate, we can say that the scenario has changed since the time of inception of the rule and with the progressive mindset of the Supreme Court and other Courts in India, that can be seen through the recent judicial trends, it will go into further changes.