Law Community (I) Team
Legal Profession is viewed as a ‘noble profession’ and not a service. As per the guidelines of Bar Council of India, Indian lawyers are not allowed to advertise their profession. This rule traces its roots to Victorian views of British Common law, which viewed lawyers as essential members of the judicial branch and disapproved the practice of law as a strict trade. Additionally, as per the American Jurisprudence Canons, Ordinance 27 of the American Bar Association’s Professional Ethics, it would be “unprofessional” to solicit the services of an advocate.
Legal advertising implies publicizing of legal services given by a lawyer or a law firm to bring in potential clients. Such publicizing or advertising might be done through different mediums like print, TV and web-based promotion virtually, and so on. On the other hand, ‘solicitation’ essentially means to request in a convincing way or approach. Solicitation refers to any correspondence started by or on behalf of a lawyer directed towards a particular individual with the information that such individual is seeking legal services in a specific matter proposing to offer to provide such services thereof.
In the case of Bar Council of Maharashtra v. M. V. Dabholkar, the Supreme Court ruled that “Law is no trade, briefs no merchandise and so the leaven of commercial competition or procurement should not vulgarise the legal profession”.
In India, the ethics and standards of practice for lawyers are governed by the Advocates Act of 1961 (the Act). In accordance with Section 4 of the Act, the Bar Council of India (BCI) as well as the State Bar Councils (SBCs) have the authority to establish rules and regulations for professional legal conduct. According to Section 49(1) of the Act, the BCI now has an authority to set “the standard of professional conduct” and “conditions of practice” for lawyers. In exercise of this power endowed by the Act, BCI has framed several rules under Chapter II of Part VI laying down the ‘Standards of Professional Conduct and Etiquette’ (the Rules).
As per Rule 36 of the Rules, “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,”. There should be reasonable size of his name plate but should not have any indication on the signboard, nameplate, or stationery that he is or has ever been President of a Bar Council, a member of a Bar Council, or associated with any person, organization, or with cause, or that he specializes in a particular type of worker, or that he has ever served as an Advocate General or a Judge.
In 2008, the BCI made the decision to add a clause to provide some relaxation that allowed advocates to create websites about themselves or their law firms to help people make better decisions and learn more about their businesses, under intimation to BCI. Further, any contravention to Rule 36 will amount to a violation, and the advocate will be held liable for misconduct under Section 35 of the Act. An advocate’s professional behavior in India is governed by the Rules
Let’s understand the position in light of a few landmark judgments. The Supreme Court observed in the case of Indian Council of Legal Aid and Advice v. Bar Council of India that the legal profession is a pious and honorable profession whose primary goal is to serve humanity and provide justice of law. According to the Supreme Court, the BCI has a pious duty to protect its public image by limiting the number of retired employees who want to enter the legal profession solely for additional gains. Rule 36 of the BCI is still not stated in any of the exceptions outlined in Article 19(2) of the Indian Constitution.
“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,” this is stated by Justice Krishna Iyer in Bar Council of Maharashtra v. M.V. Dhabolkar. Law is not like stock, briefs, or an exchange; therefore, the paradise of business rivalry should not denigrate the legal calling. The notion that legal advertising will reduce this eminent field to merely a profit-making institution shifts the focus from concepts like liberty and justice to profits, marketing and business.
According to the Punjab & Haryana High Court’s decision in Dharam Vir Singh v. Vinod Mahajan, advertising legal services falls under the definition of “commercial speech” as defined by Article 19(1)(a) of the Indian Constitution.
The Hon’ble Supreme Court ruled in Tata Yellow Pages v. MTNL that commercial speech, also known as advertising, was a fundamental right that must be protected by Article 19(1)(a) of the Constitution of India. However, the judgment did not have the effect of declaring Rule 36 of the BCI Rules unconstitutional because a full bench did not hear the case.
In the case of V.B. Joshi v. Union of India , the Rule 36 was tested in which the scope of online advertisement was given some relaxation to allow lawyers to disclose certain information. However, these changes will not occur if rule 36 entirely operates under the ambit of Article 19(2) of the Indian Constitution.
For the time being there are numerous legal-tech platforms, which enable advocates to list their qualifications, expertise, and experience, and are currently emerging in the legal field.
It’s been a long time since the legal profession has relied on word-of-mouth. Now it’s time for the Indian legal industry to embrace change and promote their brand or services effectively. It is pertinent to note that in order to prevent malpractice, the legislature must draft specific advertising guidelines for the legal profession.
We can conclude that the situation has changed since the rule’s inception 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.