Open Access Research Article
RIGHT TO ADVERTISEMENT OF INDIAN LEGAL PROFESSIONALS - by Nishtha Wadhawan and J Tanisha
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Article Details
RIGHT TO ADVERTISEMENT OF
INDIAN LEGAL PROFESSIONALS
Authored by –
Nishtha Wadhawan and J
Tanisha
Abstract
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. Anything an attorney does
that might sway a potential client is forbidden. This is stated in Advocates
Act of 1961, and Bar Council of India ("BCI") Rules. The historic British idea that law is a
"noble profession" is the foundation for the ban on advertising in
the Indian society. It may be argued that in the information age, customers of
legal services have the same rights as customers of other services to learn
more about the attorney or law firm they are hiring and to make the best use of
their money. Despite this ban, a lot of large law firms nevertheless find a way
to advertise, which disadvantages smaller companies.
Keywords: Lawyers, Advocates Act, Bar council
of India Rules, Advertising, Legal services.
Introduction
One of the fundamental aspects of
operating any kind of business, profession, or organisation in the modern world
is the right to advertise. It offers a platform for disseminating any kind of
information to the general public, provided that the advertisement conforms to
the guidelines established in this regard. The communication may take the form
of letters, emails, newspapers, magazines, events, etc.
Article 19 (1) (a) of the Indian
Constitution has been amended to include advertisements and commercial
speeches. The Supreme Court acknowledged this as a component of freedom of
speech and expression when it ruled in the case of Tata Press (1995 SCC (5) 139)
that the general public has a right to receive commercial information and that
both the speaker and the recipient of the speech are entitled to protection
under Article 19 (1) (a) of the Indian Constitution. When expanding the
protection provided by the aforementioned Constitutional clause, it was
determined that the commercial nature of such expressions was irrelevant.
Additionally, just like any other
fundamental right, the freedom of speech and expression does not come with any
guarantees. In order to protect the general welfare, the state may impose
reasonable restrictions on the exercise of this right under Article 19(2) of
the Indian Constitution.
But in the case of legal
practitioners, this freedom to promote has been completely eliminated. Any attempt
by a legal expert to promote their services through a court of law is
completely prohibited. This includes any form of advertising regarding
legitimate services offered by someone appearing as a legal advisor in
accordance with the law.[1]
In India, lawyers do not have the
privilege to promote and market their services in an effort to attract clients.
In actuality, it is forbidden by law. This is stated in section 49 (1)(c) of
the Advocates Act of 1961, read with rule 36 of the Bar Council of India ("BCI")
Rules.[2] The aforementioned rule ["Rule 36"] is
ambiguously worded and appears to completely forbid the right to advertise for
lawyers. We arrived at the current state of the legislation as a result of an
adjustment to the BCI regulations in 2008. As written, Rule 36 limits the
amount of basic information attorneys may provide online to their name,
enrollment number, professional and academic credentials, and fields of
practise. As written, Rule 36 limits the amount of basic information attorneys
may provide online to their name, enrollment number, professional and academic
credentials, and fields of practise. Any additional information outside of what
is required by Rule 36 will subject the attorney to disciplinary action under
section 35 of the Advocates Act, 1961.[3]
Constitutional
Validity of Rule 36
According to Section 19(1)(a) of the
Indian Constitution, freedom of speech and expression is guaranteed. The only
circumstances in which this freedom is not guaranteed are when it is necessary
for the sovereignty, integrity, and security of the nation, friendly relations
with other nations, public order, morality, or situations involving defamation,
incitement to commit a crime, or contempt of court. The Hon'ble Supreme Court
ruled in Tata Yellow Pages v. MTNL[4] that the freedom of speech and expression
includes commercial communication, or advertisement. Additionally, the court
determined that as the legal profession contains business propositions,
advertising falls under the definition of commercial speech in the case of Dharamvir
Singh v. Vinod Majajan.[5]
The legal profession was recognised
as an industry by the courts in Bangalore Water
Supply v. A Rajappa[6] which shows that the idea of nobility in the
legal profession's traditional beliefs has changed into a routine business-like
role. A further factor that gives the profession a commercial tone is the
dominance of a lawyer's responsibility to their client over their duty to
justice as an officer of the court.[7] As a result, despite criticism and debate regarding
the legitimacy and chronistic validity of the restriction on law firm
advertising, a court of law has not ruled that Rule 36's provisions violate the
constitution. In addition, the regulations of the BCI were established legally
in accordance with the Advocates Act.[8]
Judicial
Approach
Advertising by lawyers is considered
to be repugnant behaviour, as the Madras High Court explained in 1967[9],
because the standards that lawyers jealously develop and set for themselves are
unworthy of the honour, dignity, and position of the noble profession. A major
portion of the population in a nation like India is uneducated, which creates
an environment where dishonest lawyers may take advantage of the public,
despite the fact that the practise of law is traditionally one with a focus on
public service.
The Indian judiciary has
significantly contributed to maintaining the honour of the legal profession and
ensuring that lawyers can discharge their duty to the Court without
interference. It was determined in the case of R. N. Sharma, Advocate v.
State of Haryana[10]
that an advocate is an officer of the court and that the legal profession is
not a trade or a business. Rather, it is a noble profession, and advocates must
work to secure justice for their clients within the bounds of the law.
What constitutes advertising in the
legal profession, however, is a significant topic. The same has been
established under numerous judgements of the Indian Courts in addition to the
BCI Rules. In the case of Government Pleader v. S. A. Pleader[11],
it was decided that sending a post card with only his address, name, and
description on it would be considered advertising on his behalf and a violation
of the ethical norms of conduct for advocates.
In Re: (Thirteen) Advocates v.
Unknown[12],
it was determined that writing newspaper articles in which the author
identifies himself as an advocate working in courts is a low-cost method of
endorsing one's services. In S. K. Naicker v. Authorized Officer[13],
the Madras High Court ruled that an advocate's nameplate or sign board should
be of a moderate size and that it is improper for an advocate to sign articles
for publication in newspapers because both actions constitute unauthorised
legal advertising.[14]
Position of
Law in the United Kingdom
Historically, all types of
advertising for lawyers were prohibited in England under the outdated Victorian
laws. However, prohibitions on advertising were loosened in the 1970s due to
the danger of competition and its effects. The restriction was overturned
following an examination by the Monopolies and Mergers Commission in 1970 and
the Office of Fair Trading in 1986, when the benefits of legal marketing were
emphasised.[15] A new
regime for advertising was created as a result of the strict rules of advertising.
The Solicitors' Publicity Code, 1990, which was most recently updated in 2016
to reflect modern practises, currently regulates advertising for all legal
professionals. Additionally, the Solicitors Regulation Authority (SRA) should
approve all information provided by advocates for public consumption, and the
SRA should be in charge of all advertising regulations. The courts have ruled
that no advertisement should compromise the reputation of the legal profession.[16]
Position of
Law in the United States of America
With a complete ban on advertising,
the United States and India both have comparable limitations. Similar to the
current Rule 36 in India, Canon 27 of the American Bar Association's (ABA)
Profession Ethics stated that advertising by legal professionals was improper
and prohibited[17]. After
the US Supreme Court's ruling in Bates v. State of Arizona, this
position was later modified in 1977. In one instance, two attorneys launched
free legal services for those who couldn't afford representation. They admitted
that the only practical way to run their business was to advertise their
services, which was against the law at the time.
The Court ultimately decided that
such a broad prohibition on advertising would violate the First Amendment's
guarantee of the freedom of speech and expression in this case and be
unconstitutional. As a result, the US Supreme Court declared[18]
that the freedom to advertise is a constitutionally protected right. Currently,
the 1983 Model Rules of Professional Conduct govern advertising in the United
States. All forms of advertising are acceptable as long as they don't contain
false or deceptive information about the lawyer's services or promote
professional employment for financial gain.[19]
Evolution
of the Legal Profession
Opinions on whether or not legal
professions should be allowed to employ advertisements are equivocal, with one
group of people favouring this. Others think that this business-oriented
perspective might compromise the goals of public policy on access to legal
services. The definition of an advertisement and what its adjuncts are in the
system is another area where there is uncertainty.
Due to the ambiguous rule regarding
marketing in the nation, it has been observed that hoardings and posters have
been used to advertise the services that attorneys perform along with their
names and titles. Media reports on cases frequently feature the conclusions and
rulings of illustrious clients; these are then published on media channels in
the form of interviews and recordings, where they serve as a vehicle for
commercialization. As a way to elevate their firm, some well-known legal firms
also employ the names of illustrious attorneys. Publicizing articles published
by colleagues, displaying the success of companies through the accomplishments
of their employees, and giving clients with a range of disclaimers before
hiring a company are still other ways of advertising. The public must recognise
that not all actions can be restricted because this is then considered
advertising.[20] However,
one must face the simple reality that synchronised advertising has been curbed
by a number of regulations brought about by the legal profession's and
legislation connected to consumerism's swift developments.
The decision in K. Vishnu v.
National Consumer Disputes Redressal Commission & Anr. demonstrated
that the Consumer Protection Act, 1986, was a byproduct of the legal
profession. Under the direction of S.V.S. Raghavan, a report was produced that
came to the inevitable conclusion that legislative restrictions must be reduced
because they limit the opportunities for law firms to grow and compete globally
and represent India's expertise, which limits consumer freedom and choice.[21] In view of this case, the Supreme Court defined legal
services as falling under the Industrial Disputes Act, 1947, definition of an
industry.
Advantages
of permitting Legal Advertising
The following are some benefits of
allowing legal advertising:
1. More chances for novice attorneys
and independent councils
If advertising were permitted, new
attorneys may promote their services and assert equal access to the legal
market.
2. Rights to knowledge and awareness
The restriction on advertising
prevents potential clients from having access to the best attorneys. In order
to help the people make decisions, advertising is essential.
3. Recognition
Indian lawyers are less exposed to
the global market than foreign legal professionals, which disadvantages them
both domestically and globally. In this era of globalisation, advertising would
enable Indian attorneys and law firms to draw potential overseas clients.
4. Rural communities' limited access
to the internet
India is not a very technologically
developed nation, and a large portion of the rural population lacks access to
essential internet services. As a result, Rule 36, which permits attorneys to
show pertinent information, is insufficient because the public cannot access
other types of advertising.
Disadvantages
of permitting Legal Advertising
1. Misuse
Legal Advertising will be open to
terrible abuse by large law firms and wealthy attorneys if it is not adequately
regulated by the appropriate authorities.
2. Priorities changing
The BCI and the Indian Courts are
reluctant to permit legal advertising because it would cause lawyers to become
unhealthy competitors rather than focus on providing better services.[22]
Conclusion
The legal profession is
unquestionably a very respectable one, thus it cannot in the slightest degree
be considered as an exchange or commerce in a society like India where values
and ethics are prioritised. However, according to the law, any restriction
imposed due to a legitimate concern for the public must be reasonable, that is,
not arbitrary or unreasonable in nature, or what is necessary due to a
legitimate concern for people generally. However, an all-out boycott is not an
answer and is therefore excessive in nature.
As the amount and variety of
advertising continue to grow every year, the advantages and disadvantages of
lawful advertising are frequently discussed. On the plus side, lawyer
advertising informs the public about current legal concerns and lets them know
that there are attorneys available to assist them. Additionally, lawyer
advertising meets the practical purpose of enlightening people about the circumstances
in which it may be necessary to seek legal advice. On the down side, legitimate
advertising can be manipulated to become less illuminating and more smooth.
That kind of promotion has been the target of laws and regulations. The ban on
legal advertisements in India has so far not shown to be healthy for the Indian
economy and also for Indian consumers. There is a need for the pattern to
change given the period we are in. As a result, there is a desire and need to
end this boycott as well as to develop policies and a plan to monitor and
manage genuine advertising. A panel might be set up to ensure consistency, but
limiting authorised advertising would impede India's progress and growth. Legal
advertising has both positive and negative sides, but in today's globalised
society, it is necessary to promote lawyers in order to provide better services
to Indian citizens and facilitate the quick resolution of issues there. If
there is advertising for lawyers, everyone can easily find a lawyer, which will
aid in the expansion of the legal industry in India.
Bibliography
Articles:
1.
Kartik
Gupta, Right to Advertisement of Legal Professionals in India, (Nov 11, 2022,
12:00 PM), https://www.legalserviceindia.com/legal/article-3261-right-to-advertisement-of-legal-professionals-in-india.html.
2.
Sakshi
Saraogi, India: Reimagining The Lawyer's Right To Advertise In A COVID-19
World: The New Normal, (Nov 12, 2022, 12:30 PM), https://www.mondaq.com/india/advertising-marketing-branding/969156/reimagining-the-lawyer39s-right-to-advertise-in-a-covid-19-world-the-new-normal.
3.
Vanshika
Agarwal , The Ban on Advertising as a Canon of Ethics for Lawyers, 4 (4) IJLMH
182 - 186 (2021).
4.
Isha
Kalwant Singh, Advertising by Legal Professionals, BHARATI LAW REVIEW, Oct –
Dec, 2016 at 277, 278.
5.
Maya
Goldstein Bolocan, Professional Legal Ethics: A Comparative Perspective, CEELI
Concept Paper Series 18 (2002).
6.
LawTeacher.
Advertising Done by the Attorneys for the Services They Provide, (Nov. 11, 2022
01:15 PM) https://www.lawteacher.net/free-law-essays/constitutional-law/advertising-done-by-the-attorneys-for-the-services-they-provide-constitutional-law-essay.php?vref=1.
7.
Lalit
Bhasin, Law firms find loopholes to promote their services, (Nov 11, 2:00 PM) https://www.livemint.com/Companies/vqsXsEeGYuqPli9I8TPL0O/Law-firms-find-loopholes-to-promote-their-services.html.
8.
Aadhitya
Logeshen R., Advertising by advocates in India: The right to advertise professional
ethics. 6 INTERNATIONAL JOURNAL OF LAW, 01-03 (2020).
Cases:
1.
Tata
Yellow Pages v. MTNL, 1995 AIR 2438, 1995 SCC (5) 139.
2.
Dharamvir
Singh v. Vinod Majajan, AIR 1985 P H 169.
3.
Bangalore
Water Supply v. A Rajappa, 1978 AIR 548.
4.
K.
Vishnu v. National Consumer Dispute Redressal Commission, 2000 (5) ALD 367.
5.
CD
Sekkizhar v. Secretary Bar Council, AIR 1967 Mad. 35.
6.
R.
N. Sharma, Advocate v. State of Haryana, 2003(3) RCR (Criminal) 166 (P&H).
7.
Government
Pleader v. S. A. Pleader, AIR 1929 Bombay 335.
8.
Re:
(Thirteen) Advocates v. Unknown, AIR 1934 All 1067.
9.
S.
K. Naicker v. Authorized Officer, (1967) 80 Mad. LW 153.
10. Bates v. State of Arizona, 433 U.S.
350.
Statutes:
1.
Advocates
Act, 1961
2.
Bar
Council of India
3.
Constitution
of India
4.
Model
Rules of Professional Conduct, 1969
5.
Rule
7.3, Model Rules of Professional Conduct, 1983
[1] Kartik Gupta, Right to Advertisement
of Legal Professionals in India, (Nov 11, 2022, 12:00 PM), https://www.legalserviceindia.com/legal/article-3261-right-to-advertisement-of-legal-professionals-in-india.html.
[2] 36. 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 organization or with any particular
cause or matter or that he specializes in any particular type of worker or that
he has been a Judge or an Advocate General.
[3] Sakshi Saraogi, India: Reimagining The
Lawyer's Right To Advertise In A COVID-19 World: The New Normal, (Nov 12,
2022, 12:30 PM), https://www.mondaq.com/india/advertising-marketing-branding/969156/reimagining-the-lawyer39s-right-to-advertise-in-a-covid-19-world-the-new-normal
[4] Tata Yellow Pages v. MTNL, 1995
AIR 2438, 1995 SCC (5) 139
[5] Dharamvir Singh v. Vinod Majajan,
AIR 1985 P H 169
[6] Bangalore Water Supply v. A
Rajappa, 1978 AIR 548
[7] K. Vishnu v. National Consumer
Dispute Redressal Commission, 2000 (5) ALD 367
[8] Vanshika Agarwal , The
Ban on Advertising as a Canon of Ethics for Lawyers, 4 (4) IJLMH 182 - 186
(2021).
[9] CD Sekkizhar v. Secretary Bar
Council, AIR 1967 Mad. 35.
[10] R. N. Sharma, Advocate v. State
of Haryana, 2003(3) RCR (Criminal) 166 (P&H).
[11] Government Pleader v. S. A.
Pleader, AIR 1929 Bombay 335.
[12] Re: (Thirteen) Advocates v.
Unknown, AIR 1934 All 1067.
[13] S. K. Naicker v. Authorized
Officer, (1967) 80 Mad. LW 153.
[14] Isha Kalwant Singh, Advertising
by Legal Professionals, BHARATI LAW REVIEW, Oct – Dec, 2016 at 277, 278.
CEELI
Concept Paper Series 18 (2002).
[16] LawTeacher. Advertising Done
by the Attorneys for the Services They Provide, (Nov. 11, 2022 01:15 PM)
https://www.lawteacher.net/free-law-essays/constitutional-law/advertising-done-by-the-attorneys-for-the-services-they-provide-constitutional-law-essay.php?vref=1.
[17] Model Rules of Professional
Conduct, 1969
[18] Bates v. State of Arizona, 433
U.S. 350.
[19] Rule 7.3, Model Rules of
Professional Conduct, 1983
[20] Lalit Bhasin, Law firms find
loopholes to promote their services, (Nov 11, 2:00 PM) https://www.livemint.com/Companies/vqsXsEeGYuqPli9I8TPL0O/Law-firms-find-loopholes-to-promote-their-services.html
[21] K. Vishnu v. National Consumer
Disputes Redressal Commission & Anr., (2000) ALD (5) 367
[22] Aadhitya Logeshen R., Advertising
by advocates in India: The right to advertise professional ethics. 6 INTERNATIONAL
JOURNAL OF LAW, 01-03 (2020)
Article Information
RIGHT TO ADVERTISEMENT OF INDIAN LEGAL PROFESSIONALS - by Nishtha Wadhawan and J Tanisha
Authors: Nishtha Wadhawan, J Tanisha
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/11/14
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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