Advertising Done by the Attorneys for the Services They Provide

Legal advertising deals with the advertising done by the attorneys for the services they provide through the Court of Law. It means soliciting of the legal services provided by the lawyers to the world. In India, the legal profession is considered as an honorable and noble profession, the advertising of the lawyers is cynical and hence not openly accepted. According to the Bar Council of India (BCI), there is a total prohibition on the advertising or publicity by the attorneys. This archaic approach of the BCI has recently undergone a change with the amendment in the Rule 36 of the Bar Council of India Rules [1] by virtue of which the advertisement of the lawyers through websites or internet has been held permissible. Affirmatively, legal advertising provides the general public information about various available and accessible lawyers and in addition, makes them sensitive of the current legal issues. On the contrary, legal advertising can also be maneuvered into something which shall render the pristine profession into a profit-making institution. The latter form of advertisement has always been ridiculed by Legislature and the Courts.

BAR COUNCIL OF INDIA RULES:

The All India Bar Association was established in the 1953 upon whose recommendations the Indian Legislature formulated the Advocates Act of 1961. The Bar Council of India has framed Rule 36 of the Bar Council of India Rules under Section IV (Duty to Colleagues) of Chapter II (Standards of Professional Conduct and Etiquette) of Part IV (Rules Governing Advocates). Rule 36 reads as under:

“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 work or that he has been a Judge or an Advocate General.”

With the advent of globalization and liberalization and the new economic order, there has been a debate in the legal sector about the archaic and the stringent rules of the Bar Council of India regarding advertising by advocates. Advertisement in any form, print, television, media, news, audio etc. everything is banned. The direct means include use of circulars, pamphlets, advertisements, touts, personal communication or interviews. Printing, issuing of circulars or election manifestos by a lawyer with his name, profession and address; and canvassing for votes or sending clerks or agents to the various districts and provinces, necessarily meaning directly approaching advocates practicing in subordinate courts are also prohibited as they amount to indirect means of advertising.

BACKGROUND

The genesis of these laws has been from the Victoria Era of the British Rule. Even after England has itself liberated this idea of advertisement by advocates, India still stands with its public interest and noble attitude towards the up growing legal profession. Reliance was laid on the Canons of the American Bar Association. Canon 27 of Professional Ethics of the American Bar Association states:

“It is unprofessional to solicit professional employment by circulars, advertisements, through touters or by personal communications or interviews not warranted by personal relations.”

The archaic nature of the rules is justified on the principles of public policy and dignity of the profession. It is treated as one of the noblest profession which is in the interest of the general public and must not be commercialized for the benefit of a few. Lawyers are believed to be public servants and are under a moral obligation to work for the upliftment of the society and to achieve social justice. In the words of J. Krishna Iyer, in the case of BCI v. M.V. Dhabolkar [2] , “Law is not a trade, not briefs, not merchandise, and so the heaven of commercial competition should not vulgarize the legal profession.” There is indeed a leading distinction between the legal professional men on one hand and those engaged in trade or business on the other hand, and it is of importance that that distinction should be maintained. [3] In the view of considering the legal profession as sacred and to preserve its tranquility, the Rule 36 stands there.

Judicial Approach

The central function of the legal profession is to promote the administration of justice. If the practice of law is thus a public utility of great implications and a monopoly is statutorily granted by the nation, it obligates the lawyer to observe scrupulously those norms which make him worthy of the confidence of the community in him as a vehicle of justice-social justice. The canons 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 betterment of legal business. [4]

The principle of these decisions is firmly established. Reasoning being that it ought to be because of the standard which the gentlemen of the profession have jealously developed and set up for themselves as befitting the honour, dignity and high position of the nob1e profession. [5]  The second more palatable reason given is that there is a large illiterate population and the ban safeguards them from unscrupulous lawyers. It has to be realized that in today’s world customer choice and awareness is prime where in the market of services the “customer is king”. In the age of consumerism and competition law, consumer’s right to free and fair competition is paramount and cannot be denied by any other consideration. [6] It is the customer whose rights and content is at stake. These arguments are easy to make, but logically and practically, they do not justify the non-justifiable, justifiable only by faith and not by reason in the reality of our changing times.

The Court’s have always taken a rigid & biased view towards this rule. In the Government Pleader [7] case it was held that mere circular post card with the address and the name and description of this pleader, would yet have amounted to an advertisement on his part and therefore to improper conduct. The pleader had stated that he had been authorised to examine the accounts of wakf properties and to issue certificates by the District Court which was held rather aggravating the case than the reverse. It was observed that though auditing itself is not strictly legal work, yet the very fact of his readiness to take up that work, combined with his statement that he is a High Court Pleader, would result in his getting an improper advantage in legal work over his fellow pleaders, who did not descend to such devices.

Further, in another case C.D.Sekkhizhar, the forbidding of announcement and canvassing of candidates for the Bar was upheld, thus holding that an advocate even under the name of election manifestos cannot propagate his name and advertise in that form. [8]

In Re: (Thirteen) Advocates, the writing of articles for publication in newspapers (as distinct from legal journals) under their signature, where the writer describes himself as an advocate practicing in the Courts, was held as a cheap way of advertisement. It was criticized that advocates in such articles while pretending to discuss some controversial question relating to the legal profession, the Courts or the Bar Council, really intend to bring themselves to the notice of the people in the hope of attracting work [9] . It is submitted that such kind of constricted attitude towards the lawyers would be an infringement of their right to Freedom of Speech and Expression as well. They must be given all right to critique or appreciate or discuss about anything.

The case is the same with regard to the law firms. They are devoid from soliciting, advertising or enrolling their names on any online legal directory as well. In J.N. Gupta V. D.C.Singhania & J.K. Gupta [10] the respondent advocates had issued two advertisements in a newspaper for the first time indicating their change of address due to fire in the building. Thereafter the Respondent made a publication in the International Bar Directory giving the names and addresses of their officers under the heading “Singhania & Company” “Firms major cases”, and “Representative clients”. The Court did not find it inconsistent with law to make such imminent public notification of the change of office but the enrollment of the firm in the International Bar Directory not just with the name and address of the firm, but also the important cases dealt and various eminent clients was considered to be with the sole purpose of publicity and soliciting briefs, thus holding it to be professional misconduct. This harsh is the nature of the law of advertising in India.

CONSTITUTIONAL VALIDITY OF RULE 36

The object of an advertisement is to seek to promote or bring to the notice of the public to be used by it. Though a form of speech but its true character is reflected by the object for the promotion of which it is employed. [11] However, the advocates are devoid of exercising this very fundamental right of speech and expression itself as it is against the rules and etiquettes of professional ethics. Rule 36 cannot be challenged on this ground as the Supreme Court has ruled in the case of Hamdard Dawakhana that where the advertisements are not in the interest of the general public cannot be speech within the meaning of freedom of speech and would not fall within Article 19(1)(a). It was held that when an advertisement takes the form of a commercial advertisement which has an element of trade or commerce it no longer falls within the concept of freedom of speech for the object is making money and commercial purposes. [12] Thus in the light of this judgment, the advertisement by advocates would amount to being for commercial purposes, thus undermining the noble profession and hence the Rule 36 is protected by restrictions under Art.19 (2).

The constitutional validity can be challenged against A. 19(1)(g) i.e. freedom to carry on Trade, Profession or Business. Article 19 (1) (g) of the Constitution of India confers every citizen with the right to choose his own employment or to take up any trade or calling. This right is permeated with an implied right of availing all the means and resources, including advertising, so as to effectively carry out the trade or occupation provided it doesn’t go against public interest. Any restriction on this right would be unreasonable unless it is done in public interest. Advertisements can go against public interest only when it is immoral or obscene or presents something which is illegal and goes against public morality. Any blanket bar on this right would be unreasonable when there is an option of constituting a specialized government body that would examine the content of the advertisement. [13] This absolute ban; not permitting advertisement of any kind whatsoever, thus is submitted to be unreasonable with regard to the above argument.

Moreover, there has been no ruling which has held Rule 36 unconstitutional, it is established that this Rule procures protection under Art. 19(2). Here there is a slight anomaly concerned to the presumption that Rule 36 is protected under Art 19(2) as the prohibition in fact functions not as in the interest of public order or public policy. [14] The rule if is guarded under reasonable restriction in the eyes of public policy and tranquility, the question submitted is, “Is any public interest being served by not letting the litigants make the right and informed choice of an appropriate lawyer for their case? Isn’t here the public interest being violated?” The litigants being consumers of the services of the legal profession have a right to informed consent and thus they must be fully acquainted with the lawyer’s practice areas, qualifications and most important experience. Without these he cannot make a right decision and thus an informed choice.

The constitutional validity of this rule was recently challenged in the Supreme Court through a writ petition by V. B. Joshi and the Court has asked the Bar Council of India to expand the scope of online legal advertising by allowing lawyers to disclose details of their experience and areas of specialization, in addition to the list of basic information currently permitted. Bringing an amendment to the said rule, the BCI resolved that advocates could furnish the information on their chosen website. The amendment allows advocates to mention in their chosen websites their names, telephone numbers, e-mail IDs and professional and educational qualifications. Justice S H Kapadia, who was part of the bench perusing the amended notification, suggested that advocates may also state their areas of specialization and years of experience.

RULE 36: AMENDMENT

After hearing the writ petition filed by V B Joshi in the Supreme Court challenging Rule 36, Section IV of the BCI rules, the Court in July 2008 has decided to let advocates advertise on the internet. BCI resolved that advocates could furnish the information on their chosen website. [15] The amendment allows advocates to mention in their chosen websites their names, telephone numbers, e-mail IDs and professional and educational qualifications. Justice S H Kapadia, who was part of the bench perusing the amended notification, suggested that advocates may also state their areas of specialization and years of experience. The Schedule permits the advocates to display their names, address, email – id, telephone numbers, enrollment number and date, professional and academic qualifications and areas of specialization.

Hence, even the internet advertising is limited in nature which shall be of no advantage to the litigants with concern to their informed choice as the important cases dealt by them or their clients & experiences shall not be uploaded. Mere statement of name, qualifications, address would not suffice for knowing the credentials, the credibility and the ability of the lawyer. Superior curriculum vitae of an advocate need not necessarily assure for his acumen and competence in handling various suits. The ground reality may be far different from what is projected virtually.

LEGAL PROFESSION: THE CHANGING FACE

It was in the case of Bangalore Water Supply and Sewerage Board v. A. Rajappa [16] , it was held that legal profession is covered under the definition of the term Industry under the Industrial Disputes Act, 1947. Further, in K. Vishnu v. National Consumer Disputes Redressal Commission & Anr, the Court opined that the very nature of legal services has shifted since globalization. It is a settled position of law that the legal profession is a service for the purpose of the consumer protection act. The Professional Service Sector of the GATS, to which India is a party, includes the Legal Services. Thus it is clear that the legal profession is getting a characteristic of service and must not be excluded from the purview of trade. The Court rightly observed in the case of Tata Press Ltd. v. Mahanagar Telephones Ltd [17] the importance of commercial speech and the right to advertise – not only to the advertiser but also the consumer. The Court observed: “Advertising is considered to be the cornerstone of our economic system.” Thus, when the legal profession cannot be devoid of the service or business sector then why should it be differentiated from other trades with regard to advertisement? If the law firms are not let off from paying the service tax, then why should they be restricted from advertising?

The Report of the High Level Committee on Competition Policy and Law under the Chairmanship of Shri S.V.S. Raghavan has assertively summed up the regulatory system in professional services as follows: “… the legislative restrictions in terms of law and self-regulation have the combined effect of denying opportunities and growth of professional firms, restricting their desire and ability to compete globally, preventing the country from obtaining advantage of India’s considerable expertise and precluding consumers from opportunity of free and informed choice.”

In light of the ongoing wave of globalization and liberalization; the incontrovertible fact remains, that the need of liberalizing the Indian legal sector is unarguable and beyond doubt. It would be beneficiary to all beginners, internship program, litigants, etc., thus giving it a new boost with regard to competition in the legal field. It is submitted that the legal regulations sought to be imposed by the Act and the Rules on expanding nature of legal services sector has had an adverse effect on healthy competition in India and in turn the factors provided under the Competition Act, 2002.

In the case of Sengkodi,, [18] the Court acknowledged the fact that in practical life there is an everyday breach of the rules of the BCI. It was noticed that when Rule 36 mandates that the sign-board or nameplate or stationery of the Advocate should not indicate that he is or has been associated with any person or organization or with any particular cause or matter etc., some members of the noble profession print their photographs in the huge hoardings of the political leaders, virtually at the feet of such political leaders, thus indicating that they are associated with such political leaders, further more amounting to publicity, which is prohibited under Rule 36. The Court suggested BCI to frame stricter rules in this regard. I would like to submit that the need of the hour is the need of recognition of the advertising rights of the advocates. The Bar Council of India and the State Bar Councils hold very large funds, but no positive steps have been taken in organizing the legal profession and safeguarding the interests of lawyers in general, particularly the junior members of the bar. It is with a deep sense of anguish that one finds the legal profession in a state of total dismay and for the majority it is a continuous struggle for existence. The hardest hit are the junior members. [19] It is for the initial kick start to the new lawyers who have the potential but do not get good opportunities to prove it. Advertisements help them reach the people who can at lower costs approach them, thus solving the purpose for both of them.

POSITION IN U.K.

In England, as a consequence of threat of competition by licensed conveyors, the restrictions on advertising have in part been relaxed. From a rigid prospective, where individual advertising was considered conflicting with the professional character of solicitors, the law society [20] has now evolved with a completely new advertising regime. The law governing advertisements is contained in the Solicitors Publicity Code of 1990. The benefits of permitting the advocates to advertise as a result of the liberalized rules were emphasized and discussed in the Monopolies and Mergers Commission in 1970 and the review given by the Office of Fair Trading in 1986 [21] . The Courts have now upheld only one restraint in the profession – a requisite that no advertisement should impair the solicitors’ independence and integrity. No advertisement shall bring disrepute and disgrace to the legal profession. Ultimately the ban has been lifted and the restrictions lowered and thus making legal marketing and legal advertising a reality in U.K.

POSITION IN U.S.

In U.S. the position was equally stringent as in India until 1977. There was a complete ban on advertising for legal professionals. After the case of Bates v. State Bar of Arizona [22] the Supreme Court has accepted and recognized the right of the advocates to advertise. It was held that such a restraint would be in violation of the First Constitutional Amendment. The Court acknowledged the fact that permitting such legal advertising by attorneys would not be prejudice to the legal profession or the administration of justice. Such advertising shall actually be of help to the consumers with relevant information as to the accessibility of legal services. [23] The states in U.S. are now allowed to regulate and monitor the advertising by advocates. [24]

CONCLUSION

The legal profession is no doubt a very respectable profession and hence in a culture-oriented country like India where values and morals are given precedence, the legal profession can in no way be held a trade or business. But according to the law any restriction imposed in the interest of the public must be reasonable i.e. not arbitrary or excessive in nature, or beyond what is required in the interest of the public, but a total ban is not a solution and hence excessive in nature. It was a rule formed when the number of law firms was not so huge and globalization or liberalization did not play a major part. Full- blown advertisement is not recommended, but with a proper code of conduct and etiquette, a regulation can be made on this. It is submitted that advertisement in print form, in online and legal directories, on websites with their detailed information must be permitted. Nothing shall be permitted which shall bring disrepute to the profession and must retain the integrity, the respect and the independence of the advocates. Legal advertising is not for publicity, but in the interest of the public; for making the people know & let them make an informed choice.