Right to Advertisement of Legal Professionals in India
Everyone has the right to freedom of opinion and expression; this right
includes freedom to hold opinions without interference and to seek, receive and
impart information and ideas through any media and regardless of frontiers.- United Nations, Universal Declaration of Human Rights
Introduction
Right to Advertisement is one of the intrinsic features of conducting any business, profession, or any other organization in today s world. It provides a platform for the person to communicate any form of information to the public at large, given that such advertisement formulates on the rules and regulations laid down on such behalf. The communication can be through newspapers, magazines, emails, letters, events, etc.
Advertisements or Commercial Speeches has been incorporated under Article 19 (1) (a) of the Constitution of India. It has been accepted as a part of Freedom of Speech and Expression , The Supreme Court has considered in the case of Tata Press[1] that the public at large has a right to receive the commercial information and such protection of Article 19 (1) (a) of the Constitution of India is available to both speaker and recipient of the speech. The commercial nature of such expressions were held to be immaterial while extending the protection under the said article of the Constitution.
And like any other fundamental right, freedom of speech and the expression is also not an absolute right. Under Article 19 (2) of the Constitution of India, the state may impose reasonable restriction on the exercise of such right in the interest of the public on the following ground:
But this right of the advertisement has been completely done away with, in the case of legal professionals. There is a complete prohibition on a legal professional to advertise their legal services through the court of law. This includes any type of advertisement w.r.t. legitimate administrations provided, by posing as a legal counselor under the legal framework.
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.
This rule clearly states that the Legal Profession is different from any other profession, unlike others soliciting work under the legal profession, has been completely banned by such rule. The reasoning was that the legal Profession being the noblest profession will lose its light if the advertisement is permitted within the legal market. Justice Krishna Iyer in the case of Bar Council of Maharashtra v. M.V. Dhabolkar[2] said that:
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.
However, there lies a cosmic debate in the legal sector and existing criticism against such archaic BCI rules which prohibit all types and forms of advertisement. Pitting the ideas of Reasonability, Constitutionality, Transparency, free flow of ideas, globalization, and liberalization against the above-said rule.
Law is a traditional profession having public service goals at the center of it all. From the start of this profession considered as an upholder and protector of law. The service under such a sector was provided with the foremost aim to serve society and then to earn a livelihood.
In the case of Indian Council of Legal Aid and Advice v. Bar Council of India[3], the Supreme Court enunciated that profession of law being a pious and honorable 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.
It is imperative to understand that law as a profession is nothing without its ideals and ethics. And therefore in every law school curriculum, an important subject is taught Professional Ethics to make sure that the young law minds met with the demands of such a profession by upholding the ideals and ethics.
Also in the case of Bar Council of Maharashtra v. M.V. Dhabolkar[4], Justice Krishna Iyer has further 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.
But the question that remained unanswered is how soliciting the service, being incidental to the profession will affect the primary conduct of law professionals? Is it not possible to pave a way where both the ideals go hand in hand, i.e. allowing the advertisement within the legal market without creating any challenges against the noble profession.
Placing such strict standards and regulations on the lawyers only go against the idea of the nobility of the profession. Such a rule-based upon the Victorian notion, although where the British have evolved to a modern idea of the legal profession, we stuck ourselves to the traditional and outdated idea. Word of Mouth is not enough in today s world to embrace the sanctity of the profession, legal industry must be open for changes to thrive.
Rule 36 of BCI also stands on a very thin line constitutionally, as it is not covered properly on any of the exceptions laid down in Article 19 (2) of the Constitution of India. The same rule was tested in the case of V.B. Joshi v. Union of India 2008, where the scope of online advertisement was given some relaxation to help the lawyers to reveal certain information, such changes will not come into existence if this rule 36 comes entirely works within the periphery of the Article 19 (2) of the Constitution of India.
And strict actions could be taken against the lawyers or law firms who still advertise through circular letters or election manifestos or organizing moot court competitions or offering certificate courses or written articles or using visiting cards etc. All of this adds to the vulnerability and flawed reasoning behind this rule. Now, how can a rule safeguard the nobility of the profession when it s not even constitutionally sound?
Legal Profession a commercial activity
The amendment in rule 36 is a clear effect of the developing change in the system, where even the legislators accepted the adaptation by introducing the exception clause in the above-mentioned rule. The amendment to Rule 36, Section IV of the BCI rules allowed advocates the opportunity to advertise online. It permits the advocates to upload their names, addresses, phone numbers, e-mail IDs, enrolment details, qualifications, and area of practice on the selected website.[5]
Earlier both direct and indirect types of advertisements were frowned upon by the rule, several case laws existed to disallow the lawyers from indulging in such activities. In the case of Government Pleader v. S.A pleader[6], it was decided that sending a postcard displaying the address, name, and description of an advocate would amount to the advertisement. In another case, it was held that under the election manifestos, lawyers are prohibited to propagate his name and advertise in the form of announcements and canvassing[7].
The traditional idea of the legal profession and the reasoning behind such precedents getting faded day by day, the legal profession is being given the same treatment as any other profession or service. The landmark case of Bangalore Water Supply v. A. Rajappa[8] which provides clarity on the term Industry included legal profession in it. Further, in the case of K Vishnu v. National Consumer Dispute Redressal Commission[9], it was observed that advocate being regarded as an officer of the court, but cannot be set free from their basic role of services to their clients and therefore the legal administrations can be subject to the Consumer Protection Act, 1986.
Even in the Report of the High-Level Committee on Competition Policy and Law, under the Chairmanship of S.V.S. Raghavan stated that:
the legislative restrictions in terms of law and self-regulation have the combined effect of denying opportunities and growth of professional law firms, restricting their desire and ability to compete globally, preventing the country from obtaining the advantage of India s considerable expertise and precluding consumers of free and informed choice.[10]
Lloyd Pearson, London-based Legal Directories Consultant also said that because of such advertising restrictions, the world knows very little about most Indian firms or lawyers, despite having 1.2 million of them.[11]
Thus, it may be said that law service is becoming subject of trade-related laws, therefore consumers, supplier, demand, and supply must be given adequate space to conduct activities. Attaching such a negative image with the term trade is also unnecessary, trade is not just about profits but also consumer satisfaction, informed choices, free flow of information, etc.
It is time to come with terms that the Legal profession is both noble as well as contain commercial characteristics, and suppressing the later part in the limelight of the former is simply mistaken and wrong. The courts, as well as Bar Council, must realize that such restrictions, in reality, are imposed on the small-time lawyers or law firms, cause the lion's in the legal market, first of all, need very little advertisement and secondly, even if they do, they meet the need through organizing competitions or events, publishing information on websites, using foreign-based publications, etc. These resourceful firms had found other ways to advertise themselves to attract prospective clients and referral partners while the complete burden of such restrictions is bearing by other lawyers with a lack of resources under the context of the nobility of the legal profession.
Conclusion
Lawyers had two sets of duties, one owed to the court and the other owed to the public, these duties also encompasses some rights within it. And as long as these rights do not interfere with either set of duties, the lawyers are fully competent to exercise such rights. A reasonable scope of advertisement can coexist which does not affect the honor of the Profession.
In the above-discussed case of V.B. Joshi v. Union of India, several other important issues such as publishing brochures for distribution at seminars and having insertions in online law dictionaries, were not discussed by the court and the amendment only limited itself to online advertisements. The amendment vividly did not take into account the illiteracy rate of India, or they choose to ignore it. Not all people in India have access to the internet or even if they do, they lack skills to utilize it at the required level.
Countries like the U.K. and the U.S. have lifted the limitations imposed on the advocates concerning the legal advertisement by enforcing regulations to ensure that there is a particular standard deciding the size and style of the advertisement. Although, it is a risky operation where the negative impact may overshadow the positive aspects of advertisements and also does not offer any guarantee that just because it is successful in other countries will be particularly successful in India. But since when the govt. has stopped itself from enforcing new laws which have more severe outcomes, because of the factors such as risk and chances of not been successful.
Despite the above argument, any reasonable person can foresee that the negative factors attached to the idea can easily be curtailed by effectively following a set of rules. A panel could be shaped to administrate over concerning matters, for example:
Therefore, the BCI must come with the modification to put a close check over the advertisement in the legal sector to safeguard the favored traditional notion and attract penal provisions to punish the violators.
It is also important to note that some kind of advertisement still exists in the current legal market especially by huge law firms or big lawyers and there is no regulations or rules to regulate them, the position of the profession will still be far better off than sticking to the age-old rule of BCI without even considering the advantages of the regulated legal advertisements including opportunities to the young lawyers, free flow of information, increased awareness among the public about the legal market, Global recognition, facilitating better services to the domestic as well as international clients, etc.
In the age of globalization and commercialization, to justify the BCI rules, the reasoning of law is a noble Profession is simply not enough. This rule is affecting the lawyers as well as the public by impounding their rights incorporated under the constitution. This is the duty of legislators and judicial courts to harmoniously construct rules to allow advocates to advertise while preserving the respect of the legal profession in India.
End-Notes:
Introduction
Right to Advertisement is one of the intrinsic features of conducting any business, profession, or any other organization in today s world. It provides a platform for the person to communicate any form of information to the public at large, given that such advertisement formulates on the rules and regulations laid down on such behalf. The communication can be through newspapers, magazines, emails, letters, events, etc.
Advertisements or Commercial Speeches has been incorporated under Article 19 (1) (a) of the Constitution of India. It has been accepted as a part of Freedom of Speech and Expression , The Supreme Court has considered in the case of Tata Press[1] that the public at large has a right to receive the commercial information and such protection of Article 19 (1) (a) of the Constitution of India is available to both speaker and recipient of the speech. The commercial nature of such expressions were held to be immaterial while extending the protection under the said article of the Constitution.
And like any other fundamental right, freedom of speech and the expression is also not an absolute right. Under Article 19 (2) of the Constitution of India, the state may impose reasonable restriction on the exercise of such right in the interest of the public on the following ground:
- Sovereignty and Integrity of India
- Security of State
- Friendly relations with foreign states
- Public Order
- Decency or Morality
- Contempt of Court
- Defamation
- Incitement to an offense
But this right of the advertisement has been completely done away with, in the case of legal professionals. There is a complete prohibition on a legal professional to advertise their legal services through the court of law. This includes any type of advertisement w.r.t. legitimate administrations provided, by posing as a legal counselor under the legal framework.
The root of prohibition can be directly traced back to Rule 36 of the Bar Council of India as under:
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.
This rule clearly states that the Legal Profession is different from any other profession, unlike others soliciting work under the legal profession, has been completely banned by such rule. The reasoning was that the legal Profession being the noblest profession will lose its light if the advertisement is permitted within the legal market. Justice Krishna Iyer in the case of Bar Council of Maharashtra v. M.V. Dhabolkar[2] said that:
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.
However, there lies a cosmic debate in the legal sector and existing criticism against such archaic BCI rules which prohibit all types and forms of advertisement. Pitting the ideas of Reasonability, Constitutionality, Transparency, free flow of ideas, globalization, and liberalization against the above-said rule.
Law as a Noble Profession
Law is a traditional profession having public service goals at the center of it all. From the start of this profession considered as an upholder and protector of law. The service under such a sector was provided with the foremost aim to serve society and then to earn a livelihood.
In the case of Indian Council of Legal Aid and Advice v. Bar Council of India[3], the Supreme Court enunciated that profession of law being a pious and honorable 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.
It is imperative to understand that law as a profession is nothing without its ideals and ethics. And therefore in every law school curriculum, an important subject is taught Professional Ethics to make sure that the young law minds met with the demands of such a profession by upholding the ideals and ethics.
Also in the case of Bar Council of Maharashtra v. M.V. Dhabolkar[4], Justice Krishna Iyer has further 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.
But the question that remained unanswered is how soliciting the service, being incidental to the profession will affect the primary conduct of law professionals? Is it not possible to pave a way where both the ideals go hand in hand, i.e. allowing the advertisement within the legal market without creating any challenges against the noble profession.
Placing such strict standards and regulations on the lawyers only go against the idea of the nobility of the profession. Such a rule-based upon the Victorian notion, although where the British have evolved to a modern idea of the legal profession, we stuck ourselves to the traditional and outdated idea. Word of Mouth is not enough in today s world to embrace the sanctity of the profession, legal industry must be open for changes to thrive.
Rule 36 of BCI also stands on a very thin line constitutionally, as it is not covered properly on any of the exceptions laid down in Article 19 (2) of the Constitution of India. The same rule was tested in the case of V.B. Joshi v. Union of India 2008, where the scope of online advertisement was given some relaxation to help the lawyers to reveal certain information, such changes will not come into existence if this rule 36 comes entirely works within the periphery of the Article 19 (2) of the Constitution of India.
And strict actions could be taken against the lawyers or law firms who still advertise through circular letters or election manifestos or organizing moot court competitions or offering certificate courses or written articles or using visiting cards etc. All of this adds to the vulnerability and flawed reasoning behind this rule. Now, how can a rule safeguard the nobility of the profession when it s not even constitutionally sound?
Legal Profession a commercial activity
The amendment in rule 36 is a clear effect of the developing change in the system, where even the legislators accepted the adaptation by introducing the exception clause in the above-mentioned rule. The amendment to Rule 36, Section IV of the BCI rules allowed advocates the opportunity to advertise online. It permits the advocates to upload their names, addresses, phone numbers, e-mail IDs, enrolment details, qualifications, and area of practice on the selected website.[5]
Earlier both direct and indirect types of advertisements were frowned upon by the rule, several case laws existed to disallow the lawyers from indulging in such activities. In the case of Government Pleader v. S.A pleader[6], it was decided that sending a postcard displaying the address, name, and description of an advocate would amount to the advertisement. In another case, it was held that under the election manifestos, lawyers are prohibited to propagate his name and advertise in the form of announcements and canvassing[7].
The traditional idea of the legal profession and the reasoning behind such precedents getting faded day by day, the legal profession is being given the same treatment as any other profession or service. The landmark case of Bangalore Water Supply v. A. Rajappa[8] which provides clarity on the term Industry included legal profession in it. Further, in the case of K Vishnu v. National Consumer Dispute Redressal Commission[9], it was observed that advocate being regarded as an officer of the court, but cannot be set free from their basic role of services to their clients and therefore the legal administrations can be subject to the Consumer Protection Act, 1986.
Even in the Report of the High-Level Committee on Competition Policy and Law, under the Chairmanship of S.V.S. Raghavan stated that:
the legislative restrictions in terms of law and self-regulation have the combined effect of denying opportunities and growth of professional law firms, restricting their desire and ability to compete globally, preventing the country from obtaining the advantage of India s considerable expertise and precluding consumers of free and informed choice.[10]
Lloyd Pearson, London-based Legal Directories Consultant also said that because of such advertising restrictions, the world knows very little about most Indian firms or lawyers, despite having 1.2 million of them.[11]
Thus, it may be said that law service is becoming subject of trade-related laws, therefore consumers, supplier, demand, and supply must be given adequate space to conduct activities. Attaching such a negative image with the term trade is also unnecessary, trade is not just about profits but also consumer satisfaction, informed choices, free flow of information, etc.
It is time to come with terms that the Legal profession is both noble as well as contain commercial characteristics, and suppressing the later part in the limelight of the former is simply mistaken and wrong. The courts, as well as Bar Council, must realize that such restrictions, in reality, are imposed on the small-time lawyers or law firms, cause the lion's in the legal market, first of all, need very little advertisement and secondly, even if they do, they meet the need through organizing competitions or events, publishing information on websites, using foreign-based publications, etc. These resourceful firms had found other ways to advertise themselves to attract prospective clients and referral partners while the complete burden of such restrictions is bearing by other lawyers with a lack of resources under the context of the nobility of the legal profession.
Conclusion
Lawyers had two sets of duties, one owed to the court and the other owed to the public, these duties also encompasses some rights within it. And as long as these rights do not interfere with either set of duties, the lawyers are fully competent to exercise such rights. A reasonable scope of advertisement can coexist which does not affect the honor of the Profession.
In the above-discussed case of V.B. Joshi v. Union of India, several other important issues such as publishing brochures for distribution at seminars and having insertions in online law dictionaries, were not discussed by the court and the amendment only limited itself to online advertisements. The amendment vividly did not take into account the illiteracy rate of India, or they choose to ignore it. Not all people in India have access to the internet or even if they do, they lack skills to utilize it at the required level.
Countries like the U.K. and the U.S. have lifted the limitations imposed on the advocates concerning the legal advertisement by enforcing regulations to ensure that there is a particular standard deciding the size and style of the advertisement. Although, it is a risky operation where the negative impact may overshadow the positive aspects of advertisements and also does not offer any guarantee that just because it is successful in other countries will be particularly successful in India. But since when the govt. has stopped itself from enforcing new laws which have more severe outcomes, because of the factors such as risk and chances of not been successful.
Despite the above argument, any reasonable person can foresee that the negative factors attached to the idea can easily be curtailed by effectively following a set of rules. A panel could be shaped to administrate over concerning matters, for example:
- The exploitation of the Idea: If not regulated properly, it might likely get exploited by unscrupulous lawyers by furnishing false information, defaming others, making the mockery of the court system, immoral punchlines, etc. to sway gullible consumers.
- Shifting Focus: Lawyers will have to focus on publicizing themselves as well, in addition to legal arguments, skills, and knowledge.
- Expensive Legal Services: Lawyers will obviously incur a cost in advertising, which will make the service of the lawyer more expensive, that will fuel another controversy altogether.
- Bring hatred in the Profession: Lawyers will develop jealousy amongst their colleagues, which will impair the dignity of the profession.
Therefore, the BCI must come with the modification to put a close check over the advertisement in the legal sector to safeguard the favored traditional notion and attract penal provisions to punish the violators.
It is also important to note that some kind of advertisement still exists in the current legal market especially by huge law firms or big lawyers and there is no regulations or rules to regulate them, the position of the profession will still be far better off than sticking to the age-old rule of BCI without even considering the advantages of the regulated legal advertisements including opportunities to the young lawyers, free flow of information, increased awareness among the public about the legal market, Global recognition, facilitating better services to the domestic as well as international clients, etc.
In the age of globalization and commercialization, to justify the BCI rules, the reasoning of law is a noble Profession is simply not enough. This rule is affecting the lawyers as well as the public by impounding their rights incorporated under the constitution. This is the duty of legislators and judicial courts to harmoniously construct rules to allow advocates to advertise while preserving the respect of the legal profession in India.
End-Notes:
- 1995 SCC (5) 139
- Bar Council of Maharashtra v/s. M.V Dhabolkar, (1976) AIR 242
- Indian Council of Legal Aid and Advice v. Bar Council of India [(1995) 1 SCC 732]
- Bar Council of Maharashtra v/s. M.V Dhabolkar, (1976) AIR 242
- http://www.barcouncilofindia.org/wp-content/uploads/2010/05/BCIRulesPartVonwards.pdf
- AIR 1929 Bombay 335
- C.V. Sekkizhar v. Secretary, Bar Council, Madras, AIR 1967 Mad 35
- Bangalore Water-Supply & Sewerage Board, Etc. v/s. R. Rajappa& Others,(1978), SCR (3) 207
- (2000) ALD (5) 367
- 8.2.5, Chapter VII, Competition Policy and Professional Services, Report of High Level Committee on Competition Policy and Law- S.V.S. Raghavan Committee, 2000
- http://docs.manupatra.in/newsline/articles/Upload/C74B86B2-2614-4B56-A50D-8D498A841418.pdf
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