What if Prohibition of Advertisement in the Legal Sector
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By JusCorpus Blogs September 11, 2022
It's unlawful to promote the legal profession in India. Even if a lawyer makes a persuasive argument in court, the newspaper can report it, but the lawyer's name is undesirable. According to London-based legal adviser Lloyd Pearson, India has the largest number of lawyers in the world, but little is known about Indian law firms. Knowing more about the Indian legal market will serve everyone better. Consumers buying cars have access to more data and investigative resources than litigants. Advertising harms the legal profession. Lack of professionalism can cause significant harm as it can affect the reputation and self-esteem of lawyers. Other factors include misleading advertising and improved service quality. The emergence of the legal profession as a noble profession contributes to the negative impression of taboo. The ban was lifted in 2008 when the Indian Bar Association issued an order allowing lawyers and law firms to have websites displaying their contact details, qualifications and areas of expertise. Before that, advertising was completely banned. In India, lawyers are not allowed to act publicly, but most do so through business cards, seminars, celebrations, and circulars with names, addresses, professions, campaigns. Despite proponents' efforts to attract and violate BCI regulations, implementation errors have always eluded them.
The Bar Association of India (BCI) has the power to make rules under the Bar Act to carry out its legal obligations and has done so through the BCI Rules. Under Rule 36 of the BCI Rules, you are in direct or indirect contact with a lawyer by posting, advertising, soliciting, personal communication, interview, providing an inspirational review for a newspaper or taking a photograph of a publication relating to the matter to which you belong or are affected[1]. Nor does the attorney's name, title, or correspondence indicate that he is a president or member of an association or bar association or that he is affiliated with any person or organization, or associated with any cause. Or you've specialised in certain types of work or served as judges or attorneys general.
The Advocate Act 1961 lays down the ethics and professional principles of Indian lawyers. Section 4 of the Act lays the groundwork for authorising central bar associations such as the BCI and various state bar associations to frame rules of conduct. Section 49(1) of this Act makes remarkably detailed provisions for the Bar regarding the "Code of Ethics and Conduct for Advocates" and "Privileges to Practice". Rule 36 of the BCI Rules[2] approved in the Official Gazette of India dated September 6, 1975 provides as follows:
"A lawyer shall not, directly or indirectly, offer or encourage advertising, publicity, solicitation, interpersonal communication, interview, interpersonal endorsement, newspaper review, or photograph to promote any matter in which he is involved or in which he is related. It must be the correct size. A symbol, name, or heading indicates that he is a president, member of the law, or other body, is affiliated with any person or entity, or is an expert on a cause or issue or in a particular field." The Honourable Justice Krishna Iyer pointed out that "law is neither a trade, nor an order, nor a commodity, and the heaven of commercial competition must not render the legal profession vulgar." For years, courts have ruled that "legal services" are consumer services. Lawyers are considered service providers and have a duty to explain improper services to clients.
In 1967,the Madras High Court ruled in C.D.Sekkizhar v Secretary Bar Council[3], that advertising by lawyers was limited to the prevention of jealousy and was not suitable for a noble profession. Also, in Maharashtra State Bar Association v M. V. Dabholkar[4], the Supreme Court ruled that "commercial competition and acquisitions are corrupting the legal profession."
In this regard, the Supreme Court held that the landmark judgement of Tata Yellow Pages v. MTNL[5] held that the right to speak in a case is a fundamental right guaranteed under Article 19(1)(a) of the Indian Constitution. However, the ruling did not invalidate the BCI's one-and-a-half-day rule because the court did not hear the entire tribunal. In 2008, the ban on solicitor advertising was completely lifted and relaxed. This change allows lawyers to display their names, phone numbers, email IDs, and professional and educational qualifications on websites that list legal service providers.
Why ads for lawyers are banned
There are two reasons why lawyers in India are not allowed to advertise their services: first, there are ethical dilemmas in the legal profession; and second, there are legal and judicial grounds for their prohibition.
For Ethical Reasons
A moral reason often invoked to justify banning legal ads is that the practise of law is a noble profession and not a commercial activity. Therefore, these rigorous concepts serve to preserve "professional honour." This concept of legal services is based on an old Victorian legal concept that is no longer used in England.
Legal Reasons
Lawyers and law firms are unable to promote their services due to the combined effect of the Advocates Act, Indian Bar Association regulations, and other professional bodies.[6] Attorneys may not solicit clients or do anything that might influence the defendant's decision to hire a lawyer[7]. The Lawyer's Act empowers the Bar Association of India (BCI) to make rules to carry out its functions under the Act and is based on the BCI regulations[8]. Rule 36 of the BCI Rules[9]: Rule 36 was amended by the Supreme Court decision in V.B. Joshi v. Union of India in 2008[10], According to the Union case, lawyers can provide information on their websites about the programme and whether the information provided is true[11]. A declaration must be made.
Courts have repeatedly applied the BCI rules, which are very strict and leave no room for lawyers and law firms to advertise their services[12]. It is important to note, however, that courts have ruled that consumer assistance forums have jurisdiction to adjudicate legal proceedings for services provided by lawyers[13]. Section 2(u) of the Competition Act 2002 defines the term "service" for the purposes of the Consumer Protection Act 1986. The dichotomy between the positions of the Indian courts is clearly marked. In particular, some influential lawyers and law firms are successfully promoting their legal services. For example, a solicitor's news letter or an election proclamation. Their names, occupations, and addresses are illegal, but they are listed as indirect publicity. Well-funded law firms focus on specific areas of law, present real cases through investigative articles, and sponsor mock trial contests using social media platforms[14].
Situations in various countries
Countries such as the United Kingdom and the United States have loosened restrictions on legal advertising for lawyers by passing laws that guarantee consistency in the amount and type of advertising. It is a risky task where the negative effects of publicity may outweigh the positives, but success in other countries does not guarantee success, especially in India. However, the government has since refrained from introducing stricter laws because of the risks involved and the possibility of default.
America, The United States of America
By 1977, the situation in the United States was similar to that in India. The American Bar Association Code of Ethics states that it is unethical to practise a profession through advertising. This is currently in Bates v. State Bar of Arizona in the 1983[15], Model Code Of Professional Conduct applies to advertisements for US attorneys. Lawyers may solicit services in writing, in writing or by electronic communication (including in the public media) in accordance with the rules, provided the following requirements are met[16]: you must not make false or misleading statements about lawyers or services.
The UK bans advertising for legal services because of an outdated Victorian concept. However, in 1970 and 1986, the Monopolies and Mergers Commission and the Bureau of Fair Trading published reports highlighting the benefits of allowing advertising in legal services. This completely changed the situation in England, and the old Victorian houses were destroyed. The Lawyer's Disclosure Code 1990, regulates the advertising of legal services in the UK and is regularly revised. The Code requires that ads for legal services are not misleading and contain sufficient information to help clients make informed decisions. This voids the consumer's right to information. The code also states that advertisements may contain attorney's fees unless they are accompanied by an explanation that the cost is dangerously low and that the advertisements may incur additional fees[17].
Under the influence of these lawyers, known as legal aristocrats in today's marketing and advertising world, law firms are usurping the right to advertise Indian lawyers. Always remember that advertising not only negatively affects consumer opinion but also has millions of other benefits for society. Many countries around the world have lifted the ban on the traditional rule of not advertising for the legal profession. It is now or never time for lawyers to realise that all parties involved in a lawsuit have a right to a platform where they can find the best lawyers and make the most of them. In today's era of liberalization, privatization, and globalization, lawyers must compete internationally and win international clients, but the shield of Rule 36 stands in the way of these ambitions. This rule is not good for both lawyers and clients, but the Bar Association of India does not believe that there is any serious reason to repeal this rule.
Author(s) Name: Preeti Birla (Rnt Law College, Chittorgarh, Rajasthan)
[1]https://indiankanoon.org/search/?formInput=rule%2036%20of%20bar%20council%20of%20india
[2] Section IV (Duty to Colleagues) of Chapter II (Standards of Professional Conduct and Etiquette) of Part VI (Rules Governing Advocates)
[3] AIR 1967 Mad 35
[4] (1976) 2 SCC 291
[6] M.L. Sarin&HarpreetGiani, Prohibition of Advertisement in the Legal Services Sector, 1(1) India Law Journal, available at: http://www.indialawjournal.org/archives/volume1/issue_1/ legal_articles_sarin.html
[8] Advocates Act, No. 25 of 1961, § 49(1).
[9] Rule 36, Section IV, Chapter II, Part VI, Bar Council of India Rules, 2008.
[10] Writ Petition (Civil) no. 532 of 2000.
[11]Declaration, Rule 36, Section IV, Chapter II, Part VI, Bar Council of India Rules, 2008.
[12] IshaKalwant Singh, Advertising by Legal Professionals, Bharti Law review 277 (Oct-Dec, 2016).
[13] SuyogyaAwasthy, Right to advertising of lawyers, Legally India (2016), available at: http://www.legallyindia.com/views/entry/right-to-advertising-of-lawyers
[14] Somesh Dutta, A case to relax advertising restrictions for legal practitioners, The Hindu (July 9, 2018), https://www.thehindu.com/opinion/op-ed/
[15] https://supreme.justia.com/cases/federal/us/433/350/
[16] Rule 7.2, Model Rules of Profession Conduct, 1983
[17] Rule 8.1, 8.7, 8.9 Solicitors' Publicity Code, 2016.