There are compelling reasons for allowing advertising by legal professionals and it will be a win-win situation for legal professionals and clients, if advertising is regulated…
Rule 36 of the Bar Council of India Rules, prohibits lawyers from advertising their services whether by circulars, advertisements, touts, personal communications and interviews not warranted by personal relations. Any type of direct advertisement is prohibited and amounts to misconduct on the part of an advocate. Indirect ways of advertisement are prohibited too under the Rule 36. Even the signboard or nameplate, displayed by an advocate, should be of reasonable size.
It should not refer to the details of affiliation of the advocate i.e. whether he is or has been a president or member of a Bar Council or of any association; or he has been a Judge or an Advocate General, or that he specialises in a particular kind of work, or that he is or was associated with any person or organisation, or with any particular cause or matter. This rule clearly bans any kind of advertisement by a lawyer.
Recently, the Bar Council of India (BCI) has passed a resolution to amend Rule 36 of the Bar Council of India Rules. This amendment permits advocates, like other professionals, to advertise their services on the internet. Advocates are now permitted to mention their names, email addresses, telephone numbers, professional qualification and area of specialisation on the internet or websites. However, such advertisements are permitted only within the parameters fixed by BCI and therefore, any breach of the guidelines would lead to disciplinary action against the professional.
“The main benefit of advertising is to retain the loyal customer, reduce previous customers and recruit new ones. However, advertising in itself should not have any direct effect on the integrity of the legal profession. It is though true to the reason why there are rules of conduct (ethics) for lawyers is because there is always a risk of exaggerating, specifically with legal services advertising, boasting, deceitful or misleading messages.”
This amendment has given rise to a great debate among scholars regarding the validity of the advertisements. Erudite scholars have two schools of thought about this issue.
Advertising is presumed to be derogatory to high principles of the legal profession. There are a number of judgments of Apex Court as well as many High Courts supporting prohibition of advertisement by legal professionals, holding that commercial competition should not vulgarise the legal profession.
It is argued that permitting to advertise may promote unhealthy competition, as lawyers with money and resources will be in a better position to market their services. As Senior Advocate, Adarsh B. Dial , Delhi High Court states, “In India, legal profession is a noble profession because of the high standards of ethics, which govern the profession. Charging of fee does not mean or amount to ditching the very system they work for. We cannot compare ourselves to developed nations like U.K. or U.S.A., where the concept of legal profession has now been equated virtually with a commercial enterprise.”
Professor Arnaud Raynouard , Senior law professor, Vice-president International affairs, Paris, France opines, “The main benefit of advertising is to retain the loyal customer, reduce previous customers and recruit new ones. However, advertising in itself should not have any direct effect on the integrity of the legal profession. It is though true to the reason why there are rules of conduct (ethics) for lawyers is because there is always a risk of exaggerating, specifically with legal services advertising, boasting, deceitful or misleading messages.”
“Unrestricted freedom to a lawyer to advertise by any means i.e. in print, on television, on bill boards etc. Would certainly lead to unhealthy competition as well as degradation of the profession,” he adds.
“In India, legal profession is a noble profession because of the high standards of ethics, which govern the profession. Charging of fee does not mean or amount to ditching the very system they work for. We cannot compare ourselves to developed nations like UK or USA, where the concept of legal profession has now been equated virtually with a commercial enterprise.”
“For unsophisticated or inexperienced users of legal services, there may be legal rights or options for legal counsel that are entirely unknown. Without attorney advertising, such a person might hire the ‘wrong’ attorney for their particular situation. For instance, Indian lawyers are not allowed to advertise. It adversely affects the interests of clients, who are in search and need of the services of an Indian Lawyer abroad and it is very difficult for an attorney in the US to find an Indian lawyer.”
The performance of a lawyer in the court is enough to get him required publicity. His actions speak louder than the words of an advertisement. If advertisement is permitted, the clients may get lured by the fanciful advertisement of an incompetent lawyer. It is also said that the act of curbing, misleading, false or unprofessional information, furnished by advocates would be cumbersome because it would be difficult for BCI to keep a track of each advertisement.
Arguments in favour of allowing advertisement are also strong and present a good case, therefore, cannot be left unnoticed. Fundamental right to freedom of trade, profession or business is quoted to make advertising permissible. However, Senior Advocate Adarsh B. Dial further explains, “In view of the existing judgments of the Supreme Court, it has been held that commercial advertisement does not fall within the concept of freedom of speech within Article 19 (1) (a). So far as Article 19 (1) (g) is concerned, the right can be controlled by reasonable restrictions on the exercise of the right.”
Further, advertisement will ensure better services, rationalisation of prices, beneficial to clients and beneficial to small and new firms, as they can compete effectively with the bigger firms. As advertising involves a considerable amount to be invested, advocates may restrict their area of practice to one particular field. Senior Advocate Lalit Bhasin, Managing Partner, Bhasin & Co. asserts, “There is nothing unethical about permitting lawyers to have websites or such things to advertise. What is unethical is advertising oneself in electronic media or print media soliciting work and describing oneself as specialist in divorce matters or accident cases (ambulance chasers etc.) or the like.
As regards issue of lawyers to advertise, would they be covered under the ambit of the Consumer Protection Act, 1986, Amir Singh Pasrich , Managing Partner, International Law Affiliates, Delhi observes, “Legal profession is not a ‘sector’ of industry. To bring it under the ambit of the Consumer Protection Act would lead to legal profession being coupled with liability, as it has been in the west. Thus, it will introduce an extra slab of expense in the form of heavy insurance costs, demands from lawyers for upfront (probably only cash) payments of all fees, reference to clients for each decision taken. In corporate affairs, the possibility of suing a law firm would introduce complicated risks of passing the buck through multiple indemnities, which require parallel law suits to be continued for each cause-of-action. This will take possibly over a dozen years to resolve a dispute!”
"There is nothing unethical about permitting lawyers to have websites or such things to advertise. What is unethical is advertising oneself in electronic media or print media soliciting work and describing oneself as specialist in divorce matters or accident cases (ambulance chasers etc.) or the like."
Ban on lawyers’ advertising their services in India is an excellent example of our natural predilection towards blind siding the irrefutable reality, facing us in a foggy haze of sanctimonious sermonising.
Lawyers already advertise and with considerable enthusiasm, as a polity, we neither prosecute nor legalise. Lots of lawyers are sending out email circulars and newsletters describing recent legal developments, new cases’ laws, insider views of cases, reviews and comment on legal developments done by them. Many lawyers will call potential clients or use their networks to get a more fruitful interview. Many of today’s top lawyers have been interviewed on TV or by the print media. I struggle to speculate what a reasonable nameplate would look like but thousands of lawyers have an 800 x 600 dpi nameplate on the internet to be seen by whoever logs on! How do you measure ’reasonable size’ in inches or in reach?We have a fait accompli here, so if we call a spade a spade, we would just disclose all what everybody knows.
So why are we in denial? It is true that advertising will always favour those with deep pockets but life is always unfair. It is axiomatic that my driver’s son does not have the same opportunities like the Prime Minister’s son. Is advertising banned in pursuit of a socialistic paradise? The most passionate socialist societies have the worst judicial systems. Sure, advertising can mislead but then cars can also kill. In both cases, the argument can only be a case for regulation, not banning.
“Legal profession is not a ‘sector’ of industry. To bring it under the ambit of the Consumer Protection Act would lead to legal profession being coupled with liability, as it has been in the west. Thus, it will introduce an extra slab of expense in the form of heavy insurance costs, demands from lawyers for upfront (probably only cash) payments of all fees, reference to clients for each decision taken.”
Concerns are also voiced that foreign firms may also establish their offices in India. So, for level-play fielding too, Indian firms should be allowed to advertise. Foreign firms spend a huge amount on advertising. Blanket ban on Indian firms will have adverse effect of denying opportunities and will hamper growth of Indian firms. This will be resulting in diminishing their ability to compete globally and will be precluding consumers of legal services from the opportunity of well informed choice.
Joshua M. Bowman , Esq., Dionne & Gass LLP, Boston, Massachusetts, USA informs, “Advertising is allowed in US enabling a sophisticated business client to easily decide whether the advertised law firm is worth further consideration. For unsophisticated or inexperienced users of legal services, there may be legal rights or options for legal counsel that are entirely unknown. Without attorney advertising, such a person might hire the ‘wrong’ attorney for their particular situation. For instance, Indian lawyers are not allowed to advertise. It adversely affects the interests of clients, who are in search and need of the services of an Indian Lawyer abroad and it is very difficult for an attorney in the US to find an Indian lawyer.” However, according to Professor Arnaud Raynouard, Senior law professor, Vice-president International affairs, Paris, France “The absence of advertisement does not necessarily mean that there is no information about lawyers and their trade, since bar associations usually organise such information.”
In case advertising is allowed, it is necessary to ensure that the advertisements should not contain inaccurate statements, misleading claims about the nature and the quality of legal services and without any comparisons between providers of legal services. Through advertisement, no lawyer should issue statements guaranteeing the decision of the case in favour of the party approaching him. Any advocate acting in violation must be severely punished.
In the west, free flow of commercial advertisements by legal professionals is allowed in general public interest. It is also important for advocates in India to make their expertise known, build brand value and catch up with international trends.
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