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In 2008, the Bar Council of India (“BCI”) Rules amended Rule 36 to allow restricted informational advertisement of legal services on websites following by petition filed by VB Joshi in Supreme challenging the constitutionality of the Rule 36 itself which prevented advertisement for the lawyers. This was a partial breakaway from the traditional Indian professional ethics imbibed by the English legal practice which in turn had its roots in the public service tradition that “advertising, publicity, [or other] artifice engendered competition among practitioners, thus violating the requirement of courteous treatment and infringing upon the honor and dignity of the profession as a whole”.
However, the amendment to the Rule 36 fails to appreciate the requirement of the consumers, in a globalised and digitised environment, to have legitimate access to information about the legal practitioners in a given territory, not just in terms of their contact details, specializations and qualifications as enumerated by the amendment, but also their market acceptability in terms of the reviews of other consumers, their experiences.
The Greek, Roman and pre-Victorian notion of public service tradition of legal profession reinforced through the BCI Rule 36 preventing advertisements in legal profession have long lost its significance when it was declared as an “industry” (Bangalore Water Supply and Sewerage Board v. A. Rajappa, (1978), SCR (3) 207), then brought under purview of Consumer Protection Act, 1986 (K. Vishnu v. National Consumer Disputes Redressal Commission and Anr. (2000), ALD (5) 367), and thereafter basis the report of the High Level Committee on Competition Policy and Law, that eventually brought legal services under Sec. 2 (u) of Competition Act, 2002 which is aligned to the definition of the term ‘Service’ under Consumer Protection Act.
Such judicial and legislative measures, has in effect to some extent diluted the pronouncement of Justice Krishna Iyer (Bar Council of Maharashtra v. M.V Dhabolkar, (1976) AIR 242) that held, “that the canons of ethics and propriety for the legal profession totally taboo conduct by way of soliciting, advertising, scrambling and other obnoxious practices….”. While it is true that for the legal profession to command dignity should abstain from “scrambling” and “soliciting” but to club the same with “advertisement” would be farfetched and something possibly not foreseen way back then.
In Tata Press Limited vs Mahanagar Telephone-Nigam (1995 AIR 2438) the Supreme Court has upheld the constitutional validity of “Advertisement” as “commercial speech” under Article 19(1)(a) which is nothing more than “dissemination of information regarding the product-advertised” thereby benefitting the public at large because in “a democratic economy free flow of commercial information is indispensable” which would be handicapped without freedom of “commercial speech” as earlier held by Supreme Court in Indian Express newspaper’s case, Sakal paper’s case and Bennett Coleman’s case, thereby authoritatively holding that “any restraint or curtailment of advertisements would affect the fundamental right under Article 19(1)(a)”. It was emphasized by the Court that “public has a right to receive the “Commercial speech” which is not only guaranteed under Article 19(1)(a) but also protects the rights of an individual to listen, read and receive such commercial speech thereby guiding the economic needs of a citizen through the advertisements…the recipient of “commercial speech” may be having much deeper interest in the advertisement than the businessman who is behind the publication.” Therefore, Court upheld the requirement of the consumer to get advertisement of products and services and there is no reason why the legal profession which has been held to be services, should be an exception.
In an increasingly digitized environment, particularly in terms of consumer’s demand for digital access to information of various services, Rule 36, even in its amended avatar might be a challenge and begs a bigger question as to how long such restrictions would be relevant in an olafied and/or uberised world.
In the e-commerce market places for products and services providing accentuated information about such products and services, there would be an increasing consumer demand for more transparent way of selecting lawyers to solve legal problems rather than referrals.
In the medical world, Practo is providing the solution and it is only matter of time that the information about legal services would be available in such similar platforms.
The manner in which Uber and Ola has rendered taxis and their highhandedness meaningless, a similar service can render any age-old notion of legal profession or professionals in a given locality to be indispensable, meaningless.
In US, there are already legal marketplaces such as:
Bridge.US – “Top attorneys and easy-touse software that make immigration delightfully simple”
DirectLawConnect – “FInd a fixed fee online lawyer in your state now.”
Hire an Esquire – “Legal staffing redefined online.”
LawGo – On Demand lawyers for a fixed fee in personal and small business matters.
LawKick – “Find the right lawyer at the right price”
LawNearMe – “Law Near Me offers an attorney referral service to help you find the legal representation you need in a variety of areas.”
LawZam -“Free legal consultations by video-conference.”
PrioriLaw – “lawyers hand-picked for your business.”
RocketLawyer – “Legal Made Simple”
Any effort to restrict or control such market places, in the manner Uber and/or Ola are being subjected to in Maharashtra, will only invite constitutional challenges as the same will be against the very notion of a free market economy.
Such market places, in turn will increase competition and will have a direct consequence on the efficacy and efficiency of the legal professionals. The initial effect would be for the noncontentious transactional lawyers. Imagine that a Real Estate website like Magic Bricks ties-up with local lawyers of a given territory for catering to the legal requirements of consumers who finalize their deals through their website. Similarly, an UrbanClap, which provides services through websites, also lists consumer lawyers for any product deficiency cases or even Practo providing list of lawyers for Motor Accident claims. The possibilities of such specific and specialized legal non-contentious services are endless which over a period of time will scale up from individual consumers to small businesses to even larger business houses/corporates.
It has the potential of standardizing legal formats, legal service software and eventually effecting the contentious legal environment as well leading to requirements for increased e-Courts, where clients may need to appear only for trial, rest all the steps in a contentious matter can be achieved by way of e-filling, similar to WIPO’s arbitration process, thereby increasing the need for training for lawyers.
It will certainly enhance the scope of employability of the young legal graduates in the Courts and IT professionals and easy accessibility of the consumers to the justice system, transparency of costs, increased and informed affordability, and most important, the speed.
Any technological change being disruptive will also have pitfalls, starting with increased competition resulting in loss of client base, lowering of fees as a result of transparency, increased accountability of lawyers and judiciary alike, loss of livelihood for lawyers not able to keep pace with technology.
And it will be at this stage that BCI might rein in with its rules and collective bargaining capacity to protect the legal community from any possible harmful effects of technology. This will be a stage before the machines, the machine learning and eventually the Artificial Intelligence takes over. Only time will tell whether there will be a leapfrogging from present state to the state of AI control.
In our life time we might actually witness the end of the age-old maxim “justice delayed is justice denied”.
Ayan Roy Chowdhury is currently a Head Legal with SPE Films India. Ayan’s previous experiences include General Counsel of Balaji Telefilms Ltd, Associate Vice President Legal, Sony; Senior Specialist at Accenture and stints with Reliance Entertainment and National Securities Depository. Ayan was associated with Queen Mary Intellectual Property Research Institute, Queen Mary as a Herchel Smith research scholar and has Master’s degree from Max Planck Institute for Intellectual Property, Munich, and LL.B from Calcutta University.
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