Advocates barred from advertising their services

INTRODUCTION

Advocates in India are barred from advertising their services or their profession under the rules formulated by the Bar Council of India. The roots of this law are based in the age old Victorian notions of British Common law. The conception of legal services as a ‘noble profession’, rather than services has resulted in the formulation of such a restraint. This law justifies itself under the garb of public policy and ‘dignity of profession’; allowing the advocates to advertise would not only pave way to potentially misleading the public, but also to ‘degrade the dignity’ of the honorable profession.

Despite this prohibition, there are many ways in which a lawyer intending to advertise himself does it cleverly, concealing the obviousness of his act at the same time. For instance, the issue of circular letters or election manifestos by an advocate with his name profession and address is an indirect means of advertising, which is followed by a number of practicing advocates in the Courts though illicitly.

THE LEGAL BACKGROUND

In the year 2008, the Bar Council of India Rules was amended in order to liberalize the strait-jacketed law governing advocate advertising.

The Bar Council of India, pursuant to its functions mentioned under Section 7(1)(b) of the Advocates Act,1961 read with its powers to make rules under Section 49(1)(c),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-

“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 organisation or with any particular cause or matter or that he specialises in any particular type of worker or that he has been a Judge or an Advocate General."

It can be clearly seen that this rule completely disallows the advocate from employing any means to intimate the client of his very existence. These go on to include visiting cards, directory listings and seminar and felicitation ceremonies too. Even the sign plate or name board used should be of a moderate size [2] .Recently, The Bar Council of India passed a resolution on 30th April, 2008 [3] in front of a three-member bench of the Supreme Court headed by Justice B N Aggarwal that advocates will be allowed to advertise on the internet. The bench was hearing a petition filed by an advocate, V B Joshi, in the year 2000, challenging Rule 36, Section IV of the BCI rules which prohibits the legal fraternity from advertising their services.

A proviso was added to Rule 36 of the Bar council of India Rules, consequent to this resolution, which reads as follows-

“PROVIDED that this rule will not stand in the way of advocates furnishing website information as prescribed in the Schedule under intimation to and as approved by the Bar Council of India. Any additional other input in the particulars than approved by the Bar Council of India will be deemed to be violation of Rule 36 and such advocates are liable to be proceeded with misconduct under Section 35 of the Advocates Act, 1961 [4] ."

By bringing an amendment to the said rule, the Bar Council of India resolved that the advocates could furnish the information on their chosen websites by mentioning 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 specialisation and years of experience. [5] 

Though this amendment is still fraught with a number of restrictions, it is still a welcome reform amongst the legal circles, who only a decade back in a notice dated 21st Ocober,1999, were directed to pull their entries from www.martindale.com, an online legal directory. [6] 

POSITION IN OTHER COUNTRIES

In England

India has borrowed its no advertising for advocates rule from the age old Victorian ideas but today the law has been updated to suit the requirement of the hour. The law governing advertisements is contained in the Solicitors Publicity Code of 2007 [7] . The only constraint is the requirement that the advertising by a solicitor must not demean his independence and integrity and must not bring the profession to shame.

Sending brochures and leaflets is now common though larger and well established firms do less advertising than the well established practices. The law governing advertising by barristers allows them to engage in any advertising or promotion, which is in accordance to British Codes of advertising and sales promotion. These advertisements can include photographs or other illustrations of the barrister, statement of rates and methods of charging; statement about the nature and extent of barristers’ service; information about any case in which the barrister appeared all this information has been publicly available.

In United States of America

In U.S. the position was somewhat similar to that in India until 1977. There was a complete ban on advertising for legal professionals. This position turned around after the decision of the U.S. Supreme Court on 27th June 1977 in the case of Bates v. State Bar of Arizona [8] . The Supreme Court allowed legal advertising and outlawed the law of State Bar of Arizona when it was found that such a law was violative of First Constitutional Amendment as was held by a majority of 5:4. Prior to this case, the US Supreme Court held that bonafide legal advertising should not be prohibited as there is nothing wrong in it. But the states are allowed to regulate and monitor the advertising by advocates. This is known from the later judgments given by the state Supreme Courts which have upheld the laws regulating and restricting certain practices of legal advertising [9] .

In Asian Countries

Asian countries such as Hong Kong, Singapore and Malaysia have been progressively relaxing their regulations on legal advertising to adapt to global demands. For instance, Malaysia’s Legal Profession (Publicity) Rules, passed in 2001 [10] is a simple yet comprehensive code that regulates advertisements in legal and non-legal directories, controls publication of journals, magazines, brochures and newsletters by lawyers and interviews in electronic and print media, bars publicity through clients and even includes a rule that regulates lawyers sending greeting cards on special occasions.

In Hong Kong, lawyers are forbidden from advertising on television, radio and cinema. Though advertising in print is permissible, larger firms prefer alternative strategies such as engaging in aggressive client and public relations programs and branding exercises.

In Singapore the legal advertisements are allowed with certain restrictions.

CRITICAL ANALYSIS

The idea of advocate advertising is alluring, yet it comes with its own shortcomings precisely the reason for which it is still not completely allowed in our country.

The pros of introducing an amendment in the rules regarding advocate advertising would be-

Informed choice - probably the biggest advantage of this change would be the amount of awareness that would be catered to the general public. People would not have to depend on the word of mouth or a friend-of-friend to recommend them a lawyer; rather they could make their choice on the merit of the lawyer.

Opportunity to novice lawyers and firms- it would prevent monopolizing of the market. Advertising would let the lesser known firms or advocates keep a check on the other well known firms and advocates by way of imposing a threat, as now there are more options that the public is aware of from which it can avail the same service.

Modulate the ‘advertising methods’ already in place- the fact is not that advocates have no means by which they advertise themselves despite the restriction imposed by the Rules. There is ‘Toutism’, touts are persons who procure business in consideration of commission moving from legal practitioner [11] . There have been instances of brief snatching too [12] !

A set of rules regulating advertising would not only regulate these malpractices, but also uphold he purpose for which they were undertaken.

The cons introducing an amendment in the rules regarding advocate advertising would be-

Gross misuse- probably the biggest advantage, putting it in the words of one of the Supreme Court judges of the U.S.A.-‘there is some abuse in the use of everything.’ The clean chit to advertise would most likely be fully exploited by unscrupulous advocates and firms by furnishing dishonest information.

Unbiased choice- it is hard to say for sure that the public would definitely not be swayed by the graphics or the punch lines in the advertisements, and base their decision on a flimsy ground. Awareness to the public through advertisements will always be carried at the cost of a chance of misguiding them instead.

Shifting of focus- the legal world would have a new focus, competition to make better jingles or art work rather than improving on the legal acumen. And clearly better advertisements were never proportional to better lawyers.

However, the fact remains that there still are indirect methods of advertising already in place and therefore, we are suffering from all the cons mentioned above, only that because it has not been formally allowed to advertise, we cannot enjoy the pros.

RECOMMENDATION

The amendment in Rule 36 of the Bar Council of India Rules in 2008 hence, allowing advocates to advertise on the website has been indeed a welcome gesture but we need much more than. India no longer is an isolated country not connected with the world. Other countries attempting to trade with India will need lawyers to understand our legal system. To make their choice they just have websites or online directories with their names and areas of specializations, they are not even blessed with access to information through the grapevine!

The Bar Council of India must bring about the change by bringing about the freedom to advertise by advocates but by employing reasonable restrictions. Bar associations around the world have formed their own code for the professional ethics to be maintained by the advocates.

The American Bar Association has laid down Model Rules of Professional Conduct which lay down criteria in accordance with which he attorneys are allowed to advertise.

According to Rule 7.3(a) [13] -

“a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted:

(1) is a lawyer, or

(2) has a family, close personal or prior professional relationship with the lawyer."

This non-solicitation rule follows the longstanding policy against lawyers directly soliciting clients. This is designed to prevent what is euphemistically called "ambulance-chasing," which gives visions of lawyers descending on accident victims by following the sounds of sirens.

Also under Rule 8.3 (a) [14] of the same Model Rules-

“a lawyer that becomes aware of an ethical violation by another lawyer is also obligated to report such violation to the respective state governing body."

Thus, the check on a lawyer is extended by his own colleagues and the sole responsibility doesn’t lie with the supreme governing body.

Similarly, England follows The Solicitor’s Code of Conduct, 2007 which again lays down the rules in the parameters of which the advocates and advertise.

The code clearly states in Rule 7.03 [15] -

“(1) You must not publicize your firm or practice by making unsolicited approaches in person or by telephone to a member of the public.

(2) "Member of the public" does not include:

(a) a current or former client;

(b) another firm or its manager;

(c) an existing or potential professional or business connection; or

(d )a commercial organisation or public body."

The current position is that, advertising is not allowed but the catch here is that it is only ‘legally’ not allowed although it is prevalent all the same. Time has come to take a big step ahead, revamp the rules to suit India’s needs now not only in the domestic sphere, helping the small firms and struggling lawyers, but also in the international context. Or else, we as a country might lose out on many a lucrative offers, as the saying goes-

“The cod fish lays ten thousand eggs, the homely hen lays one, the cod fish never cackles, to tell you when she is done; and so we scorn the cod fish, while the humble hen we prize, which only goes to show you that it pays to advertise."