INTRODUCTION
Indian constitution Article 19 states that all citizens have right to speech and expression. It means that every one who is citizen of India has right to express themselves not only by word of mouth but also by writing, advertising, posters, banners, movies etc. Right to advertisement is one of the constitutional rights that leads to the growth of any business, services or profession in today’s dynamic and competitive world. Advertisements are the most convenient way to communicate and to give information to the public in large. Forms of advertisement are social media that includes video ads, image ads, story ads, carousel etc. and print media that includes newspaper, posters, banners, events, letters, emails, magazines etc.
Advocacy is considered as ethical practice and it is anticipated that an advocate should not be involved in any act that may harm their image and also allay the confidence of people in legal profession or be malicious to its uprightness. It is also believed that advertisement will result in hostile competition and will affect the quality of services. This is the reason why advertising of the work done by Advocates is prohibited and solicited by Bar Council of India and State Bar Councils.
This article is focused on the provisions for legal advertising and soliciting, nature and extent of prohibition consequences of the violation of the provisions, judicial approach on the legal advertisement and the position in other countries.
HISTORY
The prohibition of Legal Advertising can be pinned down to Rule 36 of Bar Council of India. Rule 36 as provided in Section IV (Chapter II of Part IV of BCI Rules). It states that an Advocate should not advertise or solicit their work directly or indirectly by any means like personal communications, sign boards, newspaper articles or advertisements, name plate of unreasonable size. The sign board should not be implicating that a person is or was the member or the president of the bar council or of any association that has been connected with a person of a particular cause or with the organization working for the matter of particular type of work.
Law – A NOBLE PROFESSION
Law is a profession that works for social cause with public serving goal. The law professionals are considered as a protector of law, the first and foremost goal of the legal professional is to serve the society and then earn for a living.
In the case Indian Council of Legal Aid and Advice vs. Bar Council of India, the Supreme Court held that legal profession is a dedicated profession having its objective to serve the mankind by serving the conduct of justice. It is the duty of the Bar Council of India to restrict the retired people to enter the legal profession in order to earn additional gains. It is important for the legal practitioners to understand that without basics and ethics there is nothing left in the legal profession. That is the reason why law graduates are taught Professional ethics in their course curriculum. To be sure that the young legal professionals are aware of the importance of their profession and their responsibility towards the society.
REASON FOR PROHIBITION ON LEGAL ADVERTISEMENTS
The legal profession is not allowed to advertise because of a simple reason that it is not a trade or business. The reason for the prohibition on legal advertisements is given under Rule 36 of Bar Council of India Rules, these rules restrict advocates from advertising and soliciting their work. The essence of legal services are compassion and advertising by lawyers are regarded as morally wrong.
The reason behind the prohibition of lawyers’ advertising are as follows –
- To maintain the integrity – The first and foremost duty of a legal practitioner is to provide justice and to be in a service for a social cause. Granting the permission to advertise their services can shift their focus from providing the legal aid to the needful person to making their own personal brand, which is not considered to be an ethical creation of the profession.
- To prevent immoral practices – Granting the permission to advertise the legal profession can lead to the hostile competition between the advocates who can even start unfair practices to attract more clients and generate more profitable business for themselves without focusing on the quality of services to be provided to the client. Also, the cost of advertising can lead to higher fees that is again an unethical practice.
- To prevent divergence in legal representation – Not necessarily all the advocates and all the legal firms has money to invest in the advertisement, those who can afford the expense of the advertisement will dominate the legal market. This can result in a lack of representation for the people belonging to poor section of the society who cannot afford the fees of the larger firms or expensive advocates.
- To prevent misleading information – Advertisement can lead to the ambiguous information and overstatement can be harmful. Advertising legal services can infringe the image of the legal practitioner and ethical standards and can also impair the interest of the person who is seeking for the legal aid.
Provisions Regarding Bar Against Solicitation and Advertising
Section 49 of the Advocates Act 1961 gives the power to Bar Council of India to make the rules relating to the standards of professional conduct and etiquettes to be followed by the advocates. Rule 36 as provided in Bar Council of India Rule provides against the advertisement of the legal practitioner
AN ADVOCATE’S DUTY TOWARD THE COURT
- During the presentation of his case and also while acting before a court, an advocate should act in a dignified manner.
- He should at all times conduct himself with self-respect
- An advocate should always show respect towards the court.
- An advocate has to bear in mind that the dignity and respect maintained towards judicial office is essential for the survival of a free community.
- An advocate should not communicate in private to a judge for any matter related to case.
- An advocate should not influence the decision of a court in any matter using illegal or improper means such as coercion, bribe etc.
- An advocate should refuse to act in an illegal or improper manner towards the opposing counsel or the opposing parties. He shall also prevent his client from doing so.
- An advocate shall refuse to represent any client who insists on using unfair or improper means.
- An advocate should appear in court at all times only in the dress prescribed under the Bar Council of India Rules and his appearance should always be presentable.
- An advocate should not enter appearance, act, plead or practice in any way before a judicial authority if the sole or any member of the bench is related to the advocate as father, grandfather, son, grandson, uncle, brother, nephew, first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-law daughter-in-law or sister-in-law.
- An advocate should not wear bands or gowns in public places other than in courts, except on such ceremonial occasions and at such places as the Bar Council of India or as the court may prescribe.
- An advocate should not appear in or before any judicial authority, for or against any establishment if he is a member of the management of the establishment.
- Not appear in matters of pecuniary interest
AN ADVOCATE’S DUTY TOWARDS FELLOW ADVOCATES
- An advocate shall not solicit work or advertise in any manner.
- An advocate’s sign-board or name-plate should be of a reasonable size.
- An advocate shall not permit his professional services or his name to be used for promoting or starting any unauthorized practice of law.
- Although the client is able to pay more but it is a duty of an advocate to not accept a fee less than the fee, which can be taxed under rule.
- If vakalt or memo for the party has been already filled by an advocate, no other advocate should appear in between until taken consent.
- In case, an advocate is not able to present the consent of the advocate who has filed the matter for the same party, then he should apply to the court for appearance.
JUDICIAL APPROACH
- Tata Press Limited Vs. Mahanagar Telephone – Nigam Ltd. & Ors (1995)
In this case the Supreme Court held that the Commercial Speech is the part of Freedom of Speech and expression under article 19 of Indian Constitution. Hence the Supreme Court recognized advertising as a part of the right to freedom.
- VB Joshi Vs Union of India (2008)
In this case the petitioner challenged the rule 36 of Bar Council of India rules. This was the landmark case where the Supreme Court made an amendment to rule 36 and the advocates were allowed to advertise their services on internet. The amendment was made in 2008 after which the following changes were made-
Advocates can furnish only basic details information the website of their choices. The basic information includes name, enrollment number, phone number, email ids, professional and academic qualifications.
They may also mention their area of expertise and number of years of experience. With all this information advocates also have to submit a declaration stating that the information provided is true. Any other information that this will be punishable under the Section 35 of Advocates Act 1961.
- Bar Council of Maharashtra Vs M.V. Dabholkar (1975)
In this case Supreme Court Held that Law is no trade.
- Rajendra V. Pai vs Alex Fernandes & Ors (2002)
Petitioner Rajendra V. Pai filed the case against an advocate that he has done professional misconduct and the bar council of India ordered the removal of his name from the state roll. The supreme Court in appeal finds out that he is guilty and modified the punishment to the suspension of his license for 7 years.
PUNISHMNET UNDER SECTION 35 OF ADVOCATES ACT 1961
On the professional Misconduct by an Advocate, the State Bar council has a power to punish the advocate –
- Dismiss the complaint
- Reprimand the advocate
- Suspend the advocate from practice for such a period as seems fit
- Removes the name of the advocate from the state roll of advocates.
ADVANTAGES OF REMOVING A BAN ON ADVERTISING
- Can prevent Monopoly and can promote the justified competition providing the small and big lawyers and firms to have a platform to show their business.
- It can make easier for the public to make decision to choose right lawyer as they will have the access to all the information they want about the lawyers.
- Banning the advertisement does not give chance to Indian lawyers to work globally and expand their reach.
DISADVANTAGES OF REMOVING A BAN ON ADVERTISING
- Advertising legal services can infringe the image of the legal practitioner and ethical standards and can also impair the interest of the person who is seeking for the legal aid.
- Advertising may give false information and can act as an abuse to the legal system.
- Misleading information can harm the public.
POSITION AROUND THE GLOBE
Previously there was complete ban on the advertisement when it came to legal professional. But as the time is progressing certain countries have accepted that the advertisement of the legal services is good for the personal as well as the social benefits.
Countries like Singapore and European Union promote the advertising although the European countries allow on the condition that the information furnished by them are accurate.
However, Countries like US and UK only allow lawyers to advertise themselves up to an extent with some terms and conditions.
CONCLUSION
Advocates has responsibility towards the public and court, they include some rights as well. As long as these rights do not infringe the responsibility of an advocates, they can practice any right but keeping in mind that the profession they work for is highly dignified. In the era of competition and globalization where on one side the advertising and promotions are key to success for professionals they also act as a shield for the consumer. It is always important to remember that advertisements are not always unjustified, they can provide legal awareness among the public and can also provide the opportunity to increase the potential of the legal practitioner. The restriction on advertising is not doing any good to legal practitioner or public, it is the time for the concerned authorities to realize the importance of the legal advertisement that can not only benefit the lawyers but will also benefit the people.
FAQs
- Why Advocates cannot advertise themselves?
Advocates cannot advertise because of the rules and regulations benched by the Bar Council of India in order to maintain and prevent the dignity of the profession.
- What will happen if an advocate violates the rule?
The advocate is punished under section 35 of Advocates Act 1961.
- What is the exception to the advertising rule?
In 2008 an act was amended and the advocates are allowed put their basic information on the website of their choice.
Author – Swapnil Chauhan, a Student of Translam College Of Law.
