“A bar on advertising for Advocates in India under Advocates Act,1961 and Bar Council of India Rules” ANALYSED BY: MOSES PINTO 5TH YEAR LL. B. (HONS. ) ROLL NO. 512 ACADEMIC YEAR: 2012-13 PREFACE After the Second World War the International Economic Order which emerged, encouraged Free Trade in goods & services. India was a founder signatory to the General Agreement on Tariffs and Trade (GATT) since 1947, which led to the formation of WTO, on 1st January 1995.
This has led to a whole wide debate in India over the stringent laws governing code of ethics and morality of Legal Professionals on one hand and the WTO laws on the other hand. This debate revolves around major issues pertaining to the objectives of legal profession, consumerism, social justice, Indian commitment to WTO regime, competition law etc. Some professionals argue that the shift in trade nature of legal services shall hamper ‘professional ethics’ and concept of ‘justice to all’.
Some others say that the regulations imposed on the legal services sector are contrary to the goals and purpose of competition policy and Competition Act, 2002. At the heart of this controversy lies the issue of legal advertising. The lawyers in India are barred from advertising their profession considering the profession to be a noble one and such advertising to be derogatory to that profession. Advertisements are a forum for establishing the utility of goods and services. Further, it enhances and encourages competition in the relevant market by providing a forum for launching of new products.
In the view of the above background, I would like to discuss the laws banning the advertising for legal professionals in India and their implications, considering the position of such laws in other developed countries owing to the WTO norms. INDEX I. CHAPTER I: The Law on Legal Advertising in India * The law under Bar Council of India Rules; * The Judiciary on this rule II. CHAPTER II: Law in other Countries * Position in U. K. * Position in U. S. * Position in other countries III. CHAPTER III: The Constitutional validity of Rule 36 IV.
CHAPTER IV: Disadvantages of banning Legal Ads * Consumerism and Informed Choice * Advertisement on Internet * Other disadvantages * Need for regulating the advertising V. CONCLUSION. I. CHAPTER I: The Law on Legal Advertising in India After taking into account the recommendations of the Law Commission on the subject of Reform of Judicial Administration relating to the Bar and to legal education and to implement the recommendations of the All India Bar Committee made in 1953, the Indian Legislature came up with the Advocates Act, 1961.
This act under the section 4 forms a Bar Council of India to regulate all the legal professionals and legal education in India. The Bar Council of India is the central institution for supervising and monitoring the growth and development of legal services and the functioning of advocates & related firms & corporations in India. Pursuant to the functions of Bar Council of India under section 7 and its power to make rules under section 49 of the said Act, it has enacted the Bar Council of India Rules which are binding on all the legal professionals in India. The law under Bar Council of India Rules There is a complete ban on advertising for lawyers in India. The Bar Council of India, pursuant to its functions mentioned under Section 7(1)(b) of the Advocates Act 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: “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 work or that he has been a Judge or an Advocate General. ” Thus, it is against an advocate’s code of ethics to solicit or advertise work and amounts to a misconduct on the part of the advocate. Both direct and indirect advertising is prohibited.
An advocate may not advertise his services through circulars, advertisements, touts, personal communication or interviews not warranted by personal relations. Similarly, the following forms of indirect advertising are prohibited: A. by issuing circulars or election manifestos by a lawyer with his name, profession and address printed on the manifestos, thereby appealing to the members of the profession practising in the lower courts who are in a position to recommend clients to counsel practising in the high court B. anvassing for votes by touring in the province or sending out his clerk or agents to the various districts, which must necessarily mean directly approaching advocates practising in subordinate courts. Further, the signboard or nameplate displayed by an advocate should be of a reasonable size. It should not refer to details of an affiliated by the advocate i. e. that he is or has been 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 hat he is or was associated with any person or organisation or with any particular cause or matter. Further advertising on internet is also prohibited. Bar Council of India, in a notice dated 21st October 1999, reaffirmed that such ‘advertisements’ on the Internet are considered an offence. It ordered all the legal Websites to be withdrawn immediately, under threat of legal action ranging from temporary suspension to permanent debarring of the lawyer from practice. The above rule has been vehemently enforced by the Bar Council of India, simply disregarding all the criticisms made against this archaic rule.
Further, the words of Section IV of Chapter II of Part IV of Bar Council of India Rules are clear i. e. “Duty to colleagues”. This means that the another reason behind enactment of such a norm is to prevent the advocates, law firms, etc from enticing the clients of their adversary and to snatch away the business of their adversary. Such a law is also made in order to help the small and unknown advocates and firms to rise in the market and do business. The purpose behind it is to prevent a set of lawyers from taking unreasonable advantage.
Also such a law prevents lawyers from falling below their dignity in order to fetch clients by doing anything and thus degrading the nature of the profession. * The Judiciary on this rule The courts have more or less agreed with the view of the Bar Council and have implemented the rule laid down by the Council pertaining to advertising. The Supreme Court of India observed in Bar Council of India v. M. V. Dhabolkar, that “….. the canons of ethics and propriety for the legal profession totally taboo conduct by way of soliciting, advertising, scrambling and other obnoxious practices…. It further noted that “Law is not a trade, not briefs, not merchandise, and so the heaven of commercial competition should not vulgarize the legal profession”. The Allahabad High Court observed that self advertising tends to lower the dignity of this honourable profession and is undoubtedly akin to touting. The Bombay High Court in Government Pleader v. S, a Pleader considered sending a circular postcard merely giving the address and description as an improper conduct by the Advocate.
The High Court of Madras went one step ahead in SK Naicker v. Authorised Officer and held that even a sign board or a name-plate should be of a moderate size. It has been further observed that writing of articles for publication in newspapers under his signature, where the writer describes himself as an Advocate practicing in the court as a flagrant breach of professional etiquette. Thus, legal advertising by far is a taboo in India and the courts have more or less approved and agreed with this rule framed by Bar Council of India.
II. CHAPTER II: Law in other Countries Legal advertising has been an important and widely used tool of communication in many common law countries and in most of the developed countries like US, UK, etc. It is used by the lawyers to promote their professional services. It is allowed in most of the countries with regulations regulating it as compared to India where it is completely banned. In these countries the regulation is done in order to avoid false, misleading & deceptive advertisements but advertisements displaying truth are allowed. The legal system is often a mystery, and we, its priests, preside over rituals baffling to everyday citizens. ” – Henry Miller * Position in U. K. The provision banning advertisement adopted in India has its roots in Victorian notions of U. K. which considered each and every profession to be noble and stated that such a regulation is necessary in order to preserve the dignity and nobility of this profession. Earlier, in U. K. too advertising was banned for professionals like lawyers. But later this ban was lifted.
The Monopolies and Mergers Commission in 1970 and the review given by the Office of Fair Trading in 1986 pointed out at the advantages of letting the professionals advertise and the benefits availed by from relaxing such norms. Ultimately the ban was lifted and the restrictions lowered and thus legal marketing and legal advertising became a reality in U. K. * Position in U. S. 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 took a complete U-turn after the decision of the U.
S. Supreme Court on 27thJune 1977 in the case of Bates v. State Bar of Arizona. The Supreme Court validated legal advertising and invalidated the law of State Bar of Arizona banning legal advertising by a majority of 5:4 holding such a law violative of First Constitutional Amendment. Prior to this case, the U. S. Supreme Court validated commercial advertisement and gave its scope in the 1942 case of Valentine v. Chrestensen. Later in Bigelow v. Virginia (1975) and in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council Inc. (1976) the U. S. S. C. nvalidated laws restraining ads marketing abortion services and ads showing prices of prescription drugs on the basis that they violated First Constitutional Amendment i. e. Freedom of Speech and Expression and held that “the free flow of commercial information is indispensable. ” All these decisions were adopted in the Bates’ judgment by the US SC and it was held that truthful legal advertising should not be prohibited as there is nothing wrong in it. The court invalidated in this appeal the law prohibiting legal advertising holding it to be violative of freedom of speech and expression guaranteed by the First Constitutional Amendment.
Justice Blackmun argued that commercial speech does merit First Amendment protection given the important functions it serves in society, such as providing consumers with information about services and products, and helping to allocate resources in the American system of free-enterprise. The Court held that allowing attorneys to advertise would not harm the legal profession or the administration of justice, and, in fact, would supply consumers with valuable information about the availability and cost of legal services. But the states are allowed to regulate and monitor the advertising by advocates.
This is evident from the later judgments of various state Supreme Courts which have upheld the laws regulating and restricting certain practices of legal advertising. * Position in other countries The position in other developed countries is also quite clear. Advertising is allowed in most of the countries. In France, though the law is not that liberal, it stands somewhere between Indian and U. K. position. There is not a complete ban on advertising. Also in Italy, the legal marketing has been legalized by the Bersani Decree of 2004 which was enforced in 2007.
This has been true for most of the European countries like Germany, Spain, etc. Legal Advertising is a reality everywhere. Besides countries in the West, 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 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 edia, 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 programmes and branding exercises. Even in Singapore the legal advertisements are allowed with certain restrictions.
Thus, it is clear that most of the countries have adopted a liberal policy towards legal advertising and has allowed it to meet the global demands and compete with the other countries. This has resulted only in advantages and benefits for those countries and no harm is done on the contrary. III. CHAPTER III: The Constitutional validity of Rule 36 The Rule 36 of Bar Council of India Rules, prohibit advocates from advertising. This Rule cannot be challenged with regards to A. 19(1)(a) i. e. reedom of speech and expression as done in US in the case of Bates v. Arizona State Bar, because of the decision of Indian Supreme Court in the case of Hamdard Dawakhana v. Union Of India. The Supreme Court came on to decide validity of law banning advertisement for the sale of certain medicines in this case against A. 19(1)(a) of Constitution of India. The Court held that: “An advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed. It assumes the attributes and elements of the activity under Art. 9 (1) which it seeks to aid by bringing it to the notice of the public. When it takes the form of a commercial advertisement which has an element of trade-or commerce it no longer falls within the concept of freedom of speech for the object is not propagation of ideas – social political or economic or furtherance of literature or human thought; but as in the present case the commendation of the efficacy, value and importance in treatment of particular diseases by certain drugs and medicines. In such a case, advertisement is a part of business even though as described by Mr.
Munshi its creative part, and it was being used for the purpose of furthering the business of the petitioners and had no relationship with what may be called the essential concept of the freedom of speech. It cannot be said that the right to publish and distribute commercial advertisements advertising an individual’s personal business is a part of freedom of speech guaranteed by the Constitution. ” In the view of the above decision, the commercial advertisement is not a part of freedom of speech and expression and thus ban on advertisement for advocates is justified to be falling within reasonable restriction as stated under A. 9(2). The only remedy left is to challenge its constitutional validity against A. 19(1)(g) i. e. freedom to carry on Trade, Profession or Business. Article 19 (1) (g) of the Constitution of India confers every citizen with the right to choose his own employment or to take up any trade or calling. This right is impregnated with an implied right for availing all the mechanisms and resources – including advertising – for effective carrying of the trade or occupation provided it doesn’t go against public interest.
Any blanket bar on this right would be unreasonable when there is an option of constituting a specialized government body that would examine the content of the advertisement. The question that remains is whether legal profession falls under the category of trade or business so as to avail the above right? Even though the judiciary in the words of Justice Krishna Iyer, has held that Legal Profession is such a noble Profession that it cannot form a part of trade or business, the recent trend of the courts is to justify this profession as a rade. Over the years, the courts have recognized ‘Legal Service’ as a ‘service’ rendered to the consumers and have held that lawyers are accountable to the clients in the cases of deficiency of services. In the case of Srinath v. Union of India, the Madras High Court held that, in view of Sec. 3 of Consumer Protection Act, 1986 that Consumer redressal forums have jurisdiction to deal with claims against advocates. Sec. 2 (U) of the Competition Act, 2002 defines the term ‘Service’ along the lines of the Consumer Protection Act, 1986.
Also the decision of Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa, holds that legal profession is covered under the definition of the term Industry under the Industrial Disputes Act, 1947. Further it should be noted that India is a part of WTO and is subjected to WTO laws and legal services are listed as a subsection of Business Services in WTO Services Sectoral Classification list. In the view of the above background, the fundamental right to advertise guaranteed under A. 19(1)(g) can be given to the legal professionals to promote their services.
This right thus, can be taken away only by imposing a reasonable restriction under A. 19(6) of the Constitution The Supreme Court further observed that: “Unless it is shown that there is a reasonable relation of the provisions of the Act to the purpose in view, the right of freedom of occupation and business cannot be curtailed by it……….. the phrase ‘reasonable restriction’ connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word ‘reasonable’ implies intelligent are and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Art. 19 (1) (g) and the social control permitted by cl. (6) of Art. 19, it must be held to be wanting in that quality. ” Restrictions can be laid by regulating and monitoring the advertising but not completely banning it as it would be going beyond what is required as regulating the advertisement is sufficient in public interest.
Presently a writ petition is pending before the Indian Supreme Court challenging this rule of Bar Council of India. The petition was filed by Mr. V. B. Joshi who is an advocate practicing in the Supreme Court. In the last hearing of this matter in September 2007, the Government agreed to relax this law a bit. The Government agreed to allow the lawyers advertise on their own website and to enter their name into online directories but all these to be done under a committee monitoring it. IV. CHAPTER IV: Disadvantages of banning Legal Advertisements
Globalization brought about a revolution in international trade with increasing participation and involvement of countries The implication of the same on the legal service sector has been both quantitative and qualitative. The past decade has been mini-revolution in legal service sector with the greatest legal impact on corporate legal arena activities in project financing, intellectual property protection, environmental protection, competition law, corporate taxation, infrastructure contract, corporate governance and investment law were almost unknown before 90’s.
Globalization has expanded the internal and external demand for legal services. Today trade in legal services is an inevitable fact and is at the same time significant for progressive development of legal profession in India in this era of Globalization. * Consumerism and Informed Choice In the age of consumerism and competition law, consumer’s right to free and fair competition is paramount and cannot be denied by any other consideration. Informed choice is one of the rights of a consumer. Ban on advertising leads to depriving consumers of valuable information about the advocates.
This has resulted in a situation where consumers cannot make an informed choice from the competitive market since information relating to the service is not available to them. Moreover restriction on professional firms on informing potential users on range of their services and potential causes further injury to the competition. The services available to consumers of India are only domestic legal service providers and consumers most often are left at the mercy of advocates and the system . Thus it is very detrimental as they cannot resort to any other service provider in absence of choice. Advertisement on Internet Looking at the recent trend of Globalization and India joining the WTO, it has become inevitable to let lawyers advertise to compete in the global market. Not allowing lawyers to advertise has resulted in Indian lawyers losing a lot of potential clients internationally. It is realized that in this era of cyber age instead of turning to the Yellow Pages, the public increasingly uses online search engines and other Internet tools to find needed goods and services and with the concepts of legal process outsourcing increasing, i. . to find cheap legal services, people from countries like UK and US and other developed countries search for such services online. But these searches results in not a single Indian attorney or advocate or a law firm as India bans advertising by them as compared to other neighboring Asian countries which allow it and hence a lot of potential clients are lost, in turn affecting the economy of India largely. Thus, India has lost lot of economic revenues and thus it would be beneficial for India’s economy to lift the ban on advertising for advocates.
The Government has recently agreed on lifting it but only allowing the advocates to advertise on their own websites and in online legal directories. But no one knows when this will be implemented. * Other disadvantages The report of Monopolies and Mergers Commission in U. K. stated that restrictions on advertisement by professionals reduce the stimulus to efficiency, cost saving, innovation, new entry to professions and competition within the professions.
Thus, new entrants who require to establish their name in the market in order to get clients, are deprived of doing so through advertising as this is the most simplest and easiest method to enter into a market. Also restrictions enhance the more undesirable effects of less open methods of self promotion. Also they could give a false image to a profession. Thus banning advertisement by lawyers is completely disadvantageous to the Indian society as a whole. * Need for regulating the advertising The need of the hour is to lift the total ban on advertising by advocates but not to completely let it free.
It is required to be regulated. In case it is not monitored and regulated, then there would be lot of malpractices of misrepresentation, deceptiveness and false advertisements which would affect the society and degrade the nobility of this profession. The U. K. ’s Monopolies and Merger Commission in its report stated that the restrictions on legal advertising should be lifted but the law must also provide that: 1. No advertisement, circular or other form of publicity used by the member should claim for his practice superiority in any respect over any or all of the practices of other members of the profession. . Such publicity should not contain any inaccuracies or misleading statements. 3. While advertisements, circulars and other publicity or methods of soliciting may………….. make clear the intention of the individual member to seek customers, they should not be of a character that could reasonably be regarded as likely to bring the profession into disrepute. Thus, it is required that the advertising by legal professionals be regulated in order to avoid instances of ambulance chasing, barratry, misrepresentation, etc. This kind of regulation is also permissible under A. 9(1)(6) of Constitution of India in the interests of public. V. CONCLUSION The ban on legal advertisements in India has not proved healthy so far for the Indian economy as well as Indian consumers. India has adopted WTO laws and a free market policy and thus accepting ‘trade’ facet of legal services would develop this profession qualitatively. The Raghvan Committee has summed up the effect of the existing regulatory system in professional services as “.. the legislative restrictions in terms of law and self-regulation have the ombined effect of denying opportunities and growth of professional firms, restricting their desire and ability to compete globally, preventing the country from obtaining advantage of India’s considerable expertise and precluding consumers from opportunity of free and informed choice. ” Time is ripe to break shackles of this overwhelming regulation subjecting legal profession away from modernity and banning it from advertising. India must remember its commitment to WTO for opening service sectors including, legal services, globally.
Thus all the regulations have to be in conformity with competition policy and the Act. Hence, there is a craving need to lift this ban and to form rules and policy to monitor and regulate legal advertising. A committee could be formed to ensure compliance but laying blanket ban on legal advertising would hamper development and growth of India. BIBLIOGRAPHY Articles, Websites, Reports and others: 1) Abhibav Kumar, “Lawyers must be allowed to advertise”, at http://news. indlaw. com/guest/columns/default. asp? abhinav (last visited on 25th November, 2007). 2) Anubha Charan, “Is it unethical for lawyers to put up their own Website? , October 15, 2001, at http://www. rediff. com/search/2001/oct/15law. htm (last visited on 24th November, 2007). 3) Bar Council Entry of Foreign Lawyers in India, August 30, 2003 at http://www. news . indiainfo. com/ (last visited on 22nd November, 2007). 4) Bhadra Sinha, “Lawyers may be allowed web ads”, September 19, 2007, at www. hindustantimes. com (last visited on 20th November 2007). Also see Supra note 6. 5) Cyber Search – What Does Search Engine Marketing Mean For Solicitors? , at http://www. samsonconsulting. co. uk/legal-marketing-article-cyber-search. htm (last visited on November 25, 2007). ) David L. Hudson, “Bates participants reflect on landmark case”, at http://www. firstamendmentcenter. org/analysis. aspx? id=14394 (Last visited on 22nd November, 2007) 7) http:// en. wikipedia. org/Legal_Advertising (last visited on 22nd November 2007). 8) Lawyer can’t be blamed if his name appears in print, says Punjab A-G, May 25, 1999, at http://www. indianexpress. com/res/web/pIe/ie/daily/19990525/ige25114. html (last visited on 18th November 2007). 9) Legal Websites, A World Wide Web Of Opportunies, at http://www. samsonconsulting. co. uk/legal-marketing-article-solicitors-websites. tm (last visited on 22nd November, 2007). 10) Malathi Nayak, India debates letting lawyers advertise, at http://www. livemint. com/2007/10/21235346/India-debates-letting-lawyers. html (last visited on 25th November, 2007). 11) Rajiv Dutta, “World Trade Organization and Legal Services: The Indian Scenario”, at www. insolindia. com/shimlaPDFs/worldTradeOrg. pdf (last visited on 23rd November, 2007). 12) Report on Trade in Legal Services, “Trade in Services: Opportunities and Constraints”, Ministry of Commerce, Government of India, Executed by Indian Council for Research in Economic Relations, Coordinator(s) N.
L. Mitra and T. C. A Anand. 13) Singh Lalithakumar I. , “A View on Legal Profession”, AIR 2006 (Jour. ) 1. 14) Statement of Objects and Reasons, The Advocates Act, 1961. 15) Swapnil Joshi, “Changing Face Of The Legal Profession In India In The Era Of Globalization”, at http://www. legalserviceindia. com/articles/lprof. htm (last visited on 25th November, 2007). 16) V K Aggarwal, “Professional Advertising: A comparative analysis in the changing milieu”, 7th National Conference of Practising Company Secretaries. 7) World Bank Report on Emerging Service Sector, 1999 quoted in The Raghvan Committee Report on Competition Law, 2000. 18) www. legalmarketing. it (official legal marketing Italia website, last visited on 24th November 2007). Dictionaries: 1) H. Black, Black’s Law Dictionary (5th ed. , St Paul: West Publishing Co. , 1979) 1059. 2) The Concise Oxford Thesaurus compiled by Kirkpatrick Betty; Oxford University Press. 3) Webster’s New English Dictionary; Black Dog & Leventhal Publishers Inc, 2nd Edn 1995.