Legal News

ADVERTISEMENT OF ADVOCATES

 

follow us on twitter

 

 

SIDDHARTH JAISWAl, B.A. LL.B. Allahabad University

“…..the canons of ethics and propriety for the legal profession totally taboo conduct by way of soliciting, advertising, scrambling and other obnoxious practices….”

                                                                – Justice Krishna Iyer

India is a country having more than 1.2 millions advocates.[1] Advocates, in addition to being professionals, are also officers of the courts and play a vital role in the administration of justice. Accordingly, the set of rules that govern their professional conduct arise out of the duty that they owe the court, the client, their opponents and other advocates. In India the legal profession is considered as a noble profession which is being assessed by standards of legal ethics.

As stated by Lloyd Pearson, there is insufficient information about the practice of law by advocates in India[2] and its primary reason is the prohibition on legal advertising because The Bar Council of India (BCI) maintains strict standards with respect to the legal community whose example can be seen as Rule 36 which illustrate the aforesaid thing. It does not imply that the BCI has completely confined itself to this rule, as that is evident from its decision to amend Rule 36 and add a proviso allowing advocates to maintain their websites in order to disseminate information to enable people to make choices.

Legal advertising refers to legal professionals publicizing the services provided by them through the Court of law, implying the legitimate administrations provided by legal counselors.[3]

The prohibition has its origin in England, founded on the Victorian notions developed during the British Rule.[4] The prohibition is based on its adverse effects on professionalism as commercialization of legal professionals was believed to undermine the lawyer’s sense of dignity and self-worth and there would be unhealthy competition which would result in poor quality of services.

THE LEGAL BACKGROUND

Under the Advocates Act 1961, the BCI has the power to make rules in order to discharge its functions, based on which, it has formulated its rules.[5] In the year 2008, the BCI Rule was amended in order to liberalize the strait-jacketed law governing advocate advertising.

Rule 36 of the BCI says that an advocate shall not solicit work or advertise, either directly or indirectly, whether by circulars, advertisements, touts, or with any of the way which has been mentioned in the rule. Further it also says that the sign-board or name-plate should be of a reasonable size and should not indicate that anybody specializes in any particular type of work or is or has been holding any type of office post.

However, the Rule was amended, pursuant to a resolution passed by the BCI on 30th April, 2008[6] before a three member bench of the Apex Court, that advocates will be allowed to advertise on their websites,[7] in conformity with the Schedule, as per which their name, address, telephone, e-mail, enrolment number, professional and academic qualifications, areas of practice can be mentioned with the declaration that the information provided by them is true and any additional other input in the particulars than approved by the BCI will be deemed to be violation of Rule 36 and such advocates are liable to be proceeded with misconduct under Section 35 of the Act.

JUDICIAL APPROACH

The judiciary has also reinforced this prohibition, which can be reflected in words of Justice Krishna Iyer, when he noted, Law is not a trade, not briefs, not merchandise, and so the heaven of commercial competition should not vulgarize the legal profession.[8]

In a case the Madras High Court explained that, advertisements by lawyers is regarded as reprehensible conduct because the standards which lawyers jealousy develop and setup for themselves are unbecoming to the honor, dignity and position of the noble profession.[9]

POSITION IN OTHER COUNTRIES

In India, the legal profession is considered to be honorable one, which is why its advertisement is cynical and not widely accepted and same is the position in England, earlier legal advertising was prohibited but the advantages of letting legal professionals to advertise were highlighted in 1970 and 1986 and the ban was lifted.[10] The law governing the advertising is contained under Solicitors’ Publicity Code, 1990 which has been amended and published in 2016 according to the changing needs of the hour.

In USA the position was same till 1977 as Ordinance 27 of the Professional Ethics of American Bar Association[11] stated that it was unprofessional to advertise legal work. However it has become constitutionally protected right following the decision of the US Supreme court in Bates v. State Bar of Arizona.[12] The law governing the advertising is contained under Model Rules of Professional Conduct, 1983.

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 biggest advantage of this change would be the amount of awareness that would be catered to the general public. Advertising would aid the consumers in the process of selecting an appropriate lawyer and it would also prevent monopolizing of market and provide small sized firms a platform to disseminate about their services.

It has its disadvantages too which can be seen as 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.

RECOMMENDATIONS

In my opinion, advertising per se ought not to be barred as it promotes legal awareness and gives consumers an opportunity to evaluate the competence of legal professional.

The BCI should lay down specific rules as to the subject matter and kind of advertising that may be permitted. BCI should permit other modes of advertising such as in newspaper etc. with additional information which are still debarred by it and should properly monitored those advertisements by legal experts and those found in contravention of the legal advertising rules should be liable for penal consequences also.

[1] http://www.asialawportal.com/india-to-lift-restictions-on-law-firm-websites/

[2] Id.

[3] Shivam Gomber, Right To Advertise For Lawyers, UDGAM VIGYATI Vol. 3 1 (2016)

[4] Id. at  7

[5] Section 49(1), Advocates Act, 1961

[6] Resolution No. 50/2008 dated 24th March, 2008

[7] Rule 36, Section IV, Chapter II, Part VI, Bar Council Of India Rules, 2008

[8] Bar Council Of Maharashtra v. M.V. Dabholkar, 1976 AIR 242

[9] CD Sekkizhar v. Secretary Bar Council, AIR 1967 Mad. 35

[10] Bolocon, supra note 6, at 22

[11] Model Rules Of Professional Conduct, 1969

[12] 433 U.S. 350

Tags

Leave a Reply

Your email address will not be published. Required fields are marked *

Close
Close