Tanay Akas, B.A. LLB. (H.), Central University of South Bihar
“The canons of ethics and propriety for the legal profession totally taboo conduct by way of soliciting, advertising, scrambling and other obnoxious practices”.
The above quote by “Justice Krishna Iyer” clearly describes the value, essence and nobility of legal profession with respect to marketing and advertisements. Legal advertising simply means legal professionals publicising the services provided by them through the court of law, implying the legitimate administrations provided by legal counsellors. India is such a country which is having approx. 1 million lawyers but still there is lack of information about the practising advocates and this is due to prohibition of advertisement by the advocates in the name of ‘dignity of profession’ or terming it as ‘noble profession’ tracing its roots from British common law. Bar Council of India, Sec 7(1) (b) Advocates Act, 1961 read with rules under Sec 49(1) (c), has framed Rules 36 of the Bar Council Act of India Rules under Sec IV (Duty to colleagues) of Chapter I (Standards of Professional conduct and Etiquette) of Part IV (Rules Governing Advocates) deals with these provisions.
According to Rule 36 An advocate shall not solicit work or advertise either directly or indirectly, whether by circulars, advertisement, touts, personal communications, interviews not warranted by personal relations, furnishing or inspiring newspapers comments or producing this photographs to be published in connections with cases in which he has been engaged or concerned. Also, his sign board or name plate must be of reasonable size and must not indicate that he is /has been president or member of Bar Council or of any association. This prohibition on legal advertising is based on its adverse effects on professionalism as commercialisation of the legal professional was believed to undermine the lawyers’ sense of dignity and self-worth. Other reasons for the prohibition include misleading nature of advertising would lead to unhealthy competition whereby legal professionals would resort to practise such as fee undercutting and focus less on the quality of the services provided by them , in addition to incurring advertisement expenditures.
Subsequently in 2008, the ban was relatively relaxed and legal professionals were permitted to organise websites, which specified only their contact information, area of specialisation and qualifications. Some may include progress of clients’ work through these sites. Other than these, advertisement by advocates are also popular through visiting cards, directory listings, seminars, felicitation ceremony, circular letter or election manifesto with name and profession printed on it. But still as legal profession is not been considered as any business, thus its promotion in a professional way is completely prohibited.
As every coin have two faces the prohibition over advertisement of lawyers are also have some positive as well as some negative impacts-
- As explained by Madras High Court in 1967, advertisements by lawyers is non tolerable and considered as reprehensible conduct because the standards which lawyers jealousy develop and set up for themselves are unbecoming to the honour, dignity, and position of the noble profession. Cases such as Government Pleader v. S.A Pleader, S.K. Naicker V. Authorised Officer, J.N.Gupta v. D.C.Singhaniya & J.K.Gupta etc. also keep promoting the facts that advocates must not advertise.
- Permitting advertisement would most likely be exploited by unscrupulous advocates and firms by furnishing dishonest information. Further, there is persistently a threat that the consumers would be swayed away by graphics or punch lines, leading to base their decisions, not on the grounds of the reputation and fair evaluation of the advocate, but on insubstantial grounds.
- Another demerit of permitting advertisements would be that instead of focusing on improving their skills and legal acumen, legal professionals would also have to focus on publicising themselves to play fair in the newly developed competition.
But there can be several merits of removing restrictions from the advertisement of advocates-
- Advertisement will mostly help the new advocates to be famous as big law firm uses several other things such as sponsoring seminars and conferences other than direct advertisement but smaller firms or new advocates can’t due to lack of resources.
- Today one can only rely on ‘friends’, ‘friend of friend’ or ‘word to mouth’ for ‘legal aid’ but there is a need of advertisement for everybody’s reach to a proper legal aid.
- Rule 36 keeps Indian Advocates behind from the global recognition as legal advertisement is permissible in several countries, making information of foreign legal professionals largely available.
- Legal advertisement will also lead to enhance awareness and education, also enhancing the access of internet to lawyers, their articles, research works which are barely available at a place these days.
There is a famous quote by “David Ogilvy” that ‘There is no need for advertisement to look like advertisement. If you make them look like editorial pages, you will attract about 50% more readers. This simply means advertisement is even going on by biggies whether on the name of seminars, conference, workshops or using disclaimers that the advertisement they are doing is not actually an advertisement. Thus, in a nutshell it can be said that legal professionalism in India needs change and this change can be achieved by providing lawyers the rights to advertise as Article 19 provides everyone the right to speech and expressions and this also covers the right to advertise and this is not violative of the constitutional restrictions. So, it’s time to bring change for a transparent and better legal system in India.