Monday, February 4, 2013

Provision of Legal Advertising


A STATUTE WHICH IS VIOLATING THE WTO AND GATT PROVISIONS



Even the Indian Supreme Court in the case of Tata Press Ltd. v. Mahanagar Telephones Ltd has recognized commercial speech as being a part of the right to free speech and thereby highlighted the high importance of the right to advertise, which will be beneficial not only for the advertiser but also for  the consumer.
 
Ironically, India lay down its rules of prevention of advertising of advocate as per the rules of Bar Council as not to advertise by lawyers as per the  tradition in British law which itself allowed it’s attorneys to advertise since late eighties as laid down by Rule 7 of the code of conduct laid down by the Solicitors Regulation Authority unless Rule 7.05 lays down that they have to take responsibility for publicity done by them and also they can’t authorize somebody else to advertize on behalf of them. Advertising shouldn’t be deprived of the integrity of the profession or shouldn’t harm the reputation of the profession.

 Therefore, leaflets and pamphlets and brochures relating to a certain advocate’s work and expertise are commonly noticed there. Also, as per the British Codes of Advertising and Sales Promotion, barristers may even include their own pictures, previous cases argued by them, information regarding their specialization or expertise or even their methods of charging etc. However, they are not allowed to solicit their work on basis of their experience, or through any fellow practitioner or any solicitor. France has somewhat a conservative approach towards legal advertising though it’s not a blanket ban like India and other European countries like Italy (through the Basil Decree on 2004), Spain or Germany have fully allowed legal advertising. India have opened up as a liberal economy way back in 1991 and as a process, have embraced globalization then why can’t it allow legal advertising in this highly competitive market when most of its lawyers and law firms want and are fully capable enough to compete in the international market for which they need advertising as a tool. Though some International directory can provide lawyers and law firms in India and their areas of specialization which can’t be used for domestic purposes by the clients.

Also, Asian countries like Malaysia, Hongkong and Singapore have started relaxing their rules on advertising by advocates as it was held totally illegal for a long period in these countries. However, Malaysia’s Legal Profession Publicity Rules (2001) led down that lawyers can advertise in legal and non legal directories various publications, journals etc and interviews in electronic and print media but not through clients. Lawyers are prohibited from advertising in Hong Kong on television, radio and cinema but are allowed in print, and also through various PR and branding progammes. In Singapore legal advertisements are allowed with limited restrictions.
 
Most countries in the world have already adopted a liberal policy towards legal advertising because used implemented properly, it can outweigh the negative effects of misleading and false advertisements and can meet the global demands imposed on the present Indian legal industry. It would also prove beneficial for the clients as they will have informed choices about the legal industry.

It has often argued that advertising can only be guided by the Consumer Protection Act and whether legal profession in India can be held as a trade or business. It will be relevant enough to quote here some of the landmark judgments regarding this issue. As in the case of Supreme Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa, the supreme court held that legal profession is covered under the definition of the term Industry under the Industrial Disputes Act, 1947 and also in the case of Srimathi vs. Union of India, the  Madras High Court held that section 3 of the Consumer protection Act says that the Consumer Redressal Forums can deal with advocates regarding their services as section 2(u)of the Consumer Protection Act clearly lays down that the term service can be held in as per the Consumer ProtectionAct,2002.Therefore, legal services can be held as one of the services under the Consumer Protection Act.

Also ,as India is part of the WTO and therefore, all WTO laws and regulations can be held bound upon it and WTO fully recognizes legal services as a part of the business services as it is listed  as a subsection of Business Services in WTO Services Sectoral Classification list. And as legal services can be held as a part of the business services therefore advertising should be allowed there in order to effectively market itself or a part of its marketing strategies. Also, GATT lays down12 services as a Business services which is further divided into 6 types of professional services. And legal services have been termed as one of these 6 professional services. As India is one of the founder signatories of the GATT, it should abide by its criteria and allow advertisement as one of the demands of the professional services. Also, as per commitments are concerned, India have only made them regarding engineering services and not regarding legal services unlike several countries of the world.


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