Legal Advertising in India

THE CURRENT POSITION OF LEGAL ADVERTISING IN INDIA AND WHAT IT IS LEADING TO

An Advocate practicing in any of the Indian high courts therefore, can’t  publicize about his or her work by any mean through  circulars, advertisements, touts, personal communication or interviews not warranted by personal relations. Even any form of indirect advertisement is prohibited such as issuing circulars or election manifestos or even assigning agents in order to publicize his work by recommending his work or acting as a middleman. 

The signboard or nameplate displayed by an advocate should be of a reasonable size as laid by the Bar Council Rules. The nameplate used by him shouldn’t display his membership of Bar Council or any association or whether he has held any position as a Judge or about his specialization of work.

Now, this can be held as a controversial issue as letterheads of various lawyers in this country mentioning their areas of expertise such as Tax Consultants, or whether they are exercising in civil or criminal matters and also mentioning whether they have held positions of a justice earlier which they mention as ex justice, an ex Advocate General or even they are a senior advocate or not. Maybe some Public Interest Litigation by some lawyer will bring forward light into this matter, also in case a lawyer doesn’t mention his area of expertise the client might go up to a tax consultant with a criminal case. Also, lawyers may be hesitant themselves to bring forward light upon this issue as they might be doing the same themselves as not mentioning about their areas of expertise might lead to extreme difficulty to practice. Rule 36 does not even permit conclusions. 


Rule 36 also does not permit business cards, directory listings or seminar ceremonies and any felicitations though we often see lawyers distributing business cards to their clients or colleagues. They also often circular letters or election manifestos with their name, address and court where they practice printed on it, or any NGO which they support or offer free service to attract clients for "publicity interest litigation." Legal Aid Clinics also provide contact details of lawyers to the consumers whom they can approach. These practices can be held as highly questionable and strictly held punishable by law. A lawyer’s license to practice can even be cancelled even if he informs a person that he is a lawyer by profession and that person refers somebody about him as in that case he will held liable with the intention to advertise of his profession.

However, this whole issue can be interpreted in an entirely different manner by each and every person.

The conception of seeing law as a noble profession dates back centuries long. There is the general notion and habit of seeing it as a noble profession rather than a trade or any kind of business in India as even renowned justice Krishna Iyer have observed in his decision that the ethics of this profession gets tabooed through the practice of advertising or soliciting. Often it is been held by various courts in the country that the quality of the lawyer's work is enough for him to get work and clients will be the target of fancy media promotions and will end up going to the lawyer who promotes himself extensively rather than any lawyer who is more qualified or experienced but can’t afford such advertisements.

This Rule 36 has often been challenged on the grounds of constitutional validity as the article 14 of the Indian Constitution guarantees Right to Freedom of Speech and Expression and advertising can often be seen as a right to speech, however, in the case of Hamdard Dawakhana v. Union of India40. The court held,

“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. 19 (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.”

The only way the ban on advertising by advocates in India can be held unconstitutional is under Article19 (1) (g), every person is guaranteed freedom to carry on Trade, Profession or Business. The particular article also lays down   of the Constitution of India confers every citizen with the right to choose his own employment as to take up any trade profession of his choice. And it can be said that it is implied under this act that advertising is necessary for effectively running any trade as long it doesn’t go against the public interest. However, advertisements do go against public interest if false, misleading or obscene informations are popularized through them .As long as a information provides correct information regarding an advocate’s areas of expertise, experience etc, it makes no sense why any kind of advertising should be totally banned regarding legal profession in India whatsoever.

The current position in India is such that even a lawyer argues a case brilliantly; only newspapers can report about his argumentative skills but can’t mention his name openly. Lawyers are absolutely barred in any manner to engage any sort of practices that might influence the decision of a potential client to hire any other lawyer for his case. Ironically, in this country, any customer going to buy a television set has more information about options available n the market than any advocate offering service regarding specialized service. Even no agency can officially provide the list of names of professional advocates or their areas of expertise, fees etc. No lawyer can even publish about his credentials or expertise while publishing a paper or essays for any website.

In India, therefore, there is no official network regulating the number of lawyers or their areas of expertise or their availability and it only works through the reference system of a client referring about one certain lawyer to another potential client. The legal profession in this country works more by oral referrals than by any standardized criterion for grading lawyers.

Law is still one of the most neglected professions in this country as still the meritorious or brighter students prefer going for an engineering, medical or management degree as they are more rewarding and fetches quicker incentives than a law degree as it has a longer duration compared to other streams(5 years) and also it is still one of the clan-dominated professions while only most of the advocate’s or judge’s son only going for it as their predecessor’s clients already have a trust bequeathed on the family name established and already a strong network of clientele have been built by his or her  family.

On the top of this, advertising in this country regarding practice is totally banned and therefore, young lawyers entering upon this profession with no so called family foothold can find themselves in extreme difficulties as they have no earlier experience about charging fees regarding cases and  no network regarding clientele .They are often found exploited by senior advocates who offer them stipends as per their own wish while making them doing really hard work which makes really difficult to survive for them.

The legal profession remains still one of the monopolies of the large firms with goodwill more than centuries and also at this moment, they themselves are not encouraging advertisement as it will lead to high competition with their regular and entrusted clients and also they don’t want or need to cater the masses or general public at large who can’t afford them and only target corporate giants. Advertising will provide as a network between the general public and young talented lawyers who are ready to offer their services at an affordable rate.

This provision is held by the Bar council as an advocate’s duty towards his colleagues as a weak or poor advocate can’t afford to advertise. If the Bar Council lays down not to advertise as per Rule 36 so as to an advocate’s duty towards his colleagues, therefore it should also lay down minimal fees to be paid to the junior advocates or a structured salary system so as junior advocates didn’t get exploited in this system and thereby providing vigor to the young advocates who enter this profession with lots of energy, dedication and passion but are soon found full of disgust and frustrated regarding the system. It is often argued that if advertising is allowed in India, then Poor but talented advocates will be met with injustice but suggestively, Bar council can provide them financial assistance in case they provide required proof about their disadvantaged economic condition which doesn’t let them to advertise. As advertising is not allowed in India regarding advocacy, a young, talented and more qualified lawyer can found himself in a more disadvantaged position than an elderly advocate only through the latter’s wider range of network.

 

Lawyers Advertisement in India

WHY ADVOCATES SHOULD BE ALLOWED TO ADVERTISE IN INDIA

Advocacy can claim itself to be one of the oldest professions of the world with its starting in Greece even before 204 BC in Greece and Rome and also one of the most distinguished as one of the most noble and respectable. However, the standing of it as a profession varies from country to country and also, the rules regarding professional ethics, codes of conduct and responsibility of an advocate towards his clients or colleagues are different as provided in different countries.

As Advocacy has been laid down as an noble profession worldwide, therefore in earlier days, lawyers were prohibited from taking fees and governed under certain laws in ancient Rome which was  later repealed and they even has to take an oath in earlier days before practicing law or entering upon a court and thus, this concept of terming advocacy as a profession noble in nature dates back really long and therefore, one of the essential elements behind barring lawyers to advertise in not only India, but in various countries as it was thought this will commercialize and vulgarize this noble Profession. However in the current age, these excuses can rarely be sustained as the consumer of legal services, like the consumer of any other services is entitled to look for and obtain the best value for his money which is ensured through effective communication gained through advertisement only. The supposed client should be able to find n advocate whose fees he can afford. Some sort of track record or competence of the lawyer in question has to be obtained in order to be trusted by the client.

Thus, Indian Advocates are governed of their professional behavior by the Advocate’s Act,1961  which was formed by the All India Bar Committee,1953 which laid down the Bar Council Of India Rules,1952.As per mentioned in the  Section 7(1)(b)15 of the Advocates Act read with its powers to make rules under Section 49(1)(c)16 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 clearly lays down:

“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 organization or with any particular cause or matter or that he specializes in any particular type of worker or that he has been a Judge or an Advocate General.’’