“Advertising in the legal industry: Acceptable or not?”
Advertising has become a critical instrument for publicising a firm, its products, and its services. Every business tries to have to ball in their court and thrives on getting a top rank and giving fierce competition. It is a strategy that helps customers and the general public become familiar with products and take advantage of various services.
Professionals in practically every industry are devising novel brand awareness methods to expand their firms and advertise their services to the general public. However, in India, advertising is prohibited in many professions. Likewise, lawyers and law firms are not permitted to engage in advertising activities to market their services in the legal profession.
Advertising in the legal profession is illegal in India. Even if a lawyer successfully fights a matter in the Court of Law, the media may cover the storey, but mentioning the lawyer’s name in the news is highly discouraged. As Lloyd Pearson, a London-based Legal Directories Consultant, points out, India possesses the majority of the world’s lawyers, but we know very little about Indian law firms; everyone would benefit from knowing more about the Indian legal industry.
The Legal Profession’s Advertising
In India, the legal profession gets regarded as one of the most honourable and well-respected. Lawyers must be charitable and work for the cause of social upheaval, assist in delivering justice to victims and provide pro bono services to the impoverished.
Commercialising your business or services through advertising is considered unethical in the legal profession. It is claimed that if advertising is not outlawed, lawyers and law firms will be more concerned with establishing a brand and retaining a clientele than with providing efficient legal services.
Advertisements can be deceptive and lead to unhealthy competition, and their expenditure can lead to unjustified fee increases and a decline in the quality of legal services. It is deemed immoral and unprofessional.
The discrepancy in the legal fraternity is another crucial reason lawyers and law firms are not allowed to advertise in India. Large law firms have sufficient means and funds to promote their firms, and however, mid-tier and small law firms lack both resources and funds. Unfair trade practices and unhealthy competition emerges as a result of this.
Reason for not allowing lawyers to advertise their services
In India, it is illegal for lawyers to advertise their services. The Advocates Act, 1961, Section 49(c) provides general power of the Bar Council of India to create rules that allow the Bar Council of India to make Rules on ‘Advocates must adhere to a code of professional conduct and decorum.’
The Bar Council of India’s ‘Advocates need to follow professional conduct and etiquette standards’, states in Clause 36 of Section IV (‘Duty to Colleagues’):
An advocate should not solicit work or advertise in connection with cases in which he is involved, whether actively or passively through:
- Personal communications
- Interviews that are not sufficient to warrant any personal dealings
- Any encouraging newspaper comments
- Procure his photograph to be published
Also, the nameplate and signboard of an advocate should be of a reasonable size.
A lawyer must not state on his sign-board, name-plate, or stationery that:
- he is or has been President or a member of a Bar Council or an Association, or
- He has been affiliated with any individual or organisation, or with any specific cause or matter, or
- He excels in any field, or
- He has been a Judge or an Advocate-General.
The Advocates Act, 1961, Section 35, can penalise an advocate who violates these Rules. A state Bar Council has the following rights under this section (‘Punishment of advocates for misconduct’): dismiss the complaint, admonish the advocate, restrict the advocate from practising for a limited duration of time, and withdraw the advocate’s name from the statewide list of advocates.
The Advocates Act, 1961 and the Bar Council of India
Countries with common law, such as the United States and the United Kingdom, have progressed from the ancient law, which prohibited legal professionals from promoting. In contrast to these countries, Indian lawyers cannot advertise their services.
The Bar Council of India got established under section 4 of the Advocates Act. And, the BCI can prevent lawyers and companies from creating expert sites and distributing commercials on the internet under section 7 (1) (b) reference to section 49 (1) (c) of the act.
Rule 36 of the BCI regulations prohibits an advocate from advertising directly or indirectly. In its current form, Rule 36 of the BCI regulations prohibits a lawyer from promoting or advertising the services directly or indirectly.
However, BCI issued a resolution revising Rule 36 in 2008; advocates now get authorised to post information on their websites such as their name, address, phone numbers, email addresses, professional and academic qualifications, enrollment information, and field of practice. Legal professionals who supply this information must also sign a declaration stating that their information is accurate.
BCI’s Rule 36 Constitutional Validity
Section 19(1)(a) of the Indian Constitution guarantees freedom of speech and expression; the only exceptions are in the interests of the state’s sovereignty, integrity, and security, friendly relations with foreign states, public order, morality, or concerning contempt of court, incitement to commit an offence and defamation.
The Bar Council of India’s Rule 36 does not meet any constitutional requirements. Rule 36 may also get considered to violate Article 19(1)(g) of the Indian Constitution, which guarantees the right to engage in trade, profession, or business.
Article 19 (1) (g) grants each citizen the right to choose his means of livelihood or to engage in any transaction or calling. This right includes benefiting from all techniques and assets, including advertising. As a result, Rule 36’s prohibition on authorised advertising is unconstitutional and excessive.
Perspective from Sociological Jurisprudence
Legal advertising easily gets linked to a sociological viewpoint. In the essay “Why the Haves Come Out Ahead,” Professor Marc Galanter claims that social inequities lead to legal inequalities. In terms of litigation, he identified two categories of people in society: one-shot players and repeat players. The former only goes to court on rare occasions, but the latter is involved in the same case. Repeat players have well-versed legal counsel in legal precedents and courts, but one-shot players do not have this benefit.
If a lawyer can market his legal profession through the media, one-shot gamers will have a higher chance of hiring the best counsel and getting the most out of their money. The legal advertisement will ensure that one-shot gamers and repeat gamblers get treated equally. One-shot gamers will have no trouble locating attorneys who are well-versed in the legal field.
Under the disguise of the nobility of the profession, Indian lawyers are denied the right to promote and advertise their profession. It is important to remember that advertising is not free; it raises legal awareness and allows litigants to assess the potential of their attorneys.
In collaboration with the legal community in India, the Bar Council realised that the legal system is not solely about attorneys. Instead, it is that “honourable occupation” that meets the demands of the general public. Like any other customer, every litigant should have access to a platform that allows him to choose the greatest legal counsel and get the most value for his money.
In this age of globalisation, where advertisements and promotions serve as weapons for professionals, they also serve as a shield for service consumers. Advertising limitations in the legal industry benefit neither the practitioners nor the clients.