This article is written by Nidhi Bajaj, a final year student of BA.LL.B in Guru Nanak Dev University, Punjab. This article aims to analyse the provisions relating to the bar against soliciting work and advertising in India in the backdrop of the right to commercial speech and the comparative jurisprudence in other countries.
Table of Contents
Advocacy is a noble and honorable profession. It is expected that an advocate should not indulge in such acts or conduct which might lessen the faith of the people in the legal profession or malign its integrity. It is for this reason that advertising of legal services and soliciting of work by advocates is prohibited by the Bar Council of India and State Bar Councils.
In this article, I will be dealing with the provisions that bar legal advertising and soliciting of work, the basis for such provision, the consequences of its violation, the judicial approach, and the position in other countries with regard to legal advertising and soliciting of work.
Legal advertising and solicitation of work : meaning
Legal advertising means advertising of legal services provided by a lawyer or a law firm in order to attract potential clients. Such advertising may be done through various mediums including print, television and online advertising, etc.
To ‘solicit’ simply means to ask for in a persuasive manner or approach. Solicitation refers to any communication initiated by or on behalf of a lawyer directed towards a specific person with the knowledge that such person is in need of legal services in a particular matter offering to provide legal services for that matter.
Basis for bar against legal advertising and solicitation of work
Legal advertising is prohibited for the simple reason that law is not a trade. It is understood that advertising by lawyers can manipulate or mislead people and lower the dignity of the legal profession. The ban against advertising and solicitation of work in India owes its origin to British Law. The Solicitors Act of 1933 empowered the Law Society Council to promulgate rules regulating the professional practice, conduct, and discipline of solicitors. Rule 1 of the Solicitor’s Practice Rules 1936 provided for a comprehensive ban on solicitor advertising prohibiting three types of behavior: touting, advertising, and unfairly attracting business.
Reasons behind prohibition of legal advertising and solicitation of work
- To avoid commercialization of the legal profession.
- To uphold the integrity of the legal profession and maintain quality services.
- The misleading nature of advertisements may shake the faith of people in the legal profession.
- Allowing advertising will lead to unhealthy competition between lawyers who might resort to unfair practices to gain more clients thereby focussing less on the quality of services provided.
Provisions regarding bar against solicitation and advertising
Section 49 of the Advocates Act 1961
Section 49(1)(c) of the Advocates Act 1961 provides for the power of the Bar Council of India to make rules prescribing the standards of professional conduct and etiquette to be observed by advocates.
Chapter II of Part VI of the Bar Council of India Rules
The Bar Council of India, while exercising the rulemaking power conferred upon it by Section 49(1)(c) of the Advocates Act 1961, has framed several rules under Chapter II of Part VI of the BCI Rules laying down the ‘Standards of Professional Conduct and Etiquette’.
Rule 36 as provided in Section IV (Chapter II of Part VI of BCI Rules) provides for the bar against advertising and soliciting work:
- It provides that an advocate shall not solicit work or advertise by direct or indirect means. Such solicitation and advertisement include circulars, advertisements, touts, personal communications, or interviews not warranted by personal relations.
- Even furnishing newspaper comments or producing photographs to be published in connection with cases in which the advocate was engaged or concerned is also prohibited.
- The sign-board or name-plate of an advocate should be of a reasonable size.
- The sign-board or name-plate of an advocate or his stationery should not indicate that:
- he is or has been a President/Member of a Bar Council or any Association;
- he has been associated with any person or organization or any particular matter;
- he specializes in any type of work;
- he has been a judge or an Advocate General.
Furnishing of certain information allowed : 2008 Amendment
Rule 36 of Chapter II of Part VI of Bar Council Rules was amended by the Bar Council of India in 2008 to provide for some relaxation. It allowed the furnishing of website information by the advocates under intimation to and as approved by the Bar Council of India. However, only the particulars as approved by the BCI are to be provided. Any additional input would be deemed as a violation of Rule 36 and the advocate would be liable to punishment for misconduct under Section 35 of the Advocates Act 1961.
The Schedule attached to Rule 36 provides for furnishing of the following particulars:
- Name, address, telephone numbers, e-mail id;
- Enrolment number, date of enrolment;
- Name of state bar council where originally enrolled;
- Name of state bar council on whose roll name stands currently;
- Name of the bar association of which the advocate is a member;
- Professional and academic qualifications;
- Areas of practice.
Hence, the Amendment allowed the furnishing of certain information by advocates on the internet.
Punishment : Section 35 of the Advocates Act, 1961
An advocate who commits a breach of Rule 36 providing for the bar against advertising and solicitation of work is liable to be proceeded against for professional misconduct.
Section 35(1) of the Advocates Act, 1961 provides for the power of the State Bar Council to punish an advocate for ‘professional or other misconduct’. It provides that, where on receipt of a complaint or otherwise, the State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.
Tata Press Limited v. Mahanagar Telephone-Nigam Limited & Ors (1995)
In this case, the Hon’ble Supreme Court held that ‘Commercial Speech’ is a part of Freedom of Expression as enshrined in Article 19(1)(a) of the Constitution. Hence, the Supreme Court recognised advertising as a part of the right to freedom of speech.
V.B. Joshi v. Union of India (2008)
In this case, the petitioner had challenged Rule 36 of BCI rules (Part VI, Chapter II). The Supreme Court directed an amendment to be made in Rule 36 to allow the advocates to advertise their services on the internet. The amendment was made in 2008 allowing advocates to advertise certain information on their websites including name, address, telephone numbers and email id, enrolment number, date of enrolment, name of State Bar Council where originally enrolled, name of the State Bar Council on whose roll name stands currently and name of the Bar Association of which the advocate is a member, professional qualifications and academic qualifications and areas of practice.
Bar Council of Maharashtra v. M. V. Dabholkar (1975)
In this case, the Supreme Court ruled that “Law is no trade, briefs no merchandise and so the leaven of commercial competition or procurement should not vulgarise the legal profession”.
Rajendra V. Pai v. Alex Fernandes & Ors (2002)
In this case, a complaint was filed against the appellant advocate that he was not engaged as an advocate by the complainant but he solicited the work directly and through bogus representation to the complainant and many others who applied for enhanced compensation under Section 28A of the Land Acquisition Act 1894. The advocate was held guilty of professional misconduct and the Bar Council ordered the removal of his name from the state roll. The Supreme Court, in appeal, while maintaining that the advocate is guilty of professional misconduct, modified the punishment given to him and ordered a suspension of his licence for a period of seven years.
Position in other countries
In the US, till 1977 the provisions relating to the bar on advertising and soliciting work were more or less similar to that of India. Canon 27 of the American Bar Association: Canons of Ethics (1908) provided that the solicitation of business by way of advertisements etc., was unprofessional. However, this position underwent a huge change following the case of Bates v. State Bar of Arizona (1977). In this case, the US Supreme Court upheld the lawyer’s right to advertise his services and held that the legal advertising is commercial speech protected under the First Amendment rights. It was also held that the First Amendment allows lawyers to advertise in a manner that does not mislead the general public.
In 1969, the ABA Model Code of Professional Responsibility was adopted by the American Bar Association. Later, in 1983 the ABA Model Rules of Professional Conduct were adopted which replaced the model code.
Rule 7.1 of the aforesaid Model rules deal with ‘Communications concerning a lawyer’s services’. It prohibits a lawyer from making any false or misleading communication about his services. Rule 7.2 contains specific rules relating to information about legal services. It allows the lawyer to advertise his services through any media, such as print and electronic media etc. Rule 7.3 dealing with ‘Solicitation of clients’ bars the solicitation of professional employment by the lawyer by live person to person contact when such contact is made with the motive of making pecuniary gain.
In the UK, advertising by lawyers was viewed as unprofessional till 1970. The bar on advertising of legal services was removed with the coming of the Monopolies and Mergers Commission in 1970 and the Office of Fair Trading in 1986.
Rule 2 of the Solicitors Practice Rules 1990 provided that the solicitors may publicize their practices. These rules were replaced by the Solicitors Code of Conduct 2007. Later, the Solicitors Regulation Authority(SRA) Handbook came into force in 2011 replacing the earlier Code of Conduct.
Presently, the SRA Standards and Regulations which came into force in November 2019 provide for the Code of Conduct for Solicitors. Rule 8.6-8.11 of the ‘SRA Code of Conduct for Solicitors, RELs and RFLs’ provides for ‘Client Information and Publicity’. It states that the publicity made by the solicitors in relation to their practice has to be accurate and not misleading. Making unsolicited approaches to members of the public to advertise legal services is prohibited, with the exception of former or current clients. Also, solicitors have to ensure that clients understand the regulatory protections available to them.
Whether legal advertising should be permitted ?
Advertising is considered to be the cornerstone of our economic system. The Supreme Court has recognized the right to advertise as a constitutional right in its various judgments. The right to commercial speech and advertisements is protected under the right to freedom of speech and expression under Article 19(1)(a) of the Constitution of India.
Advantages of legal advertising
- Legal advertising results in greater opportunities for lawyers, especially first-generation lawyers who are unable to get the much-needed exposure when they start out.
- Advertising will aid in bringing the new legal talent into the limelight which might otherwise get lost behind the names of big and established law firms and advocates.
- It is very important that the consumer of any product or service is able to exercise the right to choose. Such a right can be fully exercised only when accurate and complete information is provided to the consumer. Similarly, a consumer of legal services also has a right to know about the lawyer including his/her expertise in order to make an informed choice as to whether one should engage such a lawyer as a legal counsel.
- Advertising will increase the level of competition in the legal arena, thereby encouraging the lawyers to improve the quality of their services.
- Advertising will lead to the globalization of the legal profession which will enhance the number and quality of opportunities available to Indian lawyers.
- Advertising will provide a fair chance to all advocates to market their skills and prove their talent.
The way forward
In India, many advocates and law firms do engage in advertising their services indirectly, for instance by conducting seminars or sponsoring conferences or publishing awards, etc. After the amendment of 2008, the furnishing of certain information on the internet by advocates is allowed. LinkedIn has become the one-stop for all advocates that lets them expand their network and consequently bag more clients. The blogs and articles published on an advocate’s or firm’s website also help in publicizing. However, the rules are still very strict when it comes to advertising through other mediums. This discrimination between the modes or manner of advertising contradicts the very motive of regulating legal advertising in the first place. Instead of a complete ban on advertising or permitting advertising solely on websites, legal advertising should be permitted through all mediums and on all platforms. At the same time, effective guidelines and rules should be made to regulate and govern legal advertising across all mediums. Stringent penalties should be levied on the erring advocates who provide misleading information or dupe their clients by making false claims.
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