This article is written by Harshit Tyagi, a BA LLB student of Symbiosis Law School, Nagpur.
Table of Contents
Abstract
“Good advertising does not just circulate information. It penetrates the public mind with desires and belief.” – Leo Burnett
Advertisement is something which we can see nowadays in every field everywhere from movie theatres to stadiums to small merchant shops to even state transport which includes trains, buses, metro everywhere wherever we see advertisement and marketing is everywhere. In fact it a useful medium to spread knowledge and awareness about something which may in turn benefit the larger proportions of the society. The initiatives such as Jago Grahak Jago, let the buyer beware a popular term used in Law of Torts also called as Caveat Emptor also defines that the buyer can’t exempt from the liability or responsibility of not checking up the product before purchasing it and he can’t say after checking up the product and buying that the seller has been fraudulently selling the product.
The article discusses the very important topic or the ethical dilemma faced by today’s lawyers or advocates being disbarred from soliciting in any form in India. The word ethical dilemma we used is because in the professionalism the work ethics play a major role in defining the boundaries of the particular profession. In the article we discussed about what does ethics say and mean in the context of professionalism further we have tried looking into what does self- advertisement means and what is the stand of the Bar Council of India on self-advertisement by advocates or lawyers and why the advocates are disbarred from self-advertisement in India.
Introduction
Marketing is something which is everywhere around the world. In 2019 only the revenue generated from advertisement sector only amounted to 594 million US dollars. The United States only invested around 243 billion US dollars in advertising in 2019. Talking about India the total spending in advertising sector only amounted to Rs 82,795 crore in 2019 and it is ever increasing. Advertising is something which not only attracts consumers or clients to the sellers or service providers but also it plays a great role in making aware the mere population of the country and protect consumers from fraudulent practices of the sellers. India has its constitution adopted from Britain and when we talk about United Kingdom; the advertisement by lawyers is legal subjected to some terms and conditions.
The article is trying to analyze the dilemma between ethics and advertisement in India. Advocates are barred from advertising themselves in India and in this paper we tried to discuss the test of ethicalness with the professionalism and if advertisement is really needed by the lawyers of the country.
CHAPTER 1: ETHICS IN THE LEGAL WORLD
Various professional ethics for lawyers in India
The basic ideas behind evolvement of ethics come from the principles of Dharma and Swadharma from the early manuscripts of the Indian literature or politics. These ideas were the main test of ethical thinking in the past; an individual had to follow the dharma in accordance with the society dharma is nothing but a set of principles determing a person’s societal standing and his respect in the society. Swadharma has been described as one’s lawful behavior based on one’s capacity; one’s own radical thinking and act accordingly. In Swadharma, a person was expected to act lawfully or according to his own radical thinking to act lawfully in the society. It essentializes an understanding of one’s own talents, abilities, and weaknesses.
The Bhagavad Gita emphasizes the concept of Swadharma. Ethics, morals, righteousness, and goodness have all been used to derive on to the word dharma. The law of ethics is known as Dharma. It controls a human’s mental, physical and emotional well-being and a man was expected to live in accordance with the dharma or the righteous principles. Gradually the concept of Dharma expanded and it converted itself into ethics. Ethics is word used in the context of moral reasoning of a person. It revolves around the phrase “How and Why” how a person should act and what is the reasoning behind such an act of his.
It is the fear of sanctions which decide an individual’s actions in a society. As a result, the strict principles of morality and ethics were followed by contemporary laws. the dilemma is this that who shall be deciding the ethical norms of a particular act? The norm of ethics is a necessary component of every professional. Ethics leads to individual situations that involve deciding what is right and what is wrong based on the conscience of an individual. Professional ethics is concerned with the standards and moral conduct that govern the profession and its members.
More specifically, professional ethics examines issues, problems, and the social responsibility of the profession itself and individual practitioners in the light of philosophical and, in some contexts, religious principles among which are duty and obligation. Professional ethics is like laws of profession where every person in a particular profession is expected to follow the norms set by professional ethics. The most basic examples of professional are such as a doctor is not expected to act negligently while dealing with a patient also, he is not expected to lie about a patient’s illness to his loved ones or him. There is also a term legal ethics. Looking at the definition it says Legal ethics is the minimum standards of appropriate conduct within the legal profession. It is the behavioral norms and morals which govern judges and lawyers. It involves duties that the members owe one another, their clients, and the courts.
Respect of client confidences, candor toward the tribunal, truthfulness in statements to others, and professional independence are some of the defining features of legal ethics. Legal ethics can also refer to the study or observance of those duties or the written regulations governing those duties.
Legal ethics is also related to the concept of professional ethics, according to legal ethics advocates or attorneys are expected to act in the manner which is prescribed by the particular state’s bar. Legal profession is a profession of fiduciary relationship between the client and an advocate similar to doctor and patient relationship. The profession’s meaning can be summed up in three words: organization of its members for the execution of their functions, for the profession’s reputation, such academic and ethical principles must be maintained.
The work of professional ethics in a profession is to uphold the integrity and for the proper working of the profession so that it confers to the norms of the society. If professional ethics has not been there, there would have been complete state of chaos in the society and no restrictions on any profession would have been there on a person pursuing a profession. For example, when we look at the profession of doctors if professional ethics would not have been present then doctors would have acted according to their whims and fancies which would in turn harm the patient or his health. The value of ethics in the legal profession is to uphold the profession’s honor and integrity, as well as friendly relationships with the public.
Considering the Indian Bar Council Code, it is an epitome of a formalized collection of professional ethics for those considering to pursue their career as a lawyer and a lawyer is expected to follow the code of conduct such as a Lawyers Duty towards Court. When we look at the professional ethics for an advocate, we see that lawyers or attorneys are expected to work in accordance with law as they themselves are the saviors of law. An advocate is expected to follow the due process of law and to follow the guidelines issued by the particular bar of any state.
Another example is that attorneys are expected to follow the guidelines of the court such as not to interrupt the judge or not to use any word which might harm the reputation of the hon’ble judge. Common professional ethics for attorneys include keeping their phone on silent and not to create any disturbance in between court proceedings. An advocate’s duty towards his client which includes duties such as when admitted, they are unable to withdraw from acts or engagements for a fine reason. Before the start of proceedings or trials, he must make full disclosure about his relationship with the parties or any potential conflict of interests.
As we know that a relation between a client and an advocate is called as fiduciary relationship or relationship of trust in which client gives fees and an advocate is expected to help the client in the process of justice serving. The professional ethics for advocates says that an advocate is expected to give his/her one hundred percent to provide justice to the needy client and not to keep him aware on the progress in his case. To keep all legitimate promises made to the opposing party. These are some of the professional ethics in the legal world which an advocate ought to follow or his actions would be considered punishable or unprofessional. It is important for any profession to follow some norms or ethics so as keep it functioning according to the changing morals of the society. As a result, Professional Ethics is taught as an important topic in every law school curriculum that young legal brains are aware of the essentials of such a career by following the principles and ethics.
What do we understand by self advertisement by lawyers in India?
Law is a traditional discipline aiming at providing public services. Ever since the initial days of this profession, it has been considered as a defender and protector of the law. The primary goal of such a profession’s activities is to benefit society, and by this due process the advocates earn money through fees paid by the clients. Self-advertisement as the term itself says it means advertising for self for the promotion of self. Self-advertisement for lawyers is banned in India since the British rule. The Bar Council of India is the governing authority of overseeing and controlling the advancement and regulation of legal services in India, as well as the operations of advocates of pan India and covers subjects and law firms present in the country. Advocates in India are restricted or barred from advertising themselves in any manner neither offline nor online.
As per the Advocates act 1961 Rule number 36 which was formulated in 2008 it mentions “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”.
As the rule clearly mentions that advocates or layers are completely disbarred from advertising in any which ways their practice. Every year thousands of lawyers or advocates every step into the profession of law by taking a license from Bar Council of India despite of such a huge competition among the advocates, they are not allowed to advertise themselves. Lawyers are not allowed to do something that might fade away a prudent client’s decision and this rule particularly states that the legal profession is distinct from all others, and that anyone soliciting himself or for attracting employment in the legal profession is barred by this provision.
Advocates or law firms that continue advertising by circulating letters or speeches organize moot court competitions, offer certificate courses, or use by publishing visiting cards, for example, may face sanctions according to the Bar Council of India. Often advocates send their clerks in the courts or the premises of the court to solicit their work or print templates and appoint a person to share them with the people around the premises of a particular court’s jurisdiction, it is all prohibited by the Bar Council of India and involving in any of these practices will attract sanctions or consequences as per the Bar Council of India.
Why is self-advertising prohibited for Indian Advocates?
The rudimentary concept of rule number 36 is that the legal profession is an honorable one that should not be made un pure or interrupted by the advertising because often we see advertisements misleading and hence illusionary concept which may harm the prestige of such an honorable profession. Justice Krishna Iyer once said that the legal professions and advertisements have no connection and a profession like law does not permit advertisement to maintain its prestige. A plausible contention is that advertisement safeguards the interests of the country’s illiteracy rates and prevents any undue events that could happen in a profession. Self- Advertisement by lawyers is conferred upon in Indian courts. In Re: Mr. A An Advocate vs Unknown, the Supreme Court ruled that an advocate who solicits briefs is unworthy of the practice. In certain cases, the judiciary has upheld the legal profession’s nobility and prestige, stating that it is not merchantable and that commercialization of the profession is forbidden.
In the landmark judgment of Bar council of India v. A.K. Balaji and Ors the Hon’ble court held that soliciting directly or indirectly is a serious breach of misconduct by an advocate. In Supreme court case of Bar council of Maharashtra vs. M.V. Dhabolkar and Ors, Justice Krishna Iyer said that Law is not a trade, briefs no merchandise and to the heaven of commercial competition or procurement should not vulgarize the legal profession. In the case of C.D. Sekkizhar v. Secretary, Bar Council, Madras & Others it was held that advocacy commercials were forbidden to discourage feelings of envy and were unworthy of the noble profession, according to the study. In RN Sharma Advocate Vs State of Haryana the court determined that the legal profession is a respected endeavor, not a trade or a corporation, and that lawyers, as court officers, should aim to achieve justice for their clients within constitutionally prescribed limits.
Granting advocates permission to solicit is generally looked as unjustified on the grounds that it would not only add to possible public misconceptions, but it would also “harm the reputation” of an honorable profession because when someone advertise the whole aim is to promote himself with the claims or maybe sometimes false claims of assisting in providing justice or illusionary results, considering a vast number of India’s uneducated population, making them vulnerable to false advertising hence, in an honorable profession like lawyer it is considered as an unethical practice or undignified practice.
Further, it is also believed that law firms or lawyers or advocates for that matter should not indulge in any of the advertisement practices and if they resort to advertisement of themselves that would not only make the profession less honorable but also it may deter the interests of potential clients and hence, will make them more vulnerable to the victim of false practices. In the judgment of a three-judge bench of the Supreme Court in the case of V.B. Joshi v. Union of India, Rule 36 was eventually revised by a Resolution passed by the BCI in 2008. Advocates were finally allowed to post information on websites such as their names, Post Qualification Experience, and practice areas in order to “promote lawyers and expose subtle elements of their profession” as a result of the amendment.
The conflict of class also plays a major role in determining the advertisement regulations in India as a vast majority of lawyers or advocates are either earning less or not that financially strong especially when we talk about a fresher law graduate’s earnings, they are minimal because of the lack of experience it’s lack of reach or lack of enough opportunities while at the same time the bigger law firms which are already established and gained a firm grip over the legal market. If advocates and law firms are being allowed to solicit their work then the gap between the big law firms and hustling advocates will increase that will lead to inconsistencies.
CHAPTER 2: NEED FOR ADVERTISING FOR ADVOCATES
Fair opportunity for clients and advocates
India is famous for its outstanding cases in the courts and the number of cases which are pending in the courts are increasing year by year and the courts are overburdened done by the number of cases which are filed each year each month and each day having a detrimental effect on the country’s already overburdened judicial system. India now has almost 4 crore pending cases spanning the Supreme Court, various high courts and the numerous district and subordinate courts, according to written replies submitted by the Ministry of Law and Justice in Parliament Due to lack of awareness, clients face difficulty in making an informed and prudent decision from a competitive market because knowledge about the particular types of service is unavailable to them. Furthermore, restricting the firm’s potential capacity to earn more through guiding the prospective clients will limit the firm’s reach. While the clients or persons willing to file a suit or who want justice are vulnerable to it due to the lack of knowledge particularly lack of knowledgeable lawyers of specific fields, often people are confused where to go to whom they visit.
Clients in India are restricted to domestic legal services providers they don’t know about the international market and hence restricting the very exposure of clients to the justice. As a result, it is extremely harmful because they are unable to use or explore any other person due to a lack of options. Many a time people or clients are confused with the areas of practice of law, they feel it confusing which case where to go or of which area of law that particular case is related with such as criminal law, civil law, family law.
This ultimately results in the exploitation of clients and delaying in the justice. These are some of the problems which are faced by the consumers or clients in the country at the same time lawyers too face different types of problems because of lack of reach. There are almost 1.3 million lawyers in the country right now and the number clearly indicates the rampant amount of competition which is going on in the legal market. Advocates face many difficulties because of lack of reach they can’t get enough clients and hence can’t earn enough. By promoting themselves lawyers could have gained more knowledge and thus increasing the revenue generation of the firm. And thus, if advertisement was permissible, it could have helped clients to approach better lawyers to seek justice and in the same way it could have helped lawyers too in gaining more reach and thus increasing zeal and a fair chance of opportunity among the both.
Globalization of the legal profession
It is a globalization age, and in the field of law, advanced globalization has had a significant impact on the services rendered by an attorney. It could have been much beneficial for an advocate to get an international exposure via connecting through advertisement. With increased support and engagement of nations, as well as greater access to domestic markets, globalization ushered in a revolution in foreign exchange of ideas. We can already see various developments in the field of law by some of the international exposure which we have gained over the past few years. One can easily understand the concept of international exposure in legal market when we talk about India we see the evolvement of intellectual property law, competition law, corporate law, corporate taxes law and many more provisions which have been introduced in the country with the ousting of international exposure. Earlier these provisions were unknown. It is undebatable that advertisement not only helps the budding advocates to grow faster but also would have given them an international exposure to various legal markets of the globe. Although, legal firms are embracing globalization by integrating with larger competitors, making acquisitions, and forming strategic partnerships.
The online boom, legal process transformation, and emerging technology solutions are all behind this economic uptick. As law firms seek to grow, the economic process has the potential to reshape the legal industry’s landscape in the coming years. Opening of the doors of advertisement for Indian firms and advocates will make the country’s economic position good and would also donate in the reputation of the country. As Despite of having 1.2 million lawyers, Lloyd Pearson, a London-based Litigation Directories Consultant, said that due to such advertisement constraints, the audience sees very little about many Indian firms or lawyers having said this clearly indicates as to where India’s legal system is lacking to pick up pace with the globe. Advertising law firms would create an international market and thus would result in increasing competition in the Indian economy and also would result in increasing reach of the lawyers along with foreign knowledge of law.
Impact on revenue generation
When we look at the statistics, India was ranked as the third largest advertisement market in the world in terms of media spending, with over 700 billion Indian rupees. The most important aspect for an advocate or a lawyer to build his/her contacts with the world to grow and excel in the law world but because of this restriction the advocates in India can’t make their rapport with not only international market but even with the country’s lawyers too. This is a table below showing the proportion spent by the law firms of different countries in advertisement.
If India is to be the 3rd largest market of advertisementxx then think of the revenue generation in the legal sector of India if it was permissible. Increasing revenues not only benefit to law firms or lawyers but also to the justice serving system as well, as its quality would be improved and thus it would result in increasing of morale of law firms and lawyers.
Speedy redress of dispute
After looking at the pending cases in the country it is imperative for us to look at the constitutional provisions. The article 21 of the constitution of India says that protection of life and personal liberty no person shall be deprived of his life or personal liberty except according to procedure established by law.
The Supreme Court of India has proclaimed the right to a speedy trial to be a part of the right to life or personal liberty. This radical understanding of article 21 is intended to alleviate the pain and suffering, cost, and burden that a person facing criminal charges must endure, which, when combined with delay, can hinder the defendant’s ability to defend himself effectively. As a result, the Supreme Court ruled that under Article 21, the right to a speedy trial is a fair practice. People in India used to resolve disputes through mediation before the establishment of courts.
Mediation was performed by an individual with a higher standing and respect among the other members of the community, and this mediation was referred to as “Panchayats” in the past. These were led by a village headman, also known as “sarpanch,” who was deemed to be an impartial person and were aided by other people of the same character. The panchayat’s verdict was binding on everyone, and the panchayat’s core conviction was that it was in the best interests of all parties in a conflict to have a smooth justice process. To relieve the stress of the courts it is an essential thing to introduce different methods of speedy trials despite of some methods already existing to ensure that everybody can get justice on time without knocking the doors of different pillars of justice. Speedy trial can be achieved through proper advertisement and through the contribution of all judicial experts throughout the country.
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