Professional Ethics & Accounting System

Vishnu .P

BCO150035

Response paper : I

INTRODUCTION
Rule 36 of the Bar Council of India Rules states that Indian Law firms and lawyers are not
allowed to advertise their practice in the market, both offline or online. Rule 36 of Bar Council
of India Rules states that an advocate in India cannot solicit work or advertise, either directly or
indirectly by circulars, advertisements, personal communications or interviews, or by furnishing
or inspiring newspaper comments or producing photographs to be published in connection with
their cases.

The signboard or name-plate of a lawyer must be of a reasonable size and must 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 organisation or that he has been a Judge or an Advocate General.

Lawyers are prohibited from doing anything that might influence prospective client. The
prohibition on advertising is based on the old British notion that law is a “noble profession”. It
can be argued that in the information age,1 the consumer of legal services is entitled to get
information about the lawyer or law firm like consumers of any other services and to utilize his
money efficiently. Irrespective of this prohibition, many big law firms find their way to advertise
which puts small firms in a disadvantageous position. Herein we will examine (i) the reasons
behind the prohibition on advertising by legal professionals (ii) the nature and extent of
prohibition (iii) the constitutional validity of the prohibition (iv) current scenario and the need to
reform.

Despite this prohibition, there are many ways in which a lawyer intending to advertise himself
does it cleverly, concealing the obviousness of his act at the same time. For instance, the issue of

1
Maya Goldstein Bolocan, Professional Legal Ethics: A Comparative Perspective, CEELI Concept Paper Series 18
(2002)
circular letters or election manifestos by an advocate with his name profession and address is an
indirect means of advertising, which is followed by a number of practicing advocates in the
Courts though illicitly.

ANALYSIS

Advertisements have an adverse effect on legal professionalism. This can lead to very real harm,
as a lack of professionalism can undermine a lawyer’s sense of dignity and self-worth. Other
reasons include the misleading nature of advertisement and the loss of quality in services. Justice
Krishna Iyer, in the case of Bar Council of Maharashtra v. M.V. Dadholkar, stated that “the
canon of ethics and propriety for the legal profession totally taboo conduct by way of soliciting,
advertising, scrambling and other obnoxious practices, subtle or clumsiness, for the betterment of
the legal business. The law is not a trade, briefs no merchandise and to the heaven of commercial
competition or procurement should not vulgarise the legal profession”. This perception about the
prohibition stems from the very fact that the legal profession is considered as a noble
profession.The prohibition was relaxed in the year 2008, when the Bar Council of India passed a
resolution to the effect that lawyers and the law firms were allowed to have their website with
their contact information, qualification, and the area of specialization, until then, there was a
blanket ban on the advertising.

The emerging legal service sector is equally beneficial to all consumers of legal services, without
discrimination. In the age of consumerism and competition law, consumers right to free and fair
competition is paramount and cannot be denied by any other consideration. Trade in legal
services focuses on benefits accruing to consumers from the legal service sector, particularly the
quality of service available with respect to particular fields.

Advertising laws are completely different in other nations. The market for advertising by lawyers
in the USA is well-developed, in which lawyers are free to advertise their speciality and cases
dealt with them.

Constitutional Validity of Rule 36

Constitution of India guarantees Freedom of speech and expression under Section 19(1)(a), the
only exceptions to this freedom are in the interest of Sovereignty, integrity, and security of the
state, friendly relation with the foreign states, public order, morality or in relation to contempt of
court, incitement of an offence and defamation.In the case of Tata Yellow Pasges v. MTNL the
Hon’ble Supreme Court held that the freedom of speech and expression extends to commercial
speech, i.e. advertising. Also, in the case of Dharamvir Singh v.Vinod Majahan it was held by
the Court that since legal profession involves business proposition, advertising comes within the
definition of commercial speech.
From the above analysis of article and cases, it can be concluded that Rule 36 of Bar Council of
India2 does not satisfy any of the conditions specified in the constitution. Further, it can be
argued that Rule 36 violates the freedom to carry on trade, profession or business enshrined
under Article 19(1)(g) of the Constitution of India. Article 19 (1) (g) confers each citizen with
the privilege to choose his own livelihood or to take up any exchange or calling, and this
privilege includes the right of benefitting everyone of the methods and assets including
advertising.Therefore the ban on legal advertising under Rule 36 is unconstitutional and
excessive in nature.

POSITION IN OTHER COUNTRIES

Asian countries such as Hong Kong, Singapore and Malaysia have been progressively relaxing
their regulations on legal advertising to adapt to global demands. For instance, Malaysia’s Legal
Profession (Publicity) Rules, passed in 2001 is a simple yet comprehensive code that regulates
advertisements in legal and non-legal directories, controls publication of journals, magazines,
brochures and newsletters by lawyers and interviews in electronic and print media, bars publicity
through clients and even includes a rule that regulates lawyers sending greeting cards on special
occasions.

Position in the United States:

The U.S and India were on equal terms till 1977. Canon 27 of the Professional Ethics of
American Bar Association(ABA) stated that it was unprofessional to solicit professional
employment by advertisements. The situation has now changed by the decision of US
Supreme Court in Bates v. State of Arizonain which advertising rights of the lawyer were
constitutionally protected under the First Amendment.

2
Rule 36, Section IV, Chapter II, Part VI, Bar Council of India Rules, 2008
In 1969, the ABA reclassified the canons and created the Model Code of Professional
Responsibility. In 1983, in an effort to further codify standards of legal conduct, the ABA
replaced the code with the Model Rules of Professional Conduct; Section 7of the Model Rules
deals specifically with lawyer advertising and solicitation. According to Section 7,
advertisements must be truthful and not deceptive or misleading. According to Rules, a lawyer
may advertise through written, recorded or electronic communication, including public media.

RECOMMENDATION
Other countries attempting to trade with India will need lawyers to understand our legal system.
To make their choice they just have websites or online directories with their names and areas of
specializations, they are not even blessed with access to information. The Bar Council of India
must bring about the change by bringing about the freedom to advertise by advocates but by
employing reasonable restrictions. 3Bar associations around the world have formed their own
code for the professional ethics to be maintained by the advocates.

Conclusion
Presently, various legal-tech platforms are sprouting in the legal domain which allows advocates
to list their qualification, expertise, experience etc., in order to provide a litigator with options to
choose from. The legal profession has relied on word-of-mouth for years now. A time has come
when Indian legal industry should embrace the change and indulge in the healthy marketing of
their brand. Nonetheless, the Legislature needs to draft certain guidelines for advertising the
legal practice to keep a check on malpractice.4 Similar to any other service, every litigant must
be provided with the platform where he can identify the most suitable counsel and be able to
obtain the best value for their money. The restrictions on the advertising in the legal profession
are good neither for the lawyers nor for the clients. It is the time that the concerned authorities
realize it soon and this archaic practice comes to end.

3
Shivam Gomber, Right to Advertise for Lawyers, 1 UDGAM VIGYATI Vol. (2016)
4
M. L. Sarin, Harpreet Giani, Prohibition of Advertisement in the Legal Services Sector, INDIAN LAW JOURNAL,
http://indialawjournal.com/volume1/issue_1/legal_articles_sarin.html