Regulation of Advertisement by Legal Professionals in India: Need for Change
Rule 36 to Section IV (Duty to Colleagues) of Chapter II (Standards of
Professional Conduct and Etiquette) of Part VI (Rules Governing Advocates) of
the BCI Rules, as was published in the Indian Gazette on 6 September 1975, in
its original form acted as a complete bar to advocated advertising their
The regulatory status quo as per the Rule 36 Bar Council of India Rules
prohibits an advocate is from soliciting work or advertising, either directly or
indirectly, whether by circulars, advertisements, touts, personal
communications, interviews not warranted by personal relations, furnishing
inspiring newspaper comments or production of his photographs to be published in
connection with cases in which he has been engaged or concerned.
In the case of R. N. Sharma, Advocate v. State of Haryana, it has been
held that an advocate is an officer of the Court, and the legal profession is
not a trade or a business; it is a noble profession and advocates have to strive
to secure justice for their clients within legally permissible limits.
Amendment of 2008: Restricted Advertising through WebsiteIn 2008, the Rule was amended, pursuant to the resolution passed by the BCI on
30th April 2008 before a three-member bench of the Apex Court. According to the
amended Rule, advocates are allowed to furnish information on their website
about their name, address, contact information, enrolment information of the
advocate, area of practice and professional and academic qualifications.
The BCI made the amendment to the Rule 36 post the case of Mr. V.B. Joshi on
restrictions on advertisement for services by Indian Advocates. Justice S H
Kapadia who was part of this three-member bench, suggested that the Advocates
may also add their area of specialization and number of years of experience to
their profile on the website.
Ground Reality of Implementation: Level Playing Field?Thus, with the increase of technology and data consumption by the masses, the
advocates have resorted to indirect advertisement techniques, which has now
resorted against the very purpose and object of banning them under Rule 36. This
questions the law whether there is a need for such restrictions, which are not
clear and uniform presently. The courts, must realize that such restrictions, in
reality, are imposed and create a burden on the small lawyers or law firms.
The large size law firms in the legal market do not need advertisement due to
being a known name in the market. They have an upper hand and advantage even
without advertisements over lesser-known professionals and law-firms in the
market, which does not provide a level playing field which the Rule 36 wanted
The market leaders in the legal professional increase their outreach by using
their resources and workforce to revolve around such restrictions. They garner
stakeholders' engagement by organizing events and webinars. They increase their
virtual presence and highlight their achievements on social media and
professional platform like LinkedIn, legal directories, publishing houses and
peer-to-peer platforms. Nowadays, news channels and newspapers cover high
profile cases of law firms.
The big players have revamped websites with great search engine optimization and
client ratings that facilitate traction by potential clients. Due to great
networking among Chartered Accountancy firms, Business Consultancy Firms,
retained clients, the known law firms are greatly benefitted.
In conformity to the present times, the big law firms create new age-tech
assistance to client to retain clients for long term and attract new clients. It
would include Video Conference facility to clients, 24/7 assistance in cases,
and other services on the website for clients.
Analysis: The Way Forward
On a critical analysis of Rule 36, it does not satisfy any of the conditions
specified in Article 19(2). The ban on advertisements by lawyers is not
constitutionally permissible, even on the ground of "public order" under Article
19(2) as the public order has been held to be synonymous with public peace,
safety and tranquillity.
Rule 36, in essence, is also violative of Article 19(1)(g) as a reasonable
restriction on prohibiting advertisement would only exist where the
advertisement is against public interest i.e. when it is immoral, obscene or
presents something which goes against public morality. India could learn from
global best practices from America, Australia and other jurisdictions where
advertisements of legal professional are allowed, subject to the clause that
such advertisement is not false, misleading or prohibited.
In the present times of the pandemic, the lawyers are not able to physically
network and present their case, and removing such restriction at this opportune
juncture is the need of the time. Such opportunity to advertise with reasonable
restrictions and disclosures will provide opportunity to novice lawyers and
lesser-known law firms, resulting in distribution of market power. It will also
provide the potential clients and aggrieved parties with information about
subject-matter expert and professionals which will let them make an informed
decision. It will enable international clients to hire Indian lawyers and legal
Thus, positive results can be achieved through streamlining the process and
enable advertisement by legal professionals in India with full disclosure and
true facts It is time to acknowledge the fact that commercialization of legal
profession if the need of the hour and thus if properly regulating will promote
competition in the legal profession and provide a level playing field.
Written By: Suvigya Tripathi
Law Article in India
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