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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 services.

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 Website

In 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 to achieve.

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 outsourcing services.

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

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