Are Advertisements for legal services banned in India?

Legal profession advertising is specifically barred by the Bar Council of India and Advocates Act, 1961 . It means that legal practitioners are prohibited from advertising their services. It can be difficult for a person to make that decision in today's competitive market where people naturally want reviews and recommendations from reliable sources and will base their decisions on those within their network, without advertisement. This is especially true when choosing an Advocate.

In India, there are thousands of currently practising advocates. Not only this, the number of advocates in India is ever-increasing as more law graduates enter the profession each year. In this situation, word-of-mouth advertising is ineffective, making networking for lawyers challenging.

Let us discuss further the prime contention whether - “Legal Advertising is banned in India or not”.

Does it have a historical background?

This prohibition first appeared in Victorian England and has persisted since then. Its foundation is the Indian societal construct of ethics and morals, which forbids the promotion of work—a principle that once struck a chord with the UK. Allowing advertising is equated to vulgarising the legal profession, which is seen as a noble pursuit with justice as its end objective. However, these restrictions have only faded considering the importance of advertising in the present scenario. Just so you know, these limits have been placed in India only.

For instance, under the Legal Services Regulation Act, 2015, which contains the (Advertising) Regulations, 2020, solicitors and barristers in the UK are allowed to advertise their practise and services. These regulations apply to all forms of advertising, including online, audio, and visual. The Council of Bars and Law Societies of Europe Code, 2006, allow lawyers in the European Union to "notify the public of their services subject to authenticity and primary ethics of the profession."

What is the position in India?

The Advocates Act of 1961 establishes the standards of conduct for Indian lawyers. The Bar Council of India and the Bar Councils of states in India are empowered to establish rules governing professional legal behaviour under Section 4 of the Act. In accordance with Section 49(1) of the Act, the Bar Councils now have considerable jurisdiction to establish rules governing "the standard of professional behaviour" and "conditions of practice" for attorneys.

Rule 36 of the Bar Council Rules expressly states that

"An advocate is prohibited 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 producing his photographs to be published in connection with cases in which he has been engaged or concerned. Even the signboard, nameplate or stationery of an advocate should not indicate that he is or has been the President or Member of a Bar Council or of any Association or that he has been associated with any person or organisation or with any particular cause or matter or that he specialises in any particular type of work or that he has been a Judge or an Advocate General."

Rule 36 and subsequent amendments

Prior to 2008 relaxations, Rule 36's position had sparked concern from the legal community due to its uncertainty and perverted definition of what would constitute advertising. While deciding on the lawful advertisement problems, the various courts in India encountered a conundrum and differing opinions. The State Bar Councils warned them and took Suo-moto severe action against those who turned to advertise their services, even though the Supreme Court sympathised with the advocates in the "have-not" position.

The High Court made clear that an advocate is an "officer of the court" in the 2003 case of RN Sharma Advocate vs. State of Haryana. The court further declared that the legal profession is an honourable one and does not qualify as a trade or business. The advocates must work to obtain justice for their clients while staying within the bounds of what is allowed by law.

The BCI guidelines (rule 36) were, however, liberalised and revised in 20089 to loosen the restrictive law regulating advertising, which brought us to the current legal status quo. The current version of Rule 36 states that "Advocates can give just certain basic information on their chosen websites", primarily their name, enrolment number, telephone number, e-mail address, and professional and academic credentials.

They can list their years of experience and areas of expertise on a website. A certification declaring that the information provided by them is accurate must also be submitted by the Advocates publishing the required information. Any further details outside of those listed in Rule 36 will result in charges of professional misconduct and liability under Section 35 of the 1961 Advocates Act. An advocate who violates these Rules may face legal action.

Case Laws

The canon of ethics and propriety for the legal profession completely forbids conduct by way of soliciting, advertising, scrambling, and other objectionable practises, subtle or clumsy, for the improvement of the legal business, according to Justice Krishna Iyer in the Bar Council of Maharashtra v. M.V. Dhabolkar . Law is not an exchange, and neither are briefs or shares, so the utopia of corporate rivalry shouldn't debase the legal profession. The notion that legal advertising will reduce this esteemed profession to a purely profit-making organisation is what will shift attention away from ideas like liberty and justice and toward profits.

In another case, Government Pleader v. S.A Pleader , it was decided that sending a postcard with a lawyer's contact information, such as name, address, and title, would be considered advertising. It would be determined that the pleader had violated the expected professional conduct of an advocate.

The Hon'ble Supreme Court ruled in Tata Yellow Pages v. MTNL that commercial speech, or advertising, is a fundamental right that must be safeguarded under Article 19(1)(a) of the Indian Constitution. The verdict did not, however, have the consequence of declaring Rule 36 of the BCI Rules unlawful because a full bench did not hear the case.

In a different instance, the Allahabad High Court ruled that publishing newspaper articles in which the attorney describes himself as a practising attorney in courts can be construed as a cheap means to endorse one's services. Additionally, the Madras High Court stated in SK Naicker vs. Authorized Officer that publishing articles in newspapers under an advocate's signature constitutes illegal legal advertising.

The prohibition imposed by Rule 36 was contested in a Writ Petition submitted by V. B. Joshi. The constraints were relaxed, allowing the legal community and professionals to promote themselves and share nuanced information about their field. Legal professionals may post credentials such as their "names, PQE (Post Qualification Experience), fields of practice, and personal details on websites" following the modification.

Conclusion

In several nations, including India, the laws governing advertisements have been relaxed, reflecting the shift in public opinion that advertising as a whole should not be outlawed. This is so that the government may now recognise the benefits and necessity of hiring legal counsel. Advertising must be permitted under controlled regulations as long as it does not encourage dishonest behaviour or deceive prospective customers, it promotes legal awareness and provides enough opportunities for the client to assess the competence.