Plea Before Supreme Court Seeks Urgent Directions To Bar Councils To Permit Advocates To Advertise For Limited Purposes

KEY TAKEAWAYS

Advertising is a key to grow or expand a business, irrespective of the size.

The legal profession in India is barred from using advertising or promotional strategies regarding the services they provide.

The plea has been filed to remove this restriction from certain areas so that lawyers can find a means of sustenance within the pandemic.

This restriction is limited to our country; other nations allow advocates to advertise their work.

This restriction does take away a few opportunities for growth from the lawyers of our nation, yet it continues to control the disparity within the legal field.

We need to find a balance so that even if we partially remove this restriction, we are not giving birth to a monopoly concerning the bigger legal firms.

INTRODUCTION

Today we all are living in the times when if someone wants to work, be it an organization or a freelancer they have to have strategies that help them to cater to the audience. Everyone needs to be equipped with the strategy of promotion to ensure that their product or service is reaching out to as many people as possible. We are living in an era where new businesses and industries are being opened every day, it is the time of cut-throat competition, and advertising has become one of the major tools to run your business. However a lot is also dependent on the way you choose to advertise your good or service because the consumers today aren’t up for long and monotonous advertisements, they want something quick, which is honest and also tells you about the product or service in a concise manner.

While some companies or organizations choose to aggressively advertise themselves, some subtle players ace the game by just being honest and playing it smart, but there is no denying the fact that without advertising and promotion an organization is more likely to fail today. This is the reason why almost every organization today has at least one department which works on their advertisement or promotion strategies. New and innovative methods are being found and made which help in catering to the masses of our nation.

However, there also exist a few professions in our country which cannot choose the ways of advertising to promote or expand their work. Advertising is strictly prohibited in these professions and we won’t be surprised to know that the legal field is one of them. It is indeed true that advocates/lawyers or even law firms are not permitted to carry out either advertising or promotional strategies of the services that they offer. Furthermore, there has been a recent plea before the Supreme Court which states that the Bar Council should allow this advertising for limited purposes, this article is going to focus on this issue itself.

WHAT DOES ADVERTISING IN THE LEGAL PROFESSION MEAN

It is the Bar Council of India that restricts the advocates from advertising the professional services which they have to offer. This law prohibiting the concept of advertising and promotion of the services that lawyers have to offer is derived from the old Victorian notion of the British common law it did not consider the legal profession as a strict form of trade and it considered lawyers as officers of the court. The origins of this law can also be traced back to the canons of American jurisprudence.

The legal profession was considered to be more of a Noble profession instead of services and this is one of the reasons for this restriction being imposed on it. this law is also said to protect the dignity of this profession however with the advancement of time it has been criticized to a very great extent because it is also considered to be an entry barrier for the new lawyers and it concentrates the power of the market to only a few lawyers who have a good and a high reputation, these people are also set to exploit the market by charging very high fee from their clients.

The advertisements which take place in the legal profession include visiting cards, seminars, issuing letters, interviews, and also a personal form of communication, however, this is said to violate the standards of etiquette and also professional conduct which has been set by the Bar Council of India as it is a statutory body which is responsible for the regulation of legal practices in India and also the exercise of a disciplinary jurisdiction over the bar. it was in 2008 where the BCI formulated this rule as for which no lawyer can advertise or solicit their work either directly or indirectly be it in the form of circulars or advertisements or interviews or even personal communication.

CAN ADVOCATES ADVERTISE IN INDIA

The lawyers in our country are not allowed to advertise the services that they provide. It is because our society considers the legal profession as a very noble one and regards lawyers with a high form of respect as they are expected to work for the social good of the people and to provide justice to those who are suffering and help those who needed. It also focuses on avoiding any form of jealousy amongst the lawyers, this was also emphasized in the case of ‘Sekkizhar V. Secretary Bar Council’.

The lawyers in our country cannot go for advertising even if they are in dire need of it. One reason for this is also the social pressure that is put on their shoulders to work for the greater good of society and not focus on just expanding their business or creating more profits by focusing on their brand image.

The answer to this question is very simple and a blunt no because of Rule No. 36 which was introduced by the Bar Council of India, and it has to be followed because the Advocates Act which governs the conduct as well as the standards for the advocates in our country, in its 49th section empowers the bar councils to formulate rules which will pertain to the standards of professional conduct and also provide for the conditions of practice for the lawyers of our country.

The advocates in our country are not even allowed to furnish newspaper comments or produce their photographs in connection with the cases which are concerned to them. Not just this but they are also not allowed to indicate in any manner that they are either the president or even a member of the Bar Council of India or any other Association by the means of signboards or nameplates or even stationary. It is believed that the commercialization of the legal field will result in an insult to the profession and it could lead to several unfair practices.

WHAT IMPACT DOES THIS RESTRICTION HAVE

While many eminent personalities feel that this restriction is for the good and it will have positive impacts in the long run there however exist a few people who feel that this rule imposes a series of negative impacts on the lawyers and the way that they carry out their work.

On one hand, while this rule might have helped when we consider the disparity in our legal fraternity, and this is because the firms which are big and are equipped with enough resources and finances to advertise their business or their services, we cannot deny the fact that there also exists more number of firms which are mid-tier or even small in size and they do not have these resources or even the finances by which they can advertise themselves. This could lead to all the opportunities being captured by the big firms no matter how good the small firms will be and it could also make the competition unhealthy for a lot of organizations as the big firms will be entitled to many opportunities where they can exploit the ones smaller to them along with the people who will be enticed by their advertisements, this was emphasized on in the case of ‘Bar Council of Maharashtra V. M.V. Dabholkar’.

On the other hand, however, the lawyers or the advocates claim that it has negatively impacted them as advertising could help the new lawyers or the freshers to at least get themselves known in the market and prevent the bigger law firms from establishing their monopoly apart from providing the smaller forms of platform where-in they can provide information regarding the services that they provide.

The advocates also claim that it takes away the opportunity of recognition from them because if they are doing some good work in a case it could help them to be known and help those who are in a similar situation and might need help. They could also help the non-legal folk to understand a particular aspect of the interpretation of a particular law for education. They also claim that this restriction denies the public at large obtain a proper and effective form of guidance when it comes to availing the appropriate kind of legal services which is required to fulfill their purpose.

WHAT DOES THE CURRENT PLEA SAY

It is because we are hit by a pandemic better job opportunities have gone down to an unimaginable extent and it is a very big reason why lawyers who have been suffering from lack of work have filed a plea before the Supreme Court of our country by which they aim at seeking directions to the Bar Council of India along with other bar councils to allow the lawyers to advertise for limited purpose in certain areas of service. The application suggests that this restriction on advertisement should be removed from certain areas of service where there are no court appearance works or in those cases where the professional prestige or privilege matters.

Earlier a plea had been filed to seek directions that would allow the public listings so that some other paralegal work could be taken up by the lawyers to earn their source of livelihood considering the pandemic situation and have a means of sustenance. The current plea focuses on pointing out the fact that despite the orders put forward by the Supreme Court, the Bar Council has not yet filed their replies in this matter. The application suggests that if this permission is granted then it would in no possible way lower or hamper the prestige of the profession and would instead prove to be beneficial for society.

WHAT IS THE SITUATION REGARDING THIS ISSUE IN DIFFERENT COUNTRIES

While the legal profession is common across the globe the prohibition on its advertising and promotion is necessarily not. we can observe this as we look at the various laws on this particular issue in various countries.

1. United Kingdom - it is under the Solicitors’ Code of Conduct of the year 2007 that advertising is permitted for lawyers in the United Kingdom. This code has been drafted by the Solicitors Regulation Authority which is also the regulatory body for the solicitors of England and Wales. it is the introduction to the 7th rule of this court which states that one is generally free to publicize either their form or their practice as subject to the requirements of this rule.

2. Singapore - when we talk about this country, the legal profession act which controls the conduct of lawyers or advocates within the country permits advertising. for them it is the 4th section of the Legal Profession (Publicity) Rules which states that: A lawyer and a solicitor me, subject to these rules publicize their practice or the practice of their firm or even permit the employees or agents working under them to do so.

3. Australia - when it comes to this country the rules for advocates are pretty much favorable. It is under section 36 of the Legal Profession Uniform Law Australian Solicitors Conduct Rules of 2015 according to which a solicitor or a lawyer should ensure that any form of advertising, marketing, or even promotion which is connected to them is not false or misleading, or deceptive or is in a manner which is likely to mislead or deceive or come off as offensive or something which is prohibited by the law.

4. European Union – it is the Council of Bars and Law Societies of Europe (CCBE) Code of 2006 which provides for provisions under personal publicity which permit or lawyer or an advocate to advertise their work or the work of their firm. It is divided into two sub-clauses of section 2.6, they state that a lawyer has the authority to inform the public about the services which they provide but they have to ensure that the information which they provide is accurate and does not mislead anybody and is also respectful of the obligation of confidentiality along with other core values of the profession. it also states that the personal publicity by a lawyer in any form of media is permitted to that extent tell it complies which the requirements which have been mentioned above.

5. United States of America - it was in the year 1977 that a landmark judgment in the Supreme Court of the United States named ‘Bates V. State Bar of Arizona’ Which was responsible for upholding the rights of a lawyer To advertise the services that they provide. Also, the rules concerning such advertising have been prescribed by the bar associations in individual states. It was also mentioned by the Federal Trade Commission that they encourage competition when it comes to license professions including the legal profession to that maximum extent which is compatible with the other States and also the federal goals.

CONCLUSION

With the onset of cases that our judicial system has been witnessing it would be fair to say that the landscape of the legal profession is changing in India. Recently it has become a trend of the courts to justify the legal profession as a form of trade and acknowledge the evolution that it has gone through. It is with the advancement of time that our judicial system has recognized that this profession is more of a service that is rendered to the consumers and the advocates are accountable to their clients in the cases of deficiency of services. The Madras High Court in the case of ‘Srinath V. Union Of India’ That the consumer redressal forums will have the jurisdiction to deal with the claims we just filed against the lawyers.

Furthermore, it was the case of ‘K. Vishnu V. National Consumer Disputes Redressal Commission & Anr.’ Where it was stated that a legal profession is a form of administration that has the end goal of the Consumer Protection Act. apart from this, it was the case of ‘Bangalore Water Supply and Sewage Board V. A. Rajappa' where It was stated that the legal profession will also be covered under the definition of the term industry when we talk about the industrial disputes act. with these cases, we can conclude that the legal services today have become the subject of trade-related laws especially in India where the concept of consumerism and the market forces need to be given their adequate space.

While we have seen that how restricting the concept of advertising in the field of law has resulted in depriving the advocates of a certain amount of opportunities for growth we however have also seen the other side of the coin which speaks about how this concept would only increase the disparity which already exists between different forms and different lawyers in the legal profession and how it could also give birth to a lot of unfair practices of the trade.

It is at once instance that we understand that for a business to grow to advertise is something which is very important and can make or break an organization we however also need to understand that not everybody is equipped with the same amount of resources and we cannot have a monopoly in a system like this which is meant to cater justice to everybody in the society and then sure that everyone is treated in an equal manner. Now the question that arises is whether this restriction should be imposed or not, there will be a variety of opinions and various suggestions to this however considering that we are in the middle of a pandemic and the job opportunities today have lowered down to a level like never before we cannot ignore the fact that advertising could help the lawyers in at least finding a way of sustenance in tough times like this but we must impose certain restrictions, for example, the amount of money that can be spent or how it can be done so that we boost creativity instead of giving rise to monopoly and also impose a set of stone actions against those who do not wish to comply to these norms.