Academic Article by- Anuj Vishwakarma
Introduction-
India is among the countries with the most numbers of legal professionals. Yet, the people in India as well as other countries know a little about the legal professionals and law firms in the country. Big credit to this inconsistency goes to the fact that neither law professionals nor law firms have the right to advertise themselves and publicize their work in the market. The prohibition on the advertising of the profession on the old age British notion that law is a noble profession and any kind of advertising in the same affects the nobility of the same. However, the opinions on the topic are polarized, with some people defending the prohibition and others attacking the same with various notions.
Constitutionality of the Prohibition-
The ban on advertising has been imposed based on the statutory provisions provided under the Bar Council of India Rules and The Advocates Act, 1961. Section 7 (1)(b) when read with Section 49 (1)(c) of the Advocates Act authorizes the BCI to lay down rules on the standard of professional conduct and etiquette for advocates. More ever, Clause 36 under Section IV of the BCI rules on ‘the standard of professional conduct and etiquette for advocates’ seems to impose a ban on advertising in the legal profession. It says “An Advocate shall not solicit work or advertise, either directly or indirectly, whether by circulars. Advertisements, touts, personal communications, interview not warranted by personal relations, furnishing or inspiring newspaper comments or procuring his photograph to be published in connection with cases in which he has been engaged or concerned…”
Clause 36 of the BCI rules prohibits advertising either directly or indirectly. However, the Supreme Court of India amended the rule from its original form through a resolution in 2008 to allow the advocates to furnish primary information of an advocate such as name, address, email id’s, telephone numbers, academic and professional qualifications, area of practice on their websites and information relating to enrollment. However, even these legal professionals who provide the mentioned information are required to declare that the information furnished is true.
Perspective favoring the Prohibition-
In the opinion of many legal professionals and other people, the legal profession is a noble profession, and the advertisement of the same harms the sanctity of the field. Advertising can result in severe harm to the profession. It can lead to the lack of professionalism of advocates, which in turn may result in impairing the dignity and self-worth of the professionals. The words of Justice Krishna Iyer in the case of Bar Council of Maharashtra v. M.V. Dahholkar, “the canon of ethics and propriety for the legal profession totally taboo conduct by way of sold 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”.
Perspective opposing the Prohibition-
In this everyday modernizing world, the old age notion about the legal profession is dwindling. Many legal professionals have been and are critical of the ban in India. It is even argued that the prohibition is not constitutionally valid and is an infringement of the fundamental rights of legal professionals. Article 19 (1)(a) guarantees freedom of speech and expression with the only exception being the interest to the sovereignty, integrity, and security of the state, friendly relation with the foreign states, public order, morality or concerning contempt of court, incitement of an offense and defamation. It is argued by many opposers of the ban that it is in violation of Article 19 (1)(a) and therefore, infringes the fundamental right of the legal professionals.
Apart from this, many other advantages of advertising have been enunciated. Analogies have been made with countries like the United States and the United Kingdom, who switch to the preservation of the advertising rights of the legal professionals after initially banning the same. In Bates v. State Bar of Arizona, it was ruled that the advertisement in the legal profession would be helpful and the consumer would benefit from the advertisements which include information on accessibility and cost of legal procedures.
Opposers of the ban also argue that advertising would heavily benefit the legal profession. Almost every other field in the modern world uses advertising as a tool to gain consumers and it has been beneficial also. The legal field in India which faces the problem of accessibility can also benefit heavily from the same.
There is also a notion among the opposers that the ban ultimately results in damaging small firms. Big firms find their way to advertise themselves through indirect means, while the small firm falls to the disadvantage of popularity and gets affected badly.
Conclusion-
In this era of advertisement and publications, the prohibition on the same in the Indian legal profession has been a point of discourse for a long time now. On the one hand, the nobility of the profession with the notion that advertising would seriously affect the sanctity of the profession in India shouts for the profession to continue to be unadvertised. On the other hand, the changing scenarios with shifts from the old age notions and belief that the advertising in the field would result in the benefit of the profession advocates for the lifting of the same. In the current covid world where online is the new norm, the importance of the advertisement increases. People who cannot afford the big firms should have the accessibility to the firm of their choice. However, the prohibition on the advertising acts has a bump to the same. On the other hand, professional sanctity is at hand. The need is to find a suitable solution, especially in this covid era without fracturing the nobility of the noble field.
References-
http://delhihighcourt.nic.in/writereaddata/upload/CourtRules/CourtRuleFile_X09D4F6E
http://www.legalservicesindia.com/article/2542/Advertising-in-Legal-Profession.html