In the wake of the COVID-19 pandemic, many lawyers have been suffering from a severe lack of work, owing to the lack of physical interactions coupled with a lack of any means of promoting or soliciting work by way of advertisements. Rule 36 of the Bar Council of India Rules (“BCI Rules”), framed in exercise of the power of the Bar Council of India (“BCI”) under Section 49(1)(c) of the Advocates Act, 1961 prohibits “solicitation of work” or any form of “direct or indirect advertisement” by an advocate. The only limited exception to Rule 36 of the BCI Rules, was brought by the 2008 Amendment through a BCI Resolution whereby furnishing information such as name, qualifications, contact details, areas of practice, etc., on a website was permitted for advocates. The amendment was brought pursuant to the judgment of the Apex Court in V.B. Joshi v. Union of India.
In this light, a plea has been filed before the Supreme Court for lifting the said prohibition; seeking permission for advocates to advertise for limited purposes. This issue has been long due and is of great concern to all legal professionals. Last year, on a similar plea, the Supreme Court issued a notice to the BCI, which prompted no response. The authors, by way of this article, shall discuss the sustainability of the reasoning behind such prohibition on advertising and subsequently analyse the constitutionality of such prohibition.
An Unsustainable Rationale for the Curtailment of Advocates’ Right to Advertise?
The rationale for prohibiting advertisements is based on the Victorian Era conception that the legal profession is a noble profession with the motto of public service at its core, that should not be maligned by commercializing it through advertisements which cause personal, unjust gains. This reasoning has been enunciated in various pronouncements of the Supreme Court.
In Bar Council of Maharashtra v. M.V. Dabholkar, the Court, while emphasizing that law is not a trade, held that conduct by way of soliciting, advertising, scrambling and other obnoxious practices constitutes a “taboo” for ethics and propriety in the legal profession. Hence, commercial competition or procurement should not “vulgarize” the profession. The Supreme Court in Indian Council of Legal Aid and Advice v. Bar Council of India, observed that the regulations made by the BCI are justified on the ground of “public policy” and “purity and dignity of the profession”.
This line of reasoning has become increasingly difficult to sustain in the light of the increasing commercialization of all aspects of life. With the escalation of a culture of consumerism, commercialization is inevitable. It is important to note that as much as this right to advertise remains crucial from the standpoint of the legal profession, it is required for fair dissemination of information about the service, to aid the consumers as they choose their legal representation. As all goods and services are being commercialized and made prone to rigorous competition, any profession which remains non-commercial stands at a clear disadvantage.
In both the United States of America (“US”) and the United Kingdom (“UK”), till the 1970s, by virtue of the same Victorian conception, advertisements were prohibited. However, adapting swiftly to the changing circumstances, in the US, the landmark judgment of the US Supreme Court delivered in 1977 in Bates v. State Bar of Arizona recognised the lawyer’s right to advertisement as a constitutional right. Similarly, in UK, the Courts and Legal Services Act, 1990 and the Solicitors’ Publicity Code, 1990 allowed and governed the advertisements of services made by legal professionals. India, on the other hand, continues to rigidly uphold its prohibition on the lawyers’ right to advertisement with complete disregard for the changing times.
Constitutionality of the Prohibition on the Lawyers’ Right to Advertisement
Right to advertisement under the guise of commercial speech, is a fundamental right as a part of freedom of speech and expression under Article 19(1)(a) of our Constitution, as has been held by the Apex Court in TATA Press v. MTNL. The Court observed that advertising is the cornerstone of our economic system, and held that commercial speech (which covers advertisements) cannot be denied protection of Article 19(1)(a).
Seen in this light, the prohibition on advertisements for advocates can be considered as violative of Article 19(1)(a). This is because the reasonable restrictions which can be imposed on the exercise of any right under Article 19(1) are only with regard to interests of sovereignty and integrity of India, security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation or incitement to an offence. Prohibiting advertisements for advocates does not fall within the ambit of either of these heads, but rather emanates from the traditional conception of the legal profession itself, as discussed earlier. Further, as opined in Dalbir Singh v. State of Punjab, the prohibition cannot even stand on the grounds of ‘public interest’, for the reason that this phrase has been held to be synonymous to public peace, safety, tranquillity, amongst others. Hence, Rule 36 of the BCI Rules goes against the intent of Article 19.
It can also be argued that such prohibition on advertisements is also violative of Article 19(1)(g) which protects the right of citizens to practice any profession of their choice. This is because although in theory there is no restriction on the advocates to practice their profession, in light of the pandemic, due to the decline in physical and personal interaction, the only mode to invite clients and carry on the work is through solicitations and advertisements, which are strictly prohibited. In this manner, a large number of legal professionals, especially those who are relatively new to the profession and do not yet have an established client base, are unable to find work, and their livelihood has been disrupted.
This argument leads to another challenge to the constitutionality of the prohibition on advertisement — on the touchstone of Article 14. This argument can be understood in three ways. First, the prohibition leads to undue discrimination between legal professionals and other professionals like consultants, chartered accountants, company secretaries, etc, who suffer from no such prohibition on their right to advertise. As a result, most of the work in areas common to these professions such as tax consultancy, return filing, online registration of entities, formation of companies, loan appraisal, documentations, etc., is taken up by persons other than those in legal profession solely because the people are more aware of the other professions’ work profile owing to the advertisements made by them. This not only adversely affects the legal professionals, but also the public at large because it becomes crucial for the citizen’s right to know whereby legal professionals are equally if not better qualified to undertake such work. This goes entirely unnoticed, because competing professions have ways of propagating their work through media, while lawyers do not enjoy these means.
Second, the prohibition on advertisement leads to discrimination between new and upcoming advocates and law firms with no or low client base on one hand and established firms and advocates with a stable client base on the other. Those who have recently entered the profession and started their practice face an undue disadvantage as they have no means of landing clients, with the lack of personal interaction owing to the pandemic. This results in a peculiar kind of inequality with no established intelligible differentia between lawyers in top-tier firms, budding law firms, and independent advocates with varying years of established practice.
Third, because of the prohibition on advertisements, various sections of people and prospective clients are unfairly situated and discriminated against without any reasonable basis. This is because only a limited populace having access to and competence for social media and internet services is exposed to the information provided by lawyers through their websites. For a majority of people, based out of small towns or without internet connection, such details about lawyers’ work profiles remain inaccessible. This divide amongst the people creates an unnecessary gap and discriminates between the privileged and underprivileged sections of society. Therefore, the need for providing information to prospective clients is crucial in the present scenario, which can only be done through advertisements.
With the changing times, the dynamism of the legal profession is coming to light. Better and enhanced commercial and business aspects proliferate as part of the profession. The most prominent areas of practice for top-tier law firms relate to corporate and other commercial laws. This goes on to highlight the pressing need to keep the legal profession at par with any other service or profession due to its increasing commercial orientation. Else, it is like commercially operating in the dark, where only you are aware of what you are doing, but nobody else is. Permitting advertisements for limited purposes would in no way affect the dignity of the profession and would rather be beneficial for the society at large; people would gain the much-needed knowledge and awareness, and would not hesitate to ask for legal help which is still considered a taboo in some conservative households.
Every situation offers a way around, so even though theoretically advertisements are prohibited, indirect means of advertisement and promotion are deployed. This may include organizing and sponsoring workshops, conferences, webinars, moot court competitions, etc. by prestigious lawyers and law firms. These things have especially become commonplace in the backdrop of the COVID pandemic, where they have become an important means of imparting knowledge.
Hence, the current plea becomes of great importance to clarify this dilemma and for the prospective development and proliferation of the legal profession as a whole. There is a pressing need to amend the present rules regarding the prohibition of advertisement for legal professionals in the light of recent developments. The Indian law emanates from the Victorian thought which attributed nobility and high virtues to the profession. Permitting for selective advertisement rights would allow lawyers to indulge in chamber work, and thus, make optimum use of their work profile along with sustaining the profession’s rectitude. The changed international scenario, with US and UK recognising the lawyers’ right to advertise and the dominant role played by social media need to be taken into account. Having witnessed ground-breaking changes across numerous fields due to the current COVID-19 situation, the onus is now borne by our legal system to take cognizance of the same and open the door to new rules so that the lawyers in India can be at par with other professionals around the world.
*Falguni Sharma is a second year student at National Law University Jodhpur and Raajash Kulmi is a third year student at National Law University Jodhpur.
Views are Personal