Should Advocates be Permitted to Advertise and Take Up Alternative Work?- An Insight into the Legislative, Judicial, and Current Approach

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In India, we consider the legal profession to be a noble profession. It is assessed by a standard of legal ethics that might seem outdated in today’s time. But, the Bar Council of India still maintains strict standards for lawyers.

Initially, the BCI rules had placed a complete ban on advertisements by lawyers. Although, in 2008, they made some relaxation. They allowed legal professionals to organize websites. It would specify their contact number, area of specialization, and qualifications.

In India, various indirect advertisements by lawyers have been taking place. This includes visiting cards, directory listings, seminars, and felicitation ceremonies, and many more.

What Rule is in place for the Advocates in India?

As per Rule 36 of the BCI rules, an advocate shall not solicit work or advertise. This includes both direct or indirect means. Further, his/her nameplate should be of a reasonable size. He/she should not state whether he has been the President or Member of the Bar Council. He/she also cannot state whether he was a Judge or Advocate General. Moreover, he/she should not show if he is associated with any person or organization in any way.

If an advocate violates Rule 36, then such advocates have to face the consequences. They will be liable for misconduct under Section 35 of the Advocates Act, 1961.

Section 35 of the said Act lays down the punishment for the misconduct of advocates. The misconduct can be professional or otherwise. Such an advocate shall be referred to the disciplinary committee. If found guilty, the BCI will suspend him/her for a definite time, or they will remove his/her name will from the State Advocates Roll.

Judicial Approach

The Judiciary has made significant contributions to upholding the dignity of the profession. In the case of R.N Sharma, Advocate v. State of Haryana, the Court held that an advocate is an officer of the Court. It was also observed that the legal profession is not a trade or business. Yet, the question is, what is an advertisement in the legal profession?

The case of Re: (Thirteen Advocates) v. Unknown speaks about lawyers publishing articles in newspapers. The Court held that the writer describing himself as a practicing lawyer is a cheap way of endorsing.

In the case of Bar Council of Maharashtra v. M.V. Dadholkar, Justice Krishna Iyer made some observations. He stated that an advocate is not allowed to advertise for the betterment of the profession. He also stated law is not a trade and hence commercial competition should not vulgarize it.

These observations make one thing clear. The Courts too refrain the advocates from advertising themselves. They consider it to be for the betterment of the legal profession. The Courts are of the view that advertisements will lead to the downfall of the ethics of lawyers. Further, it will lead to jealousy amongst them and the exploitation of the public.

Does Rule 36 Seem Constitutionally Valid?

Article 19(1)(a) of the Constitution of India guarantees Freedom of Speech and Expression. In the case of Tata Yellow Pages v. MTNL, the SC made an important observation. It held that freedom of speech and expression extends to commercial speech. This includes advertising. Further, the SC maintained this stance in the case of Dharamvir Singh v. Vinod Mahajan. It held that the legal profession involves business proposition. Hence, advertising comes within it.

From the above analysis of the provisions and cases, it seems that Rule 36 is excessive in nature. It also seems quite unconstitutional.

Present Scenario

Advocates have faced the loss of income during the pandemic and the following lockdown. There have been reports of suicides and depression. Thus, a petitioner has filed a plea in the Supreme Court. It prayed that the BCI bring in changes to the BCI Rules by issuing modification of rules. It also prayed to initiate modifications under Section 49 of the Advocates Act, 1961.

The recent death by suicide by a 35-year-old advocate indicates the situation of the advocates. Many advocates are going through a financial crunch due to the closure of Courts. The plea has put forth three suggestions to tackle the problem:

  • Allow advocates to be sleeping directors or sleeping partner. This will allow them to act as legal retainers or advisors.
  • Permit the use of advertisements and WhatsApp messages to take up chamber work. This includes income tax and GST assistance, trusts, including the filing of online cases.
  • Allow advocates to earn their livelihood by alternative means. Especially in view of the current situation. However, they will sign an undertaking that this will not continue after March 2021.

Conclusion

This is an era of promotion and advertisement. Yet, the BCI denies Indian lawyers the right to advertise. Yet, total relaxation on the same should not be there. Permitting advertisements might lead to advocates furnishing dishonest information. The advertisement may sway clients. They may base their decisions just on the advertisement. They will not take into consideration the fair evaluation and reputation of the advocates.

Another possible consequence is the shifting of their focus. Advocates will be more into publicizing themselves rather than improving their skills. This could affect the quality of the services. There are certain disadvantages. Though, we need to understand that indirect advertising takes place in this profession. But due to the ban, we are not able to enjoy the positives of the same.

In the author’s opinion, the BCI should not ban advertising per se. Instead, as long as it promotes legal awareness and gives a chance to the client to choose the right advocate, it should be permitted. The BCI should lay down rules related to this matter. This fulfills the need for advertising and keeping a check and regulating it. In this way, BCI would retain the regulatory role. This would further allow advocates to publicize their services. At the same time, clients could exercise their right to information. During this lockdown, the BCI should take into consideration the suggestions put forward.


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