India: Are The Rules Regarding Prohibition Of Advertising In Legal Profession Self-Contradictory, Discriminatory & Nocuous?

The bench of the Supreme Court of India, comprising of Hon'ble Chief Justice S.A. Bobde, Hon'ble Justices N. Subhash Reddy and A.S. Bopanna, on 14 July 2020 issued a notice to the Bar Council of India, in response to a plea to allow advocates to advertise on several fora till March 2021, considering the impediments of the COVID - 19 lockdown.(Charanjeet Chanderpal v. Bar Council of India & Ors., W.P. (Civil) No. 627 of 2020) The plea stated that due to the lockdown imposed by the Government, the source of income of advocates had considerably deteriorated. Given the current prohibition on advertising in the legal industry, advocates are left with almost no means of livelihood, and no prospect of drumming in business, due to lack of the usual word-of-mouth business development opportunities. Thus, they sought permission to advertise themselves with the hopes of accelerating business.

The current regulatory status quo in India disallows any form of advertising by an advocate, with a rather vague and distorted view of what would be construed as advertising. This has caused mixed opinions amongst several Courts while adjudicating on matters related to advertisement of legal services. More contemporaneously, while the Supreme Court empathises with the 'have-not' strata of advocates, several other State Bar Councils have reprimanded the same and have taken suo moto strict disciplinary action against the advocates who have advertised their services.

This article seeks to understand first, the legal framework surrounding advertising, by advocates or of legal services in India. It will then analyse how advertising has grown in its outreach and methodology for absorption by masses. This had led to various forms of 'advertising' which though not strictly under the umbrella-ban of advertising, act as viable and efficient forms of indirect advertising. Finally, it discusses if the ban on advertising still remains true to its objective, and most importantly, if a change in the grundnorm of advertising in law is needed.

Current Status Quo

The professional conduct and standards for advocates is governed by the Advocates Act, 1961 (Act). Section 4 of the Act provides for the existence of a Central Bar Council i.e. the BCI and respective State Bar Councils. The Bar Councils are empowered to make rules relating to professional legal behaviour. Section 49(1) of the Act has widely armoured the Bar Councils to make rules governing 'the standard of professional conduct', and also the 'conditions of practice' for an advocate.

Rule 36 to Section IV (Duty to Colleagues) of Chapter II (Standards of Professional Conduct and Etiquette) of Part VI (Rules Governing Advocates) of the BCI Rules, as was published in the Indian Gazette on 6 September 1975, in its original form acted as a complete bar to advocated advertising their services. Rule 36 reads as follows:

On a bare perusal of the above, it may be gleaned that Rule 36 infers an almost complete disallowance to advertise by advocates. Such a straitjacket ban owes its origins to British Law, (The Solicitors Act of 1933 allowed Law Society to discipline solicitors. Axiomatically, it prohibited any form of advertising) that perceived the legal profession not as a strict trade, and considered officers as quintessential officers of the court. Impetus is also given to the Canons of American Jurisprudence. Ordinance 27 of Professional Ethics of the American Bar Association reads that it would be 'unprofessional' to solicit the services of an advocate. It is however, ironic to note that these sources of jurisprudence though cited countless number of times in our law, has done away with the practice of banning advocates from advertising.

The glaring difficulties and arbitrary nature of Rule 36 was challenged from its very inclusion, in a plethora of conflicting judgments, all to no avail till 2008. A few notable amongst them are outlined below.

As early as 1967, the Madras High Court in C.D. Sekkizhar v. Secretary Bar Council AIR 1967 Mad.35 opined that advertisements by advocates were disallowed to prevent feelings of jealousy and was unbecoming of the noble profession. More notably, the Apex Court in Bar Council of Maharashtra v M. V. Dabholkar, (1976) 2 SCC 291  held that "commercial competition and procurement could vulgarise the legal profession".

Contrastingly, in 1985 in Dharam Vir Singh v Vinod Mahajan, AIR 1985 P&H 169, the Punjab & Haryana High Court held that rendering legal services would be a business proposition, and advertising the same would come within the purview of 'commercial speech' as was to be protected by Article 19(1)(a) of the Indian Constitution. Pursuant to this, the Supreme Court in the celebrated Tata Yellow Pages v MTNL, (1995) 5 SCC 139 held that commercial speech was a fundamental right, to be necessarily protected by Article 19(1)(a) of the Indian Constitution. However, Tata Yellow Pages, not being heard by a full bench and involving substantial questions of law, did not have the effect of declaring Rule 36 of the BCI Rules, unconstitutional.

Many such attempts were futile till 2008. On 24 March 2008 by a Resolution being Resolution No. 50/2008, the BCI amended Rule 36 of the BCI Rules before a Supreme Court three Judge Bench presided by Hon'ble Justice B.N. Aggarwal. The Apex Court was hearing a Writ Petition filed by V. B. Joshi, WP(C) 532 of 2000, which challenged the prohibition as imposed by Rule 36. The amendment allowed advocates and fellow practitioners of the legal fraternity to provide details such as their names, PQE (Post Qualification Experience), areas of practice, personal details on websites to "publicise lawyers and reveal subtle elements of their practice."

Amendment of 2008: Make Way For Surrogate Advertising

The proviso to Rule 36, added by the Amendment of 2008 reads:

Additionally, it was also held by Hon'ble Justice Kapadia that advocates would also be allowed to furnish their PQE and areas of specialisation on websites as allowed by Rule 36.

Essentially, the Apex Court and BCI recognised the faux pas of the wide-arching prohibitions imposed by Rule 36. The Proviso also gave teeth to the BCI, empowering them to take disciplinary action under Section 35 of the Act.

 The introduction of the proviso in 2008 opened a can of worms regarding the lack of clarity and ambiguity of Rule 36. Advocates were now allowed to furnish their information on networking corporate websites, such as LinkedIn and a multitude of other legal directories.

From 2008 to 2020, there has been a paradigm shift in advertising and marketing models and more importantly, in the way the masses absorb advertisements. With zenith advancements in technology, e-commerce, outreach of electronic models of advertisement, the more informed consumer is consuming data at rates like never before. Therefore, the relaxations to Rule 36, by way of the proviso, are now facilitating and allowing "advertisements", which is against the very purpose and object of banning them. More lucidly put, Rule 36 bans advertising by advocates; the amendment of 2008 sought to further publicise advocates and in providing more information to the masses regarding the advocates. However, with increasing absorption rates of data by the masses, such information serves as indirect advertisements.

LinkedIn, for instance, has a vast network that, based on such information allowed by the proviso of Rule 36, aids in attracting work/jobs by head-hunters. Columns published by Advocates and Senior Advocates exalt their performance and practice. With more and more data being consumed, these sources have evolved to a form of surrogate advertising.

Most of us have attended webinars conducted on various topics during the lockdown, which have been 'advertised' by the hosts on almost all social platforms. All of these catalyse drumming of business and serve as effective methods of advertising, though within the wing-span of Rule 36 in its entirety.

Aroint Thee, 36

Though these words By Justice Krishna Iyer reverberate through every discussion and discourse on legal advertising, the ground reality is that these notions are not applicable in its narrow sense today. Greater commercialisation of the legal industry, and sheer increase in the number of practitioners has made the fraternity an aromatic melting pot. Advertising in its injured sense as it stands now, is ailing the benefits of legal advertising. Advertising if allowed, would greatly benefit the fresh advocates, those not amongst conventional associations, and would have international consequences. There would be greater collaboration due to increased outreach with foreign legal fraternities, who as of now are in the leeward side of understanding our legal system.

Advertising of legal services would also greatly benefit the common man. A person would have more choice, and could make a more informed choice from a large variety of uniform options. It is not disputed that checks would be needed to curtain instances of false and exaggerated representations.

The lockdowns imposed pursuant to the COVID-19 pandemic has made everyone realise a fresh reality. It threw light upon the already impoverished but even worsened conditions of fledgling advocates. This lockdown has marred their ability to provide for food for their families, and the little work that is happening, always goes to those who have the means to indirectly advertise themselves, and are the more sociable, so to say. The High Courts of several states have issued notices and suggestions of providing relief to advocates, considering their truly jarred circumstances. To allow advertising would provide them with great relief. Also, this article aimed to show how such allowance would not be creating a new right, rather would be in the form of clarifying an already existing allowance. Additionally, it would also benefit already established lawyers and law firms. Allowing direct advertisements concomitant with capital would monumentally increase profit making abilities.

An unregulated relaxation would be harmful. A balance must be struck. With the existence of the proviso to Rule 36, essentially, a gateway has opened that allows a form of surrogate advertising, within the current milieu, which cannot be checked, apart from over action on small instances. There are far greater benefits for allowing advertisement of legal services as explained above, which have now been accepted and understood by Courts as well. This would additionally avoid the current hullabaloo and discrimination caused due to the dichotomy of views and interpretation involved with legal advertising. It is merely a matter of time, before the noose of Rule 36 would be loosened.

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