Can Advocates Practicing Before Courts Become Social Media Influencers and Monetize Their Online Presence?

Atharva Jha* and Yash AK Gawande**

Introduction

Legal profession in India has continued to follow multiple practices which were established or inspired by British and colonial legal profession and culture. Whether it is the practice of calling the judges of higher courts “your lordships” or robing the black gowns over their body while appearing and pleading before judges.  The phenomenon was not limited to the legal professions, but had influence over every field of practice in India earlier. With time all these notions of colonial culture were done away with the change in societal mindset and governmental reforms.

The questions that one may ask is that what exactly has led to the legal profession still continue to follow the English culture of practice? The answer to the immediate query is reflected with the fact that India continues to follow the laws that were long enacted by legislature of colonial period, and also in the convenience of the practitioners who have adopted an already existing procedure and rules, with chartered court of Bombay, Madras and Calcutta continue in taking pride in its culture of traditions and renowned identity.

The same is the point with advertising of legal services and lawyers in India. The prohibition on marketing and public solicitation of legal services is a relic of the colonial past but is believed to continue the idea that practice of law is a profession serving a noble cause which must remain free from the greed of maximising monetary gains.[1] Moreover, another point attributed to the rule of non-solicitation of lawyer’s services is based on ethics or moral values in Indian society, justifying abstention from advertising noble areas of societal importance.[2]

The digital revolutions and advent of social media has significantly changed every aspect of human life, and the legal professions remains no exception to this effect.[3] Social media has emerged as a medium to express one’s thoughts and ideas publicly, with the capacity to capture the attention of thousands of people using the platform. A virtual world is which extending beyond borders and acts as a platform to connect and promote anything in a time frame which was never imagined ever before. As the world shifted to internet and started spending more time on virtual world of social media, the opportunists looked at it as a commercial chance to make gains. Although the physical market account for a significant number of monetary transactions, the internet has emerged as a medium of advertisement and promotion which can further enhance the sales and demand for goods or services. Unreasonable or indeterminate obstruction to such promotion would be categorised as infringement of basic fundamental rights. This argument can be fortified by referring to the pronouncement rendered by the Hon’ble Supreme Court in Anuradha Bhasin v. Union of India[4] wherein it was held that expressions of speech and ideas through the means of internet is a fundamental right and forms an integral part of Article 19(1)(a).[5] It was further held that trade and commerce on internet is also protected as an integral right under Article 19(1)(g).[6] Such precedents have set a stage ready for people who can easily influence the choices of public and effect the public perceptions through social media. Even a general term is assigned to these categories of socially persuasive people- “social media influencers”.

While the Hon’ble Supreme Court’s ruling mentioned above deserves the credit of establishing a landmark precedent to safeguard the rights of millions of people who rely on social media and internet today for their economic growth and information accessibility. However, we submit that some professionals taking support from the judgment of the Hon’ble Supreme Court in Anuradha Bhasin are indirectly promoting their professional services that are generally recognised as noble and whose public advertisement is prohibited.  This situation is what the legal professions are facing today, in the context of statutory and regulatory bar on certain activities imposed by professional bodies. Therefore, the question that arises for the examination and analysis in this article is whether practising advocates can within their permissible and regulatory limits get involved in social media influencing activities and gain financial gains out of them? The present question will be examined in reference to the legal and statutory provisions restricting advocates from indulging in promotional activities, and various judicial pronouncements rendered by courts in India, observing the issue of publicity on social media by lawyers.

Legal Analysis of the problem

The Hon’ble High Court of Madras has examined the nobility of legal profession and ethical principles associated with the practice in detail in P.N. Vignesh v. Bar Council of India[7] wherein the court had the occasion of analysing the effect of solicitation of works by legal practitioners through online directories which enlisted the details of lawyers on their platforms categorising lawyers according to their area of practice and in some cases; the amount of fees they charge. The users of such online directories also had the option to rate and comment upon the services of a lawyer.

The High Court in Para 7 observed that “Every lawyer in our country is a contributor in the process of delivery of justice. And it is not for any third party to brand or rate the services of a lawyer. Legal profession is not and can never be treated as a business.”, the court had set the notion in the background of which such cases must be examined. The court later observed and cautioned that such online platforms which are used for advertising the services of advocates amount to degrading the profession of law and interferes with the ethics of practice in India. The Court further observed the misguiding and unverified influence these platforms can have on the perception of the society towards legal profession.  Accordingly, holding that promotions through similar online portals invited the application of Section 35 of Advocates Act.[8] The Hon’ble court in the aforesaid decision directed the Bar Council of India (BCI) to issue Circulars/Instructions/Guidelines to the State Bar Councils to initiate disciplinary proceedings for misconduct against the Advocates who are involved in activities like solicitation or advertising of works as in the instant case.

Pursuant to the passing of the directions as mentioned above, the Bar Council of India issued a press release[9] whereby the council highlighting the decision of the Hon’ble Madras High Court, instructed all State Bar Councils to initiate stringent disciplinary actions against advocates who indulge in activities of solicitation and advertisement through internet/online platforms.

BCI in its circular issued subsequent to the directions of the court clearly states that advocates must not promote their services in a form which helping them get commercial benefits The aforesaid recent ruling and related statutory provisions would provide the readers an idea about the restrictions imposed the legal professions for ensuring that its primary objective is fixed on serving a social cause While business outlets and entities enjoy a general freedom of promoting their products and services for maximising revenues, a legal professional is bound to uphold the spirit and purpose for which the profession was established i.e., to serve justice. While doing so, advocates have to sacrifice on multiple opportunities to earn profits by using simple techniques acceptable to other people- all for the sole aim of impartially serving justice.

A new form of advertising legal practice and law firm brands has also emerged where the entities readily finance and sponsor events to create a visible image for their outlets. This has also been recognised in academic writings[10] and also by authorities in India.[11]

Examination of Professional Ethics

While express provisions like Rule 36 of Bar Council of India on Standards of Professional Conduct and Etiquette prohibit the promotional activities by law professionals, the standard jurisprudence has long been established way back in the year 1976 itself, by the Hon’ble Supreme Court of India speaking through Hon’ble Mr. Justice V.R. Krishna Iyer, in Bar Council of Maharashtra v. M.V. Dabholkar.[12] In this case, the Hon’ble Justice Iyer (as he then was) had categorically stated in indubitable terms that the ethical standards of modern legal profession and consequent bar on solicitation of works are not mandated by express rules issued by statutory bodies like Bar Council, or by way of fear of disciplinary authorities, instead the ethics are created and followed through the canons of conscience today.[13]

Despite, pertinent observations of apex court, we may still find lawyers and practising advocates continue the marketing in one form or the other. The ostensibly adavntageous reasons for which marketing of legal services is done includes raising awareness, providing a global recognition to domestic firms, educating public about rights, providing equal opportunities to new professionals, echoing principles of right to information for consumers or seekers of legal services, etc.[14] The most significant point which can be addressed here is that the Madras High Court ruling in P.N. Vingesh judgement[15] dealt with a matter where the charges were clearly mentioned as if they were fixed and presented an impression of selling of legal services for a monetary or financial consideration which evidently brings disrepute not only to the advertisers, but to the legal professions as a whole. Additionally, it is essential to highlight another point relating to the categorisation of legal services in the mentioned case. Remarks and expressions of appreciation and acknowledgement of superior service quality by certain advocates were highlighted by websites. These websites acted as an indirect medium where the advocates can market their services and people can get the details from the comfort of their homes. If the ratings and service rankings were inflated while projections, a common man may have got swayed to follow the opinions available online without making any further efforts to inquire.

Logically, any ordinary person would define the above marketing strategy as a direct promotional activity.  One may distinguish these factors from the subtle methods with which the advocates may indulge in indirect marketing and interpret the distinction consistent with their personal and fruitful interests. The factors which have contributed to making the rules against solicitation virtually ineffective are not limited to the aforesaid, another fact that becomes relevant here relates to the amendment to Rule 36 on Standards of Professional Conduct and Etiquette, brought in the year 2008. The amendment allowed lawyers to include their professional details on platforms like LinkedIn. This has resultantly led to adoption and evolution of alternative channels for promoting the achievements and success on networking and professional social platforms. The methods have been moulded differently by advocates to suit their requirements and choices and have brought in a time where certain common methods of indirect advertisement have emerged and remain prevalently visible.[16].  

The modern times of technological advancement has created a strong, quick and easy communication set up, with a vast number of public reachable on a click’s distance. The way in which every business conducts its operations and connects with the market or maintains public relations, have radically modernised itself. Attending a larger audience is no longer a dream which would take years of persistence and sweat or exhaustion. As socially concerned persons of a relatively connected profession, lawyers remain no exception to the practice of soliciting works online.  

While online and indirect solicitation of legal works may be criticised by many in professional or traditional circles, the advantages it brings forth for new entrants do not remain unattended. An advocate making his first few steps into the profession may come with challenges, with struggles to get a respectful and dignified recognition amongst circles and public. The difficulty to navigate through and get a decent clientele to meet the ends without relying on others, can be stated to be the plus factors of social media marketing and solicitation. Amongst the scepticism about social media marketing, legal stalwarts have publicly recognised how these advertising could benefit young professional if used for limited purposes and only to a certain extent. No doubt that these thoughts by legal practitioners have come out as a result of reminiscing their own years of struggle and difficulty in establishing a reputation and clientele to earn a decent living.

Restrictions in Other Jurisdictions

The previous sections in this article have majorly focused on the Indian law and regulations stipulated by the Bar Council of India. While for Indian practice the regulatory law indubitably will be the updated and reviewed regulations of BCI, it would also be relevant to highlight and put forth for reader’s attention, a comparison of the Indian regulations with those applicable in other jurisdictions.  

A circumscribed analysis limited to some common law countries can be justified for the simple reason that the Indian courts have shared similar roots of rules of practices in echoing somewhat the same essence of reasons for imposing limitations.[17]

United Kingdom

It will be apt to firstly discuss about the current regulations in the United Kingdom, for providing an idea of a country which has, in some form or other, substantially influenced the development of legal systems in other countries around the globe.[18] One might presume that the UK being the origin of traditional legal practice would be a similarly restrictive country, conservative for barristers or solicitors, as they are usually called, in allowing them to advertise and promote their works in public. But to the astonishment to such beliefs, one may notice that English rules of legal practice are much liberal today than India in terms of permitting advertisements. The law governing advertisement by solicitors in the UK is Solicitors’ Publicity Code, 2016 which under Chapter 8 allows certain information to be shared and it does not prohibit publicity provided the it is not misleading and provides only true and sufficient details so as to facilitate an informed choice by people. Additionally, the Act also mandates mentioning of the fact of association and subservience to regulation imposed by Solicitors Regulation Authority on proprietary interests of the solicitors like letters heads, website and e-mail.[19] Besides these, the solicitors are not allowed to use unsolicited methods of advertising like personally contacting the people for hiring services, with the only exception of personal interactions with current and former clients.[20]

United States of America

Another jurisdiction that is greatly credited for the development of jurisprudence on fundamental and human rights during their early phases after independence from colonial rules is the United States of America. Solicitation by advocates or solicitors in the USA is currently governed by Model Rules of Profession Conduct, 1983. The situation for advertisements by lawyers in USA was somewhat similar to that prevailing in India. The advertisements by lawyers were not considered to be ethical.[21] The situation changed only after the pronouncement in Bates v. State Bar of Arizona[22] rendered by the Supreme Court of US. In the said decision, it was held that blanket ban on advertisement by lawyers was violative of first amendment to the US Constitution which guaranteed free speech to people.[23] The court reasoned that free flow of commercial information in public was valuable for consumer and society at large.[24]Also, the decision was rationalised by distinguishing between true information and misleading advertisements. The court noted that advertisements cannot be suppressed but can be regulated to ensure no misleading information is circulated in public.[25] This means that lawyers in US can advertise and promote their work even through electronic or public media only adhering to some restrictions like no misleading statement to be made; and communication made solely or intentionally for pecuniary gains only.[26]

Canada

Travelling to the neighbour jurisdiction of US, the legal practice regulations in Canada are apparently a blend of strict regulations with certain relaxations. General rules of model conduct have been laid down, but some differences arise depending upon the state level regulations. Model rules of conduct stipulate that the lawyers can disseminate information about their professional services, but the information must be true, accurate, and verifiable; and it must not mislead, confuse or deceive the public, neither should it have the tendency to do so.[27] Moreover, the lawyers cannot categorise themselves as a specialist service provider unless he has been certified in that regard.[28]

Australia

Another major jurisdiction which can help us to better evaluate the Indian rules for advertisement by lawyers is Australia. In Australia, the Australian Solicitors’ Conduct Rules (ASCR) and the Legal Profession Uniform Law (LPUL) regulate professional behavior and legal advertising. Advocates who appear in court are subject to stringent rules about their internet presence.

The landmark case Dow Jones & Co Inc v. Gutnick[29] established that defamatory material published online is actionable in Australia if accessed within its jurisdiction. This ruling means that legal influencers must be particularly careful when commenting on ongoing cases or public figures. Dissemination of information in a manner that upholds the dignity of the profession, avoiding any false claims is therefore permissible.

In the state of Queensland, advertisement by lawyers is governed by Rule 36 of the Australian Solicitors Conduct Rules 2012.[30] They are allowed to publicise their services depending on the pre-condition that such advertisement must not be false, or misleading, or offensive, or prohibited by law. The advertisements cannot either be deceptive and provide the impression of specialist services provided by the lawyers.[31] Also, Section 36 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 states that “A solicitor or principal of a law practice must ensure that any advertising, marketing, or promotion in connection with the solicitor or law practice is not: false; misleading or deceptive or likely to mislead or deceive; offensive; or prohibited by law.[32]

Drawing an inspiration from the above countries while framing the Indian advertisement rule for legal professionals can be beneficial. This suggestion can be justified on the ground that the laws of a great nation like India which has an abundance of legal service providers, must also attempt to align with the global regulations, adopting them in a form that serves the interest of the Indian Society.

Jurisprudential Emphasis on upholding the Ethical Standards

While much has been mentioned about the legal profession and restrictions imposed on the advocates for ensuring integrity and furthering the purpose for which the concept of advocacy was developed, i.e., entitling an equitable and professional representation to all members of the society in matters and disputes concerning them. This proposition can be fortified by drawing attention to the legal aid schemes and constitutional safeguards providing for proper legal representation on behalf the public, including Legal Services Act[33] and enabling directives under Article 39A of the Constitution of India[34] obligating the state to provide free legal support to those in need and not possess the resources to properly voice for their own cause in legal disputes. Significantly resting on the concepts like audi alteram partem, the judicial system is affected to the extreme when its officers are not conducting themselves uprightly. This has been categorically held by the Indian courts that the quality of judicial adjudication and proper administration of justice depends on the legal professionals. This view has been consistently approved of in multiple judgments of the Hon’ble Supreme Court and High Court and at instances strong remarks were made calling for the strict hallmarks of profession to be visible in the conduct of advocates.[35]

In certain cases, the Hon’ble apex court has gone onto the extent of expressing grave concerns about the recently followed trends and activities of legal professionals. The most suitable decision which is relevant for the present subject of evaluation is R.K. Anand v. Delhi High Court[36] wherein the court deprecated the conduct of even the conferred senior advocates or other advocates involved in matters involving high stakes. The interviews offered by lawyers of long standing were seen with a sense of suspicion and doubts.[37]

Conclusion

While the express rules of professional standards prohibit advocates from soliciting or advertising directly or indirectly, the rules were amended in the year 2008 allowing certain details of practice to be shared on public/networking platforms online. This relaxation of rules has resulted in providing freedom to solicit works subtly and indirectly. By sharing their success stories with others, narrating experience, sharing anecdotes from profession, the advocates may be advertising their personality and identity as legal professionals, and moreover may make financial gains out of them. But these acts do not lead to disciplinary actions and are defended on the grounds of spreading information and helping people educate themselves about their rights and promoting legal literacy. Recent trends of some people spreading bogus legal claims under the guise of legal literacy has been emphasised to be seen with an eye of caution. Hon’ble Justice BV Nagarathna has also raised her concerns over such practices while speaking at a convocation ceremony.[38] Hon’ble Justice Nagarathna advocated for a balanced approach in the practice of law, ensuring the interests of both the clients and judicial machinery are protected by them.

Undoubtedly, the legal education will be promoted, and people will become aware about their rights better than before, but there needs to be a balance of interests which needs to be measured and implemented in every case. In the guise of education and freedom of expression, legal professionals should not be allowed to indirectly promote their services. Overuse of social network platforms may lead to disregard for those practitioners who may be equally capable of serving the interest of any client and representing their cause before court of law, but are ignored due to their absence on social media by following professional standards very strictly.

The present generation is most affected by the trends and practices of sharing, highlighting and posting about achievements on social networking platforms. While this has been considered essential in the currently technology driven world to build and maintain connections, this has resulted in students and young graduates dedicating more time to preparing posts for highlighting success story, rather investing the initial service period in helping people out and exemplifying the true spirit of legal professions, that is to serving justice and standing for a large societal cause. Recently, somewhat similar practices of over reliance on social media and networking tools have been cautioned against by the Hon’ble CJI Mr. Sanjiv Khanna, while he was delivering an address during a convocation ceremony, observing that the role of networking is crucial in building a career, but the invaluable and eternal principles of self-discipline and hard work must never be forgotten by any upcoming professional in dealing with the occupational affairs,[39]

Many may put forth the claim that branding has become a quintessential part of any occupation in the present society. Creating a visibly relevant brand image is the need of the time for not only thriving but also surviving. Acceleration of personal branding for success cannot be overemphasised in a market exclusively concerned with commercially effective results. But, the uniqueness of practising law must not be viewed from same aspect. Lawyers were meant to secure and assist in the administration of justice and standing for socially relevant causes. The state of legal profession today should be viewed only through the lenses of nobility and seriousness associated with it. The uniqueness of law as a class of profession was categorically emphasised in Re: Ministry of Information & Broadcasting case[40] where it was declared to be a noble calling and its practitioners are honourable members of steering the administration of justice who set the foundation of a civilised society and responsible citizenry.  

At the end, this piece of writing must end by recalling the words of Justice Krishna Iyer, that the standards of legal profession are not set by rules and statutes, but the “canons of conscience of ethics and propriety” in modern age of practice.

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* Third year student of law; Pursuing BBA. LL.B. (H) from Amity University Chhattisgarh

** Second year student of law; Pursuing BA. LLB. From Adv. Balasaheb Apte College of Law, Mumbai

[1] Ms. Isha Kalwant Singh, “Advertising By Legal Professionals” (Oct – Dec, 2016) Bharati Law Review, https://docs.manupatra.in/newsline/articles/Upload/C74B86B2-2614-4B56-A50D-8D498A841418.pdf

[2] Ebad Ur Rehman, “Rethinking Marketing For Lawyers In Modern India”, (LiveLaw, 24 January 2023) https://www.livelaw.in/columns/bar-council-of-india-rules-advocates-act-lawyers-legal-services-regulation-act-219754

[3] Vasanth Rajasekaran and Harshvardhan Korada, “Digital Solicitation and Advertising: Everlasting Legal Controversies” (SCC Times, 21 July 2024) https://www.scconline.com/blog/post/2024/07/21/digital-solicitation-and-advertising-everlasting-legal-controversies-experts-corner/

[4] (2020) 3 SCC 637

[5] Taniya Malik ‘THE LEGALITY OF INTERNET SHUTDOWN IN INDIA: ANURADHA BHASIN V. UNION OF INDIA’ [Winter Issue 2022] ILI Law Review 412

[6] Supra Note 3, at para 26; also see ibid note 4, at p. 416

[7] 2024 SCC OnLine Mad 2770

[8] The Advocates Act, 1961 Act No. 25 Of 1961, S. 35

[9] Accessible here: <https://www.livelaw.in/pdf_upload/press-release-dated-08072024-548486.pdf>

[10] Harshima Vijaivergia and Smita Pandey, “Rethinking the Prohibition on Advertising for Advocates” Manupatra Articles (December 27 2021); accessible here: https://articles.manupatra.com/article-details/Rethinking-the-Prohibition-on-Advertising-for-Advocates

[11] Luthra and Luthra Law Offices v. CIT, 2018 SCC OnLine ITAT 6058

[12] (1976) 2 SCC 291

[13] Ibid, at para 25

[14] Ms. Isha Kalwant Singh, “Advertising By Legal Professionals” (Oct – Dec, 2016) Bharati Law Review, https://docs.manupatra.in/newsline/articles/Upload/C74B86B2-2614-4B56-A50D-8D498A841418.pdf

[15] Supra note 6

[16] Ashish Kumar and Urja Joshi, “Soliciting And Advertising By Lawyers” (19 June 2023) https://www.livelaw.in/articles/soliciting-and-advertising-by-lawyers-scaora-230898#_ftn1

[17]Justice N. Kotiswar Singh, “Evolving role of Legal Professionals/Institutions” <https://jkhighcourt.nic.in/doc/upload/speeches/Evolving%20Role%20of%20Legal%20Professionals%20Final.pdf>

[18]<https://www.commonwealthofnations.org/?sectors=business/legal#:~:text=The%20vast%20majority%20of%20legal,law%2C%20customary%20law%20and%20Shariah.>  

[19] Supra note 1

[20]Solicitors Regulation Authority (16 December 2019) accessible here: <https://www.sra.org.uk/solicitors/guidance/unsolicited-approaches-advertising/>

[21] Supra note 1

[22] 433 U.S. 350

[23] constitution.congress.gov; Constitution Annotated Analysis and Interpretation of US Constitution;  Accessible here: https://constitution.congress.gov/constitution/amendment-1/ , see also constitution.congress.gov; Constitution Annotated Analysis and Interpretation of US Constitution; Browse the Constitution Annotated; Amdt1.1 Overview of First Amendment, Fundamental Freedoms; accessible here: https://constitution.congress.gov/browse/essay/amdt1-1/ALDE_00000210/

[24]  Studicata; Brief of Bates v. State Bar of Arizona; accessible here: <https://studicata.com/case-briefs/case/bates-v-state-bar-of-arizona/>

[25] ibid

[26] Supra note 1

[27] The Canadian Bar Association, The Rules of Advertising; accessible here: <https://www.cba.org/Publications-Resources/Practice-Tools/Ethics-of-Advertising/The-Rules-of-Advertising>

[28] id

[29] [2002] HCA 56 (10 December 2002)

[30] Queensland      Society; accessible here: https://www.qls.com.au/Practising-law-in-Qld/Ethics-Centre/Rules-Resources/What-are-the-rules-about-solicitors%E2%80%99-advertising-g

[31] id

[32] Harshima Vijaivergia and Smita Pandey, “Rethinking the Prohibition on Advertising for Advocates” Manupatra Articles (December 27 2021); accessible here: https://articles.manupatra.com/article-details/Rethinking-the-Prohibition-on-Advertising-for-Advocates

[33] The Legal Services Authorities Act, 1987 (Act No. 39 od 1987)

[34] The Constitution of India, art. 39A

[35] Sanjiv Datta, Dy. Secy., Ministry of Information & Broadcasting, In re, (1995) 3 SCC 619; also see Amit Chanchal Jha v. High Court of Delhi, (2015) 13 SCC 288

[36] R.K. Anand v. Delhi High Court, (2009) 8 SCC 106

[37] Id. At paras 331-333

[38] Anmol Kumar Bawa, “Justice Nagarathna Expresses Concerns About Lawyers Soliciting Clients By Spreading Fear Through Social Media” (14 September) https://www.livelaw.in/top-stories/justice-nagarathna-expresses-concerns-about-lawyers-soliciting-clients-by-spreading-fear-through-social-media-269644

[39] Anmol Kaur Bawa, “Need Not Be Aggressive To Succeed In Litigation; Be Authentic : CJI Sanjiv Khanna To Law Students” (15 February 2025)https://www.livelaw.in/top-stories/need-not-be-aggressive-to-succeed-in-litigation-be-authentic-cji-sanjiv-khanna-to-law-students-284056

[40] Sanjiv Datta, Dy. Secy., Ministry of Information & Broadcasting, In re, (1995) 3 SCC 619 [para 20]