The Legality of Advertising in the Legal Profession

Introduction

It is illegal in India to advertise the legal profession. Even if a lawyer presents a compelling case in court, the newspaper may cover the story, but including the lawyer’s name will be frowned upon. According to Lloyd Pearson, a London-based Legal Directories Consultant, India possesses the majority of the world’s attorneys, yet we know very little about Indian law firms; everyone would be better served if we understood more about the Indian legal market. A customer shopping for a car has access to more information and research resources than a lawyer handling litigation.

Advertising has a negative impact on legal professionalism. This can do serious injury, as a lawyer’s sense of dignity and self-worth can be undermined by a lack of professionalism. Other factors include the advertisement’s deceptive character and a decline in service quality. The fact that the legal profession is regarded as a noble profession contributes to this negative impression of prohibition. The prohibition was lifted in 2008, when the Bar Council of India enacted a resolution allowing lawyers and law firms to have a website with contact information, qualifications, and areas of specialty; before that, there had been a blanket prohibition on advertising.

Despite the fact that legal practitioners in India are prohibited from promoting, many lawyers do so through visiting cards, seminars, and felicitation ceremonies, as well as distributing circular letters or election manifestos with their name, address, and profession emblazoned on them. Despite the fact that lawyer actions attract the BCI regulations and are in violation of them, the implementation flaws always allow them to go unnoticed.

The Legal Background

The Bar Council of India (BCI) has the authority under the Advocates Act to adopt rules in order to carry out its statutory obligations, and it has done so via the BCI Rules. According to Rule 36 of the BCI Rules, an advocate is prohibited from directly or indirectly soliciting work or advertising, whether through circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, providing inspiring newspaper comments, or producing photographs to be published in connection with cases in which he has been engaged or concerned.[1] Even an advocate’s signboard, nameplate, or stationery should not state that he is or has been the President or Member of a Bar Council or Association, or that he has been associated with any person or organization, or with any particular cause or matter, or that he specializes in any particular type of work, or that he has served as a Judge or an Advocate General.

The Rule was revised in 2008, following a resolution passed by the BCI on April 30, 2008,in front of a three-member bench of the Apex Court.[2] According to the modified Rule, advocates are permitted to post information on their websites in accordance with the Schedule, which allows for the posting of the following material on websites:

1. Name

2. Address, telephone numbers, e-mail IDs

3. Enrolment number, date of enrolment, name of the State Bar Council were originally enrolled, name of the State Bar Council on whose roll they currently stand, name of the Bar Association of which the advocate is a member

4. Professional and academic qualifications

5. Areas of practice

Legal experts who post the above-mentioned information on their websites must also sign a declaration stating that the information they offer is accurate.

In the case of Government Pleader  v. S.A Pleader, it was determined that a pleader sending a postcard with only his address, name, and description constituted an advertisement on his side and that he had breached professional rules of conduct for advocates.[3]

 In the case of In Re: (Thirteen) Advocates v. Unknown, it was determined that posting articles in newspapers describing oneself as an advocate practicing in courts is an inexpensive method of promoting one’s services.[4]

In S. K. Naicker v. Authorised Officer, the Madras High Court held that an advocate’s signboard or nameplate should be of moderate size, and that writing articles for publication in the newspaper under an advocate’s signature is a breach of professional etiquette, as both actions constitute unauthorized legal advertising.[5]

Position in Different Countries

Countries such as the United Kingdom and the United States have eased the restrictions placed on lawyers in terms of legal advertising by implementing laws that ensure a uniform size and type of advertising. Although it is a riskier operation in which the bad influence of ads may overwhelm the good elements, there is no assurance that it will be particularly successful in India simply because it has been successful in other nations. But, since then, the government has refrained from implementing additional laws with harsher consequences, citing considerations such as risk and the likelihood of failure.

United States of America

The situation in the United States was comparable to that in India until 1977. The American Bar Association’s Professional Ethics Ordinance 27 declared that soliciting professional employment through ads was unethical. Following the US Supreme Court’s ruling in Bates v. State Bar of Arizona, it is now a constitutionally protected right. [6]The Model Rules of Professional Conduct, 1983 govern legal professionals’ advertising in the United States. A lawyer may promote his services by written, recorded, or electronic communication, including public media, in accordance with the Rules, provided that the following requirements are met:[7] There should be no inaccurate or misleading statements made about the lawyer or the lawyer’s services.

United Kingdom

Due to outdated Victorian ideas, the United Kingdom has outlawed the advertising of legal services. However, in 1970 and 1986, the Monopolies and Mergers Commission and the Office of Fair Trading published reports highlighting the advantages of allowing legal services to be advertised. This turned the situation in the UK on its head, and old Victorian assumptions were disproved. The Solicitor’s Publicity Code, 1990, governs the advertising of legal services in the United Kingdom, and it has been revised on a regular basis. According to the Code, legal services advertisements must not be deceptive and must give adequate information to enable customers to make an informed decision. As a result, the clients’ right to information is addressed. The Code further stipulates that the lawyer’s fees may be included in the advertisement, provided that the costs are not dangerously low, and that the advertisement is accompanied by a statement that extra fees may be imposed.[8]

Social Media Age

In today’s Covid environment, when working from home and holding virtual meetings are the “new normal,” Lawyers from all over the world are hosting free and paid webinars on various social media platforms, discussing various elements of the law. When discussing the subject with young attorneys and law students, it is not uncommon for them to divulge the cases they have contested as well as a few pieces of information about the case. It’s a dangerous slope because, under the pretense of providing legal instruction through these webinars, they’re engaging in advertising, which may be considered professional misconduct. Social media usage is not irregular in nature.

According to a 2012 study, almost 85% of legal firms in the United States utilize social media for marketing. The fact that the number of young attorneys entering the sector has increased is a necessary conclusion. It is apparent from judicial decisions and bars council guidelines that the attitude toward advertising is strict, with attorneys receiving little to no compensation. Law firms and attorneys, on the other hand, have broken the laws and are frequently caught participating in indirect promotion by sponsoring conferences and publishing prizes on their websites. For example, legal firms throughout the country use social media networks like LinkedIn to announce award winners. A statement such as “Best corporate practice in India” must be created as advertising that impacts a large number of clients. Distribution of Diwali gifts to clients and potential clients with goods with the firm’s engraved logos is a typical practice among legal offices in India. The Income Tax Tribunal has ruled that sponsorship activities by legal firms are a form of marketing in a recent court case of Luthra & Luthra Law Offices v. JCIT, (2018) Income tax Tribunal (India).[9] The Tribunal viewed event sponsorship as an act of boosting the firm’s worth and a violation of the regulations. Lawyers all around the country are using social media sites like Face book, Instagram, LinkedIn, and Twitter to provide details about their lives and cases.

Conclusion

Lawyers had two sets of responsibilities, one to the court and the other to the public; these responsibilities also included some rights. And as long as these rights do not conflict with either set of responsibilities, the attorneys are completely capable of exercising them. A fair breadth of advertising can survive without jeopardizing the Profession’s honor. Several other relevant problems, such as printing pamphlets for distribution at seminars and having insertions in online legal dictionaries, were not addressed by the court in the case of V.B. Joshi v. Union of India, and the modification only applied to online ads.[10]

In this age of globalization, where ads and promotions serve as weapons for professionals, they also serve as shields for service consumers. Advertising limitations in the legal industry are not beneficial to either attorneys or clients. It is past time for the responsible authorities to recognize this and put a stop to this antiquated practice. Only then can the twofold advantage, both to attorneys and to customers, be fully realized.


[1]https://indiankanoon.org/search/?formInput=rule%2036%20of%20bar%20council%20of%20india

[2]https://www.legallyindia.com/images/stories/BCI%20rules%20on%20advertisement%20websites%20from%202008.pdf

[3]https://indiankanoon.org/doc/1701219/#:~:text=S%20a%20District%20Pleader%20holding,of%20accounts%20of%20wakf%20properties.

[4]https://indiankanoon.org/doc/1366521/#:~:text=In%20Re%3A%20(Thirteen)%20Advocates,Unknown%20on%203%20September%2C%201934&text=1.,the%20last%20Bar%20Council%20elections.

[5]https://www.indialegallive.com/top-news-of-the-day/news/punjab-haryana-bar-council-warns-lawyers-against-using-social-media-to-solicit-work/#:~:text=In%20SK%20Naicker%20Vs%20Authorised,amount%20to%20unauthorised%20legal%20advertising.

[6]https://supreme.justia.com/cases/federal/us/433/350/

[7]Rule 7.2, Model Rules of Profession Conduct, 1983

[8]Rule 8.1, 8.7,8.9 Solicitors’ Publicity Code, 2016.

[9]https://indiankanoon.org/doc/112037349/

[10]https://www.livemint.com/Politics/BfkOFDobWdlD34MuoMBhII/SC-to-consider-Bar-Council-plan-on-lawyers-advertising-onlin.html

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