Advertising by Advocates: Advertising by Advocates: A Critical AppraisalA Critical Appraisal

By – Mayank JainNational Law University, Jodhpur

A little idea of the existing A little idea of the existing Legal MarketLegal MarketEstimations put the current size of legal

off shoring in India at 61 Million $, to become ONE BILLION by 2015.

Britney Spears at a mere 36 Cents, while “Mesothelioma Attorney Texas” was at 65 $ on google AdSense.

Currently, advertising in all forms is prohibited in India vide Rule 36 of the BCI Rules.

Therefore, the question being, should legal services be allowed to be marketed?

Rule 36 – What is it?Rule 36 – What is it?Genesis: Borrowed from the Victorian Era.

What it means: Rule 36 restricts advertising by lawyers in all forms.

The rule states that a lawyer cannot solicit

work directly or indirectly in any medium whatsoever.

“Indirectly” interpreted in a strict sense does not permit business cards, directory listings or seminar ceremonies and any felicitations. No personal communication, touts, manifestoes allowed. All possible means of communication with a prospective client are blocked. Restrictions on the size of name boards also.

Judicial opinion on Rule Judicial opinion on Rule 36. 36. The Courts have taken a rather archaic view

of this rule. In the case of BCI v. M.V. Dhabolkar, the court held that:

◦ Law is not a trade, not briefs, not

merchandise, and so the heaven of commercial competition should not vulgarize the legal profession.

◦ Also Justified on the grounds of Public

Policy and Dignity of Profession in Indian Council of Legal Aid and Advice v. BCI

◦ self advertising tends to lower the dignity

of this honorable profession – In Re: Thirteen Advocates

Quality of lawyers work is enough to get him publicity. Commercialization might lead to unethical practices.

Even if advertising is allowed, albeit

regulated, it shall be impossible for the BCI to keep tabs on all advertisements.

People would go to the lawyer having

fanciest media coverage, and not the competent lawyer.

Lastly, lawyers would start “price-cutting”

and “bargain deals” to remain competitive. Hence, this would decrease the quality of the legal fraternity on a whole.

BCI should Shed the BCI should Shed the “Protectionist”“Protectionist” stand. stand.

The Concept of “Informed Choice”

◦ Competition fosters better service and fairer prices.  The consumer always wins when there is competition and ADVERTISING FOSTERS COMPETITION.

◦ Informed choice is a right of a consumer. Ban on advertising leads to depriving consumers of valuable information about the advocates. This results in a situation where consumers cannot make an informed choice from the market since information relating to the service is not available to them.

Protectionist stand - Protectionist stand - ContinuedContinued The observations of the Supreme Court in

Tata Press Ltd. v. Mahanagar Telephones Ltd has recognized the importance commercial speech and the right to advertise - not only to the advertiser but also the consumer. The Court observed:

◦ Advertising is considered to be the

cornerstone of our economic system. Low prices for consumers are dependent upon mass production, mass production is dependent upon volume sales, and volume sales are dependent upon advertising.

Is the profession a Is the profession a “SERVICE?”“SERVICE?”The view that the legal profession is a

service has been reaffirmed by the Judiciary in umpteen cases. It is a settled position of law that the legal profession is a service for the purpose of the consumer protection act. –

K. Vishnu v. National Consumer Disputes Redressal Commission & Anr, P. Krishna Rao v. Mandipalli Devaiah

The very nature of legal services has shifted

since globalization. The profession has acquired the nature of a consultancy business.

Therefore, with the legal profession getting the characteristic of a service, it is all the more important to give marketing its due recognition.

Bangalore Water Supply and Sewerage Board v. A. Rajappa, the Supreme Court opined that legal profession is covered under the definition of the term Industry under the Industrial Disputes Act.

WTO Sectoral List recognizes the legal

profession as a service.

Thus, it could be concluded that legal services are becoming subject of trade related laws and hence, marketing should be given its due recognition.

Position in other CountriesPosition in other Countries

The US, for example allows for full blown advertising, the restriction was removed in the case of Bates v. State Bar of Arizona.

The UK, from where this rule is borrowed,

allows for advertising of solicitors, albeit with certain restrictions. (The Solicitors Code of Conduct, 2007). This restriction, however, was removed way back in 1988.

Barristers are also allowed to engage in advertising or promotion, which conforms to British Codes of advertising and sales promotion Its pretty common to see leaflets, brochures etc.

In Italy, The Bersani Decree of 2004 legalizes advertising. The same is prevalent in Germany, France etc, mostly all over Western Europe.

Asian Countries such as Hong Kong, Singapore and Malaysia have relaxed their regulations on legal advertising in the wake of globalization. Malaysia has ratified legal advertising by means of Malaysia Legal Profession (Publicity) Rule, 2001.

Regulated AdvertisingRegulated AdvertisingAdvertising, if allowed, should be regulated.

It cannot be unfettered, lest it will work to the disadvantage of the consumer. This kind of a restriction is a reasonable one and falls under Article 19(6) of The Constitution of India.

w.r.t the changing demands, the BCI has made an amendment in Rule 36 which allows for lawyers to put their information on websites; in a prescribed format by the BCI. Contravention leads to a disciplinary action.

However, why only websites? Why not print media? Or any other means of information? A lacuna, but, still a step forward.

THANK YOUTHANK YOU