Advertisement By Lawyers – Enforceability Of “Prohibited Solicitation”
Author: LawSphereX
Category: General Law
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ADVERTISEMENT BY LAWYERS – ENFORCEABILITY OF
“PROHIBITED SOLICITATION”
Rakshit Kumar Jha, BML Munjal University, Gurugram, Haryana
ABSTRACT
It is a well-known fact that the legal professionals or the legal profession in itself have been acknowledged and admired as a noble profession in the last few decades. The profession is portrayed as a platform which is not only justice-centered, but also a field which provides service to the individuals of society in a fair manner. However, there is a central issue related to the field of law which has long remained unanswered, that is, advertisement by the lawyers, which as per the statutory provisions is restricted. The said restriction has been placed in order to prevent commercialization of this profession and also to preserve the dignity of this profession. In this paper, we will be looking at and analyzing the extent of enforceability on prohibited solicitation that is expected and required to be followed by advocates.
This would also include looking at the historical perspective behind putting prohibition on advocates to advertise in relation to ethics, the view opted by the judiciary, global methodology opted by different nations with regards to advertisement by lawyers, and analyzing the shift that has taken place in this prohibition post the introduction of digital platforms, specifically, LinkedIn. Lastly, we will discuss the changes or reforms that should be opted on in the current Statute for strengthening its enforceability and implementation. Traditionally, the lawyers were not allowed to advertise in order to prevent any kind of unnecessary competition among the other advocates, however, certain liberty was provided to the advocates which led to providing freedom and liberty to law offices, law firms and such chambers of advocates to share basic information on their websites.
However, at the same time, the rapid shift of the individuals towards social media and digital platforms, specifically, platforms like that of LinkedIn, has led to some requirement of re-evaluation in the provisions laid down under the Statute.
Restriction on Advertisement by Advocates - History: The legal field or the profession of law has never been witnessed as a commercial transactional field but as a profession which needs to cope with public trust and ensure that justice is being served to the people of society without any kind of biasness. The legal framework within India has been inherited from the British Raj period. In those times, advertisements by barristers, or solicitors were not permitted. This was done to maintain the dignity of the profession amongst the people. It was presumed and believed by the Britishers that advertisement by such professionals may lead to discouraging the trust of people and hence, it would limit the image of such barristers to only mere commercial operators, therefore, it was strictly prohibited for such professionals to advertise about their practice.
It was perceived by the Britishers that advertisement would lead to as a self-serving activity and therefore, the ultimate idea of serving justice and fairness to the people would be failed. Further, post-independence period, such practice was codified in the form of statutory framework by the Parliament as the Advocates Act, 1961 (hereinafter referred to as the “Act”). The Act was codified along with the Bar Council of India Rules (hereinafter referred to as the “BCI Rules”). In the said Act and Rules, the same prohibition was provided with legal support and advertisements were prohibited under these frameworks too. The BCI Rules1 have strictly prohibited lawyers from advertising either directly or indirectly, and from any such means like – media, circulars, or personal communications.
This has been considered as professional conduct that is to be followed by the lawyers, and if there is any violation of such professional conduct then, such advocates shall be punished as per the provision laid down under the Act. 2 Then, in terms of ethics, the principle of not letting the advocates advertise holds the value that the lawyers should uphold the integrity and dignity of the profession. For instance, if there is an advocate who advertises about their office/firm, and if such an advertisement is exaggerating in nature, then, it would lead to a situation where there would be a tussle and compromise between the values that this profession holds and the financial gain that such individual will make from such an advertisement.
The intention of the parliament behind enforcing the BCI Rules was to ensure that the lawyers are focused on their ultimate duty of serving their clients by way of providing justice to them, and not to indulge and make this profession a commercial venture like the other sectors. The field of law is aimed at seeking protection for such clients,
1 Rule 36, Bar Council of India Rules
2 Section 35, Advocates Act, 1961
specifically those clients who are unfamiliar with the legal procedures, ones who cannot afford the high expenses borne in this field, and to protect such clients from the exaggerated advertisements promoted by such lawyers. Further, advertising in this profession is also prohibited for the reason that there is no inequality between the professionals in this profession. For instance, lawyers having strong family background in the same profession, or having greater financial resources have high chances of dominating the market, hence, creating a disadvantageous position for such lawyers who are not at such position or benefit.
Therefore, in order to ensure that success in this field is determined through merit and reputation of such lawyers individually, and to deter such determination to be based on market forces, advertisement by lawyers also falls under the ambit of ethical misconduct. Judiciary’s View: The apex court of India, too, has supported the notion of prohibition on advertisements by lawyers in multiple cases. The hon’ble court has upheld the provided restriction for the fact that it is essential in order to preserve the nobility and sanctity of the profession. In the case of Bar Council of Maharashtra v. M. V. Dabholkar3, it was observed by the court that the legal profession is a noble profession and should not be considered as any field of conducting trade or any such business. It was held by the court that, “....
the law is not a trade, briefs no merchandise, and to the heaven of commercial competition or procurement should not vulgarize the legal profession. ” Further, in another case of Ram Niwas Sharma4, the hon’ble Punjab and Haryana High Court held that, “.... an advocate is the officer of the court and as the legal profession is a noble profession, it does not constitute a trade or business. ” Then, in another case of Government Pleader v. S. A. Pleader5, the hon’ble court observed that even sending a postcard which contains the details and information about a lawyer like – his contact, information, name, or description would also amount to violation of the professional standards and would fall under advertising. Also, in one of cases of S. K.
Naicker it was held by the hon’ble High Court of Madras that any act of writing articles that is published in newspapers and is under an advocate’s signature would also fall under the ambit of unauthorized legal advertising6. In all the above-mentioned cases, one rational that is commonly viewed by the courts behind putting prohibition on advocates for advertising, that is, the legal profession is
3 1976 SCR (2) 48
4 Ram Niwas Sharma, Advocate Petitioner v. State of Haryana (2003)
5 AIR 1929 Bom 335
6 https://articles.manupatra.com/article-details/Rethinking-the-Prohibition-on-Advertising-for-Advocates considered as a job of and for public service and should not be equated to that of any other trade or commerce practices. However, there was an amendment in the BCI Rules in the year
2008. The post-amendment did not bring much of a change in the said prohibition but provided
the lawyers with some level of liberty for the purpose of advertising. This would be discussed in the latter part of the paper. Advertisement by Lawyers in Other Countries: The scenario of advertisement by lawyers in other countries, although strict, but are in favor of the clients as it provides them with a greater access to legal information and services. Hence, in other countries advertisements are used in a positive manner to strengthen the lawyer-client relationship. It has been stated by the supporters of lawyers’ advertising that such relaxation would provide a potential benefit to both – the clients as well as the lawyers. The American Bar Association (ABA) Model Rules in the USA permits the lawyers to advertise but, only till the extent till which it falls under the ambit truthfulness.
Similarly, the Solicitors Regulation Authority (SRA) in the UK also allows the lawyers to advertise but, restricting them to adhere to the transparency and fairness principles. Hence, in both – UK and USA, advertisement by lawyers is not prohibited but are being regulated by their respective codes or Statute7. Then, in Singapore also, the lawyers are provided with the freedom to advertise either by their own self or by their employees, or by their agents. Also, in Hong Kong the advertisement by lawyers is ban through televisions, radio, and cinemas; however, they are allowed to advertise by way of print media. Hence, in all of the above given examples, it is clearly evident that there is no such strict prohibition upon the advertisement by lawyers, but such freedom is being regulated by their own respective regulations.
It can be said that if such prohibition is removed it can lead to democratizing legal access to almost all the individuals of any State, and in case if not to all the individuals, then, the majority of individuals of any such State. If allowed and properly regulated, advertisement can bridge the gap between lawyers and clients, especially the underserved communities, it could also help in enhancing transparency and empower the individuals to make more informed decisions in different situations. However, it is still a question that is left unanswered whether such prohibition is being removed then will the ethical values of public serving that this profession holds would continue or not, and if not then till what extent such commercialization can assure that there is no misinformation being spread 7 https://theamikusqriae.
com/legal-marketing-in-india-navigating-the-boundaries-of-lawyer-advertising/#_ftn8 by such lawyers. BCI Rules Amendment (2008): It has already been discussed earlier that Rule 36 of the BCI Rules prohibits lawyers from advertising either directly or indirectly. However, the post emergence of digital technology and globalization, it has been a challenge to the legal profession to cope and align with the modern realities while following the traditional practices. The 2008 amendment of the BCI Rules witnessed a significant shift in Rule 36 as it allowed limited form of advertisement by the lawyers. The 2008 amendment allowed or permitted the lawyers to share “limited information” about their offices/firms which included the professional qualifications of such lawyers and the practice areas of such lawyers to be advertised on their respective websites.
Hence, what was being permitted post 2008 amendment was – name and contact information of the lawyer or firm, academic qualifications and areas of specialization, and memberships in bar associations or professional organizations, if any8. This amendment can be said to be the need of the hour for the legal profession during that time. The amendment led to the modernization of the profession by giving some extent of leverage to the lawyers to advertise upon the internet for the purpose of information only, and at the same time, to also maintain the ethical code of conduct provided under the Act as well as the BCI Rules. Hence, it can be clearly witnessed that although the amendment provided the leverage to lawyers to display only factual and objective information on the websites, to make it more convenient for the clients to make a more informed decision.
At the same time, the amendment also explicitly prohibited any display of promotional content, or direct solicitation, or exaggerated claims and promises about their practice on such websites. The impact of this amendment was quite positive for the profession as it displayed a significant milestone achieved by coping up with technological advancement. Further, this also helped in increasing accessibility to people of India at a national level. For instance, if there is a small town or some village area and in case any individual needs to consult any lawyer for any of their issues, they can quickly find the nearest advocates around them and hence can make a more informed decision.
Such is possible only after the 2008 amendment as such access to information was not available to the people residing in rural or undeserved areas and hence, they were not in a position to find any of their legal presentation. Also, by the introduction of
8 https://www.barcouncilofindia.org/info/bar-counci-g36acc
limited information to be provided on the websites by lawyers or law firms, India is now in a position to strongly compete with other nations like – USA and UK where also such similar permission is being given to be regulated by strict guidelines. Adding to this, the amendment has also brought opportunities for first-generation lawyers, and boutique law firms to establish their presence in the playing field of this profession. However, “as all good things have their own cost”, similar is the case in this situation too. The said amendment has also imposed certain major challenges on the Bar Council of India. This is for the fact that the line between the permissible information sharing on websites and prohibited solicitation has now become more blurred with regards to social platforms, specifically, in case of platforms like – LinkedIn.
Further, according to me, the said amendment of 2008 has also brought some unexpected problems in this profession. For instance, since the permission of advertising being granted post 2008 amendment, some lawyers have taken support of third-party websites/platforms in order to promote themselves. Further, the benefits of such advertisement permit can be utilized at the optimum level only by the lawyers in the urban areas, and for lawyers practicing in rural areas, advertisements even if it is being permitted till some extent now, such advertisement is not possible as they are not aware or not having the proper required knowledge of such technological advancement in this field. Hence, it becomes a situation where indirect advertisement by lawyers, which is banned as per the BCI Rules, is constantly being increased post 2008 amendment.
Though there has been shift in the legal field with the latest technological advancement, there is a necessary balance that needs to be maintained by the lawyers. Hence, the recently amended regulation needs to be balanced in order to determine the extent of permission to advertisement by lawyers and such prohibition on them. Therefore, it can be stated that the blended mixture of evolution of digital technology (like – LinkedIn) with that of the legal practice in India needs to be re-considered keeping in mind the age-old traditional values and norms that is being held by the legal profession in India. Judicial View Post 2008 Amendment: time. In the case of Tata yellow Pages v.
MTNL10, the main question that was been raised before the hon’ble court was related to the interpretation of article 19(1)(a) of the Constitution and if advertisement by lawyers was covered under the ambit of such right. It was held by the hon’ble court that “.... article 19(1)(a) discusses about the freedom of speech and expression, and advertising too, is a form of commercial speech and hence, falls under the ambit of the said right..... However, at the same time, such right has to viewed in parallel with reasonable restriction provided under article 19(2)..... ” Now, by such interpretation provided in the case of Tata Yellow Pages (supra) the Court clarified that how the reasonable restrictions as that of prohibition on advertisement is valid and within the ambit of the BCI Rules.
It was also observed by the hon’ble court that if such advertisement is deceptive, or misleading, or unfair in nature then also it can be prohibited as per the BCI Rules. Then, in another case of S. Mohan Lal11 the hon’ble Supreme Court was raised with the question if the legal profession falls within the ambit of “business” or not. The hon’ble Supreme Cout held that, “.... the term “business” means everything that occupies time, attention and labor of men, for the purpose of livelihood or profit, and the practice of law for that purpose can be considered to be as business.... ” In this case too, the interpretation of the Court meant that profession of law can be considered to be as business but not to be considered as pure business as it is not done solely for the purpose of making profit and also includes the essence of public service.
Further, the courts have also observed that though the profession of law or the legal field is not a trade in nature, the lawyers should still follow the practice of disseminating only truthful and non-misleading information on their websites12. This will help the individuals in making better and informed choices for themselves in more easy way. Then, during the time period of COVID-19 pandemic also, several major challenges were faced by the professionals in law. A petition was filed before the hon’ble Supreme Court by group of such lawyers which requested the court to provide with some more relaxation and leverage to the prohibited advertisement provision under the BCI Rules13.
It was argued by the petitioners that during such time of pandemic, it was quite necessary for the lawyers, specifically such lawyers who do not have a very strong client connection and client acquisition, to provide the with sone relaxation so that these lawyers can survive in the field of legal profession during
10 1995 SCC (5) 139
11 S. Mohan Lal v. R. Kondiah 1979 SCR (3) 12
12 https://articles. manupatra. com/article-details/Rethinking-the-Prohibition-on-Advertising-for-Advocates 13 https://www. linkedin. com/pulse/advertising-legal-profession-challenge-freedom-vishesh-pandey-xei9f/ such economic and global level shutdown. To this, a notice was sent to the Bar Council of India from the side of the hon’ble Supreme Court with regards to the said requested relaxation, however, no such very strong step or reply was being provided from the side of the Bar Council of India. Therefore, it is clearly evident that the court proved itself to be of quite success in order to maintain a balance between the ethical norms followed in this profession with that of the recent technological advancement adopted by this field.
The courts upheld the validity of rule 36 of the BCI Rules and considered it of utmost importance in order to safeguard it against the law to be turned only as a mere commercial transaction. At the same time, the courts have also identified that if such advertising is being regulated (post 2008 amendment) then it will be of equal help to the people of India for accessing justice in India. Hence, the legal framework of this profession in India is both – ethically promising as well as adaptable to change. The Recent Shift in Advertising on LinkedIn – A Commercial Digital Platform: As discussed above, advertising by lawyers was barred and viewed as an ethical constraint, the introduction of digital platforms, specifically LinkedIn, has changed the scenario to a great extent.
LinkedIn is a platform where lawyers can create their profiles and highlight their educational qualifications and areas of practice and work experience in the said area. Now, all of these are permitted as per the BCI Rules14, however, at the same time, the additional option provided by the platform is engaging with peers, clients and widening their profiles. This option is being optimally utilized by lawyers. Lawyers, by the option enabled by LinkedIn, can engage with their peers and clients, they can also post on their profiles about their recent endorsements, recommendations, and other similar things15. These constitute to be self-promotion and that is not allowed as per the provision of the BCI Rules. It can be commonly witnessed on such platforms these days that the lawyers often share their thoughts in the form of articles, case analysis, their individual insights.
Now, this approach, opted by the lawyers, plays a vital role in putting a blanket upon the violation of prohibited solicitation performed by lawyers. By way of reacting upon a certain judgement or providing insights or sharing experience about the case they presented by certain court; while creating an impression upon the connected clients of
14 Rule 36, bar Council of India Rules
15 https://www. scconline. com/blog/post/2024/07/21/digital-solicitation-and-advertising-everlasting-legalcontroversies-experts-corner/ such lawyers, it also violates the prohibited solicitation as such is not allowed by the set of rules provided by the BCI. Further, another major issue that is being imposed is the blurriness it creates by drawing a very thin line between permissible information and prohibited solicitation. For instance, as discussed above, the content shared by lawyers on this platform like – their success stories, testimonials, and other such materials creates a very thin line between permissible information and prohibited solicitation. Also, any post that is misleading in nature, or which provides quite exaggerated information about any such lawyer stays in clear violation of Rule 36 of the BCI Rules.
The major reason behind such challenge and gross violation is that there is not any such regulatory mechanism for regulating or keeping an eye on the posts being posted on LinkedIn profiles by such lawyers. In the case of P. N. Vignesh v. Bar Council of India16 the issue raised before the hon’ble High Court of Madras was related to the regulation of legal services in the digital age. It was contended by the petitioner that during the digital age, digital platforms are aiding lawyers to a great extent, and they are openly soliciting about their legal work. The hon’ble court in this case observed and stated that the digital platforms and such information or insights posted on them by such lawyers should align with the basic principle of the legal profession, that is, the motive of serving to the general public should be above profit making.
Then, there was a loophole too, while the 2008 amendment took place, the said amendment to the rules of BCI Rules although provided the lawyers with the leverage of providing basic details on their websites, however, there was no addressing or interpretation with regards to such engagement that can occur on such digital platforms. Now, this left a room to the interpretation of the amendment, hence, creating a major loophole post 2008 amendment. Further, in the case of P. N. Vignesh17 it was also directed by the hon’ble court to issue the necessary guidelines with regards to such advertising on digital platforms.
Therefore, it can be stated that digital platforms, specifically LinkedIn, offer professional engagement and client connection, however, at the same time it also poses a challenge before the legal profession to align with technological advancement while backing it up with the core values that this profession holds.
16 2024 SCC OnLine Mad 2770
17 P.N. Vignesh v Bar Council of India 2024 SCC OnLine Mad 2770
Suggested Reforms for Clarifying the Grey Area: To conclude the paper, I think that certain reforms need to be made in the BCI Rules for maintaining the sanctity of the legal profession. This is for the reason that if the lawyers take such actions which are in gross violation of the BCI Rules then, there is no purpose behind such regulatory framework. There are certain reforms that, according to me, should be brought or the stand on such points should be clarified so that there is no grey area left for the purpose of interpretation. At first, an explicit set of rules and guidelines should be provided by the Bar Council of India for the purpose of setting a limit on the information being posted by lawyers on digital platforms, like LinkedIn.
Another change that can take place is that it should list down in the form of exceptions under Rule 36 of the BCI Rules, the permissible information that can be posted and present by such lawyers. Then, it can also be done that just like the system in USA is being followed that advertisements are being regulated by an Act and it should not be exaggerate, or deceitful, or untruthful in nature; the similar approach can be adopted by India too by enacting a different Act, in concise manner and list down the regulations for regulating advertisements done on social media platforms.
Further, if due to the emerging need of such technological advancement, it becomes bit difficult for the BCI to take any stringent measures, it can add or amend the existing rule of the BCI Rules18 and can include LinkedIn or any such digital commercial platform, as an exception to it with certain restrictions and limiting the contents being posted, or insights provided by such lawyers. Additionally, a training program too can be provided to the lawyers for maintaining the ethical code of conduct to be followed while posting or sharing their views on platforms like, LinkedIn.
18 Rule 36, Bar Council of India Rules