Should India Continue The Blanket Ban On Legal Advertising
Author: LawSphereX
Category: General Law
Published:
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SHOULD INDIA CONTINUE THE BLANKET BAN ON
LEGAL ADVERTISING?
Sajal Singh, OP Jindal Global University
INTRODUCTION
"Law's nobility as a profession lasts only so long as the members maintain their commitment to integrity and service to the community. " — “Justice Krishna Iyer” In India, the legal profession is regarded to be a noble profession because it is a service to the society and demands a higher standard of ethical conduct compared to personal or commercial pursuits. However, it is argued that legal profession is no longer distinct from commercial business ventures as lawyers and law firms are advertising themselves to expand their reach among consumers of legal services with the sole motive of moneymaking. Today, the nobility of legal practice is running at a risk of being reduced to a purely commercial enterprise. If such promotional activities are left unchecked, it could further erode the integrity of the profession.
Against this backdrop, “Bar Council of India” has imposed a complete ban on advertisements by legal professionals. HYPOTHESIS: This article primarily examines the impracticality of the extent of ban under the “Bar Council of India Rules” on advertising by advocates. Complete prohibition is unarguably excessive in nature and calls for immediate amendments to align the rules with the changing needs of the hour. The trend in other jurisdictions from which Indian judicial system heavily borrows, indicates a shift towards regulating the advertisements rather than a blanket prohibition. The current restriction deprives consumers of information on legal services available, forcing them to rely on personal knowledge or word of mouth/reputation which limits their ability to make informed decisions.
Furthermore, the ban significantly prejudices the chances of young and emerging pool of advocates to establish themselves in a market dominated by senior practitioners.
RESEARCH QUESTION:
Whether complete ban on the advertising of legal services under the existing “Bar Council of India Rules” should be continued with or is there any scope for permitting regulated and legitimate advertising without compromising the sanctity of the legal profession?
OBJECTIVES
OF STUDY: This paper will attempt to critically examine the rationale behind the rule for prohibiting advertisements by legal professionals, evaluate the constitutional validity of the ban on such advertisements, assess its impact on the profession, particularly on junior advocates and consumers and conclude with a comparative study of jurisdictions that have relaxed these restrictions and discuss what India may borrow from these jurisdictions. RATIONALE BEHIND RULE 36: As per Rule 36 of the BCI Rules, "An advocate is prohibited from soliciting work or advertising, either directly or indirectly, whether by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned.
”1The prohibition is primarily in place to uphold the purity and dignity of the profession and the same has been entrusted to BCI since “it acts as the custodian of the high traditions of the noble profession. ”2 Supreme court has consistently emphasized that the nature of legal profession is different from that of a commercial activity. In “Bar Council of Maharashtra v. M. V. Dabholkar”, Krishna Iyer, J. while speaking of the nature of the legal profession observed that, “Law is no trade, briefs no merchandise and so the leaven of commercial competition or procurement should not vulgarise the legal profession. ”3 Similarly, in the case of “Dhanraj Singh Choudhary v Nathulal Vishwakarma”, the court held that “The legal profession is a noble profession. It is not a business or a trade.
A person practising law has to practise in the spirit of honesty and not in the spirit of mischief-making or money-getting. ”4 Further, in P. N. Vignesh case, the court observed that the advertisements are not free from infirmity as it has a tendency to “not
1 Bar Council of India Rules, Part VI, ch II, s IV, r 36.
2 Anjinappa v. Krishna Reddy, (2022) 17 SCC 625
3 Bar Council of Maharashtra v. M.C. Dabholkar (1976) 2 SCC 291
4 Dhanraj Singh Choudhary v. Nathulal Vishwakarma (2012) 1 SCC 741
only interfere with the ethics of the profession but also misguide the public.”5 Law as a profession was never envisaged to be a competitive race driven by profit or adopting a businesslike model. Rather, it is a noble vocation that requires practitioners to uphold honesty and work towards the progress of the society. IS THE LEGAL PROFESSION ALSO A BUSINESS?
Contradictory to the traditional view of law as a noble profession, the Supreme Court in “Subramania Mudaliar v Kolapur Traders” held that “profession of advocate constitutes business. ”6 The appellant in this case was an advocate who applied for the eviction of the respondents from the premises for the purpose of carrying on the profession of law. The Hon’ble court interpreted “Section 10(3)(a)(iii) of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960” and affirmed the decree for eviction stating that the expression “business” is of very wide import and can encompass the practice of the profession of an advocate. Therefore, it can be considered that providing legal service is a business proposition and the ground for eviction was legitimate. It’s ultimately the consumer and not the lawyer who makes the choice to engage services.
Legal services operate like a market commodity which is driven by market forces where demand is influenced by factors like duration and extent of use, past advertisements and an established client base. Legal practice shares characteristics with a business model since it involves service delivery, client retention and gaining professional credibility much like a commercial product which has gained a strong market presence through its get up, quality, advertisements and recognition by substantial segment of the public. Therefore, if the legal professional is not competent enough to deliver what is expected from him to, then he might not remain in the market for long. THE CONSTITUTIONAL VALIDITY OF RULE 36: “Article 19(1) (a) grants freedom of speech and expression to all the citizens of India”7.
However, it is important to note that these are not absolute right, and it operates within the boundaries set by exceptions under “Article 19(2)”. However, it is quite unreasonable to think
5 P.N. Vignesh v. Bar Council of India (2024) SCC OnLine Mad 2770
6 Subramania Mudaliar v. Kolapur Traders, (1981) 4 SCC 511
7 The Constitution of India 1950, Art 19(1)(a)
that the right to advertise legal services violates any of the exceptions such as public order, decency or morality. This leaves us with the question that can the blanket ban imposed by Rule
36 on legal advertisements continue to be justified?
Having established that legal services may be construed as business activity, it becomes necessary to refer to the case of “Tata Press Ltd v Mahanagar Telephone”, wherein Supreme Court held that, “commercial speech is a part of the freedom of speech and expression guaranteed under Article 19(1) (a) of the Constitution. ”8 Moreover in “Tata Yellow Pages v MTNL”, it was held that “advertisement is a form of commercial speech which is protected under Article 19(1)(a). ” Therefore, legal advertisements come under the purview of commercial speech and the right to advertise by lawyers and law firms is a fundamental right protected under “Article 19(1) (a). ” Consequently, Rule 36 infringes upon this implied right to advertise and amounts to violation of “Article 19(1) (a).
” “Article 19(1) (g)” confers “the freedom to carry on trade, profession or business and has the similar restrictions as Article 19(1) (a). ”9 This right extends to all incidental activities and resources necessary to pursue a profession and by prohibiting advertising, it restricts the ability of endorsing one’s services. Hence, Rule 36 also runs counter to “Article 19(1) (g)” as it does not conform to the reasonable restriction under “Article 19(6). ” Therefore, the ban is both excessive and violative of constitutional guarantees. EFFECT OF ADVERTISING ON PROFESSION, YOUNG LAWYERS AND CONSUMERS: Opponents of lawyer advertising feel that “it will enable unscrupulous and incompetent lawyers to recruit clients. ”10 This notion is incorrect as legal services are not uniform in nature and the impact of advertisement cannot be the same for all legal services.
As already established, legal services are shaped by market forces like any other commodity. In such a case, allowing advertisements would help advocates to extract the best out of them and invite clients based on their potential.
8 Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd., (1995) 5 SCC 139
9 The Constitution of India 1950, Art 19(1)(g)
10 Geoffrey C Hazard Jr, Russell G Pearce and Jeffrey W Stempel, ‘Why Should Lawyers Be Allowed to
Advertise: A Market Analysis of Legal Services’ (1983) Yale Law School Faculty Scholarship Series, Paper 2398 accessed 18 April 2025 Another stigma associated with advertising is that it would lead to an increase in the cost of legal services. In contrary to this view, advertisements would “induce lawyers to compete in offering lower prices for legal services”11 and help customers to know about additional information that is typically unknown to the average person with little or no exposure to the legal system. Take, for instance, the case of a bail application. The cost associated with filing and pursuing a bail application is often unknown to a large section of society. In the absence of advertising, individuals typically resort to engaging a reputed lawyer charging extravagant fees.
Hence, making advertisements accessible to the clients would enable them to cross check the credibility of advocates, compare the costs associated with various legal services and allow them to make an informed choice which is best suited given to their legal needs. It is often argued that permitting legal advertisements would put young lawyers at a disadvantage and further reinforce the monopoly of prestigious law firms and senior advocates who already possess the means, infrastructure and networks to publicise their services. While this concern may appear valid at first glance, it overlooks key practical realities. If young/ firstgeneration lawyers are given a chance to advertise their work given the restrictions/supervision, it would enable them to invite more clients in comparison to what they can with limited resources and would remove the hindrance to their livelihood.
Advertising acts as an incentive for them to disseminate information about their services, counter monopolistic dominance and establish themselves in an increasingly competitive legal market. Independent litigation practice in India operates in an unregulated environment with no stable salaries. “Therefore, in the absence of the ability to advertise, first-generation lawyers who do not have clients from connections are left with no option but to leave the profession or to join a senior chamber at a meagre salary. ”12 Additionally, Supreme court has clearly stated that “legal profession requires full time attention and would not countenance an advocate riding two horses or more at a time. He must be a full-time advocate or not at all. ”13 Advocates are bound by BCI Rules which restricts them from earning a livelihood through any means other than legal practice.
In this context, advertising becomes a vital tool for novice lawyers as it provides them with a platform to demonstrate their competence, connect with
11 Ibid (1089)
12 Yash Dahiya, ‘Reconsidering the prohibition on Advertising Policy for Lawyers [Part I]’ (Law and Other Things, 19 November 2024) accessed 18 April 2025
13 Dr Haniraj L. Chulani v. Bar Council of Maharashtra & Goa, (1996) 3 SCC 342
potential clients and increase their economic independence. It also helps users to discover competent lawyers and gain access to information that they might not have otherwise found. JURISDICTIONS THAT HAVE ALLOWED ADVERTISING IN THE LEGAL PROFESSION: A. UNITED STATES OF AMERICA The United States initially adopted a similar approach to India by imposing a complete ban on legal advertising, rooted in the belief that the legal profession is a noble calling. However, this position was changed after the landmark case of “Bates v State Bar of Arizona”, wherein it was held that, “advertising by attorneys is not an unmitigated source of harm to the administration of justice. It may offer great benefits and supply consumers with valuable information to make an intelligent selection.
”14 The court also recognised the need to include vigilance of a regulatory agency “American Bar Association” and emphasised the importance of imposing reasonable restrictions to prevent misleading advertisements by lawyers. As per “Rule 7 of ABA”, “a lawyer can choose any media to advertise but it must be accurate and not misleading or deceptive. ”15 Additionally, rules prohibit solicitation driven by pecuniary motives and forbid comparative advertisements slandering the competitor’s services. B. UNITED KINGDOM In the “United Kingdom”, the solicitors and law firms are permitted to advertise subject to regulatory oversight by “The Solicitors Regulation Authority (SRA). ” One is “allowed to advertise their services to the public so long as it is done in a non-intrusive and non-targeted way.
”16 For instance, if a firm or a lawyer obtains a list of individuals charged with theft and distributes leaflets offering legal representation at a discounted rate, then such a practice is strictly prohibited. Similar stance to USA, the rule mandates that, “one must ensure that any form of publicity in relation to your practice should be accurate and not misleading. ”17 Additionally, all the advertisements are subject to the scrutiny of “Advertising Standards
14 Bates v. State Bar of Arizona, 433 U.S. 350 (1977)
15 American Bar Association, Model Rules of Professional Conduct (adopted 1983, amended 2023) r 7.
16 Solicitors Regulation Authority, ‘Unsolicited approaches (advertising) to members of the public’ (16 December 2019) accessed 22 April 2025. 17 Solicitors Regulation Authority, SRA Code of Conduct for Solicitors, RELs and RFLs (effective 25 November
2019) r 8.8
Authority” and any non-compliance to the rules prescribed will attract sanctions where intermediaries can be asked to take down unlawful content from their platforms. C. SINGAPORE Singapore has acknowledged the importance of allowing legal advertising, provided that such advertisements are accurate and uphold the honour of the legal profession. “An advocate and solicitor may, subject to these Rules, publicise his practice or the practice of his firm, or allow his employees or agents to do so. ”18 D. CANADA Across the Canadian jurisdictions, common set of rules for legal ethics and professional conduct is now incorporated in the “Model Code of Professional Conduct. ” Marketing of professional services is allowed by lawyers only if “it is true, not likely to mislead and consistent with a high standard of professionalism.
”19 Furthermore, the commentary to the rule clarifies that marketing must not create unjustified expectations, must not be vindictive in nature and should refrain from degrading the competitor or their services. WHY DO WE NEED TO REFORM INDIA’S CURRENT LEGAL POSITION ON THE PROHIBITION OF LEGAL ADVERTISEMENTS?
With the growing demand for the change in the rules governing lawyer advertising, the BCI brought about an amendment in 2008 and allowed legal community to have digital presence and provide limited information like name, address, qualification and area of practice. However, more than two decades have passed without any significant advancement on this front and the continuing ban is now considered to be outdated and unfair in the context of modernization in legal practice. • NEED FOR A REGUALTORY BODY – The issue of blanket ban on advertisements is in the spotlight again by a recent controversy involving law firm, “DSK Legal”. “Bar Council of India” issued a show cause notice on 20th March 2025 to “DSK Legal” for allegedly violating
18 Legal Profession (Publicity) Rules 2001 (Singapore) r 4
19 Federation of Law Societies of Canada, Model Code of Professional Conduct (2024) r 4.2 https://flsc.ca/wpcontent/uploads/2024/11/2024-Model-Code-of-Professional-Conduct.pdf > accessed 22 April 2025.
Rule 36 and directed them to take down the unlawful advertisements from all digital platforms. The advertisement was a promotional video featuring Bollywood actor Rahul Bose in which he is seen refusing to sign documents without first reviewing them, while simultaneously expressing blind trust in the law firm due to its longevity in the profession. BCI came down heavily on the firm and reiterated that such “promotional tactics not only deceptive but also violate the trust that clients place in the legal system. ”20 However, at no point in the advertisement did the firm draw comparisons intended to disparage other law firms or individual practitioners. The tone of the advertisement cannot be characterised as malicious, as it merely highlighted the firm's services as being of the highest quality.
“One is entitled to declare his goods/services to be the best in the world even though the declaration is untrue. ”21Therefore, the advertisement was a case of mere puffery and should not have warranted any legal challenge. Additionally, it is highly unreasonable to expect BCI to monitor voluminous catalogue of advertisements and quell any violations of the rules. Like in other jurisdictions, regulating body like “Advertising Standards Council of India (ASCI)” should be allowed to regulate legal advertisements content in India to ensure ethical compliance and protect consumers from misleading claims. • ADVERTISING IN OTHER NOBLE PROFESSIONS - Advertisements by private hospitals, clinical establishments, pathology laboratories, and other healthcare-related service providers are neither curtailed nor strictly regulated.
Their advertisements often feature claims like “Best success rate in the country”, “India’s No. 1”, “Trusted by Millions of Patients”, “The world’s best hair treatment”, etc without any credible data to support these assertions. For instance, Apollo Hospitals advertises itself as “India’s No. 1 Multi-Speciality Hospital” without facing any restrictions. The inherent dignity of the medical profession remains intact even with such promotional practices. Similarly, the legal profession should not be barred from advertising solely on the grounds of preserving its nobility. Similarly, teaching is widely regarded as a noble profession as they play vital role in moulding future generations. Recently, there has been a surge in advertisements in India by various coaching centres and ed-tech platforms like “Physics Wallah”, “Aakash”, “FIITJEE”,
20 Bar Council of India, Show Cause Notice to DSK Legal for Violation of Rule 36 (20 March 2025) https://lawbeat.in/sites/default/files/2025-03/bcid-1932-2025-notice-to-dsk-legal250320210127-592184.pdf > accessed 22 April 2025.
21 Reckitt & Colman of India Ltd. v. M.P. Ramchandran, 1998 SCC OnLine Cal 422
“Unacademy”. These entities publicise their success stories using hoardings and banners and include names, photographs, marks, ranks and testimonials of students post their selection to highlight how they were instrumental in candidate success stories. However, there are guidelines laid down by “ASCI and Central Consumer Protection Authority” to prevent coaching centres from making false and misleading claims and pressure students into making hasty decisions. These examples demonstrate that advertising and ethics can coexist through effective regulation, and it is essential to strike a balance between commercial intent and responsible advertising. Therefore, imposing excessive restrictions on lawyers and law firms from advertising in the name of preserving the profession's sanctity may ultimately do more harm than good.
• ACTIVITIES EVADING THE ADVERTISING BAN – Despite the existing ban, activities like “newspaper publishing names of advocates representing high profile clients and the outcome of case, lawyers appearing for interviews on national television, law firms glorifying their past case records on their websites, publishing articles written by their partners and associates, providing information regarding their achievements”22 have collectively contributed to the silent and continued breach of Rule 36 over the years. Legal profession today is not centred around the pursuit of justice but mostly is in the commercial interests of the advocates/law firms. The ban on advertisement is obsolete for today’s time as no more do we see advocates choosing to represent a client with their purpose being to secure administration of justice. Yes, an exception would be pro-bono lawyers.
However, statistics say that “as on 30th November 2024, there are 8614 Pro Bono advocates registered under the Nyaya Bandhu program by Department of Justice. ”23 These numbers are insufficient to meet the needs of citizens who cannot afford legal representation. Most of the cases that advocates take are for their own monetary interest and not because they believe in a cause or want to establish the innocence of an accused. Therefore, it is very much arguable that the legal profession can no 22 Ministry of Law and Justice, 'Department of Justice (DoJ), Ministry of Law and Justice has undertaken various initiatives/projects and developed scheme to increase free legal aid and ensure access to justice' (Press Information Bureau, 6 December 2024) accessed
24 April 2025
23 Isha Kalwant Singh, 'Advertising by Legal Professionals' (Bharati Law Review, Oct–Dec 2016) http://docs.manupatra.in/newsline/articles/Upload/C74B86B2-2614-4B56-A50D-8D498A841418.pdf > accessed 24 April 2025 longer be idealised as purely noble and BCI must recognise that a complete ban does not tackle the commercial nature that already exists in the legal field.
SUGGESTIONS /
CONCLUSION
India must acknowledge that absolute prohibition on legal advertising is no longer tenable, and “Bar Council of India” should consider revising the existing rules to permit regulated legal advertising aimed at promoting awareness and aiding the lay consumers of legal services to know about the scope of the services that they require and make an informed choice from the options available at their disposal. As seen in other jurisdictions, legal advertising can coexist with professional ethics with appropriate regulatory oversight and clear guidelines. BCI can consider collaborating with an independent body like “Advertising Standards Council of India (ASCI)”, to allow only those advertisements that are accurate, not misleading and in line with the dignity of the profession.
Lawyers should be allowed to use any medium of their choice to advertise their services so that they can reach to the masses and not just to the sophisticated and affluent clients. This will promote inclusivity in the delivery of legal services. “Confidentiality must be the prime responsibility, and no sensitive or personal information should be made public of any case/client. ”24 Cases involving sexual offences, family disputes or offences of grave nature should be excluded from the ambit of advertisement in India due to privacy concerns and potential harm to reputation. Clients must feel safe in disclosing all the relevant information without the fear of sensitive information being exposed to the public domain.
A new section can be incorporated to “Advocates Act, 1961” which will lay down strict penal punishments along with imposition of fine against any legal professional or law firm found guilty of breaching the prescribed rules governing legal advertising.
24 Harshima Vijaivergia and Smita Pandey, ‘Rethinking the Prohibition on Advertising for Advocates’
(Manupatra, 27 December 2025) accessed 24 April 2025.
India has refrained from lifting the ban on legal advertising primarily due to the concern that it will give us an expression that justice can be bought and sold like any other commodity in the market. However, this perception does not align with the realities of a regulated legal practice. “As indirect advertising has already surfaced in India, it is prudent to allow advertising with comprehensive checks and balances mechanisms. As little information is more dangerous than no information.”25
25 Sakshi Saraogi, ‘Reimagining The Lawyer's Right To Advertise In A COVID-19 World
The New Normal’ (Mondaq, 24 July 2020) accessed 24 April 2025.