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RIGHT TO PUBLICITY OF AN ADVOCATES IN

INDIA

Project Submitted to

Dr. Dipak Das

(Faculty: Professional Ethics)

Project Submitted by:

Ashutosh Sahu
Semester X
Section – “C”
Roll No. – 44

HIDAYATULLAHNATIONALLAW UNIVERSITY, RAIPUR

(CHHATTISGARH)
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DECLARATION

I hereby declare that this research work titled “Right to Publicity of an Advocate in India” is
my own work and represents my own ideas, and where others, ideas or words have been
included, I have adequately cited and referenced the original sources. I also declare that I
have adhered to all principles of academic honesty and integrity and have not misrepresented
or fabricated or falsified any idea/data/fact/source in my submission.
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ACKNOWLEDGMENTS

I feel highly elated to work on the topic “Right to Publicity of an Advocate”. The practical
realization of this project has obligated the assistance of many persons. I express my deepest
regard and gratitude for Dr. Dipak Das, Faculty of Professional Ethics. His consistent
supervision, constant inspiration and invaluable guidance have been of immense help in
understanding and carrying out the nuances of the project report.

I would like to thank my family and friends without whose support and encouragement, this
project would not have been a reality.
I take this opportunity to also thank the University and the Vice Chancellor for providing
extensive database resources in the Library and through Internet.

Some printing errors might have crept in, which are deeply regretted. I would be grateful to
receive comments and suggestions to further improve this project report.

Ashutosh Sahu
Semester X
Section C
Roll No. 44
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TABLE OF CONTENTS

1. Introduction……….……………………………………………………………………………………………………….….5

2. Objective…………………………………………………..……………………………………………………………………6

3. Research Methodology………………………..………………………………………………………….…………….6

4. Right to advertisement in legal profession………………………………………………………….…………7

5. Indian position: Advocates Act, 1961 and bar council of India.………………………….……….….8

6. Constitutional validity of Rule 36, Bar council of India Rules………………………………..……...11

7. Advantages and disadvantages of regulating permitted legal advertisement……………….13

8. Conclusion……………………..………………………………………………………………………....……………..…15

9. References……………………………………………………………………………………………..…………………...16
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INTRODUCTION

In India advertising in the legal profession is prohibited. Even if a lawyer argues a case
splendidly in the Court of Law, the newspaper may report the issue but lawyers name in the
news will be frowned upon. As Lloyd Pearson, a London-based Legal Directories Consultant
states that India has most of the lawyers in the world, yet we know little about Indian Firms;
everyone would be better served if we knew more about the Indian legal market. A person
buying a car has more information and research resources than the person handling over
litigation to a lawyer.

Advertisements have an adverse effect on legal professionalism. This can lead to very real
harm, as a lack of professionalism can undermine a lawyer’s sense of dignity and self-worth.
Other reasons include the misleading nature of advertisement and the loss of quality in
services. The law is not a trade, briefs no merchandise and to the heaven of commercial
competition or procurement should not vulgarise the legal profession”. This perception about
the prohibition stems from the very fact that the legal profession is considered as a noble
profession.The prohibition was relaxed in the year 2008, when the Bar Council of India
passed a resolution to the effect that lawyers and the law firms were allowed to have their
website with their contact information, qualification, and the area of specialization, until then,
there was a blanket ban on the advertising.

In India the legal profession is considered a noble profession and therefore still assessed by
standards of legal ethics that may seem outdated in many other jurisdictions abroad, but are
considered a very important part of the legal profession in India, despite the change in trends
that liberalization has inevitably brought. The Bar Council of India still maintains strict
standards with respect to the legal community. An illustration of these standards can be seen
as Rule 36 of the Bar Council of India Rules whereby the Indian Law firms and lawyers are
not allowed to advertise their practice in the market.The judiciary has acknowledged the
substance of this restriction in various cases.It does not imply that the Bar Council of India
has been completely blind to the realities of liberalization, as that is evident from its decision
to amend Rule 36 and add a proviso allowing advocates to maintain websites about
themselves or their law firms in order to disseminate information, in order to enable people to
make choices.
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OBJECTIVES

 To study the right to advertisement in legal profession.

 To knowhow far advertisement in legal profession is available.
.

RESEARCH METHODOLOGY

This project work is descriptive & analytical in approach. It is largely based on secondary
&study of books along with discussion with seniors. Books & other references as guided by
faculty of Professional Ethicshave been helpful for the completion of this project.
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RIGHT TO ADVERTISEMENT IN LEGAL

PROFESSION

Legal advertising refers to legal professionals publicising the services provided by them
through the Court of Law, implying the legitimate administrations provided by legal
counsellors. The prohibition on advertisements by legal professionals has its origin in
England, founded on the Victorian notions developed during the British rule. In India, similar
to UK, the legal profession is considered to be an honourable one, which is why advertising
by legal professionals is cynical and not widely accepted. The prohibition of legal advertising
is based on its adverse effects on professionalism as commercialisation of the legal
professional was believed to undermine the lawyer’s sense of dignity and self-worth. Other
reasons for the prohibition include misleading nature of advertisements and the loss of quality
in services. It is believed that advertising would lead to unhealthy competition whereby legal
professionals would resort to practices such as fee undercutting and focus less on the quality
of the services provided by them, in addition to incurring advertisement expenditure. Even
Justice Krishna Iyer has stated that “the canon of ethics and propriety for the legal profession
totally taboo conduct by way of soliciting, advertising, scrambling and other obnoxious
practices, subtle or clumsy, for betterment of legal business. Law is not a trade, briefs no
merchandise and to the heaven of commercial competition or procurement should not
vulgarise the legal profession”. Accordingly, the initial BCI Rules had placed a complete ban
on advertisements by lawyers. Subsequently in 2008, the ban was relatively relaxed and legal
professionals were permitted to organise websites, which specified only their contact
information, area of specialization and qualifications. In India, various forms of indirect
advertisements by legal professionals have been taking place for several years, by way of
visiting cards, directory listings, seminars and felicitation ceremonies and issuing circular
letters or election manifestoes with name, address and profession printed on it, appealing to
members of the Bar practicing in lower Courts, who can recommend to clients for the High
Court level. All of these activities are in contravention of the BCI Rules and would attract
Rule 36.
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INDIAN POSITION: ADVOCATES ACT, 1961 AND

BAR COUNCIL OF INDIA

Common law countries like the US and UK have moved on from the old law i.e. prohibition
of advertising by a legal professional. In contrast to these countries, lawyers in India cannot
advertise. Section 4 of the Advocates act talks about the formation of the Bar Council of
India and under section 7 (1) (b) read with section 49 (1) (c) of the act, the BCI can restrict
the lawyers and firms to make their expert sites and the distribution of their commercials on
the web.

According to Rule 36 of the BCI rules, an advocate is prohibited from advertising either
directly or indirectly. The un-amended Rule 36 of the BCI rules prohibits a Lawyer from
advertising either directly or indirectly. However, after the BCI passed the resolution in 2008
amending the rule 36, advocates are allowed to furnish information such as name, address,
telephone numbers, email id’s, professional and academic qualifications, information related
to enrolment and area of practice on their websites. Legal professionals who provide this
information are also required to make a declaration that they have furnished true information.

Under the Advocates Act, the Bar Council of India (BCI) has the power to make rules in
order to discharge its functions under the Act, based on which, it has formulated the BCI
Rules 9 As per the 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. Even the sign board, name plate or
stationery of an advocate should not indicate that he is or has been the President or Member
of a Bar Council or of any Association or that he has been associated with any person or
organisation or with any particular cause or matter or that he specialises in any particular type
of work or that he has been a Judge or an Advocate General. However, in 2008, the Rule was
amended, pursuant to a resolution passed by the BCI on 30th April, 200810 before a three-
member bench of the Apex Court. According to the amended Rule, advocates are allowed to
furnish information on their websites, in conformity with the Schedule, as per which the
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following information can be furnished on the websites: 1. Name 2. Address, telephone

numbers, e-mail id’s 3. Enrolment number, date of enrolment, name of the State Bar Council
where 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 professionals furnishing the above-mentioned
information on their websites are also required to provide a declaration that the information
provided by them is true.

Judicial Approach

As explained by the Madras High Court in 1967, advertisements by lawyers is regarded as

reprehensible conduct because the standards which lawyers jealously develop and set up for
themselves are unbecoming to the honour, dignity and position of the noble profession.
Further, in a country such as India, a large segment of the population is illiterate, which
fosters a situation whereby unscrupulous lawyers may exploit the public, while law is
traditionally a profession with the goal of public service. The Indian judiciary has made
significant contribution to uphold the dignity of the legal profession and ensure unimpeded
performance of lawyers’ duties towards the Court.

In the case of R. N. Sharma, Advocate v. State of Haryana, it has been held that an advocate
is an officer of the Court, and the legal profession is not a trade or a business; it is a noble
profession and advocates have to strive to secure justice for their clients within legally
permissible limits. However, the considerable question is what constitutes advertisement in
the legal profession. Apart from the BCI Rules, the same has been enunciated under various
judgments of the Indian Courts.

In the case of Government Pleader v. S. A Pleader, it was held that a pleader sending a post
card merely providing his address, name and description would amount to advertisement on
his part and he would be deemed to have violated professional standards of conduct of
advocates.

In the case of In Re: (Thirteen) Advocates v. Unknown, it was held that publishing articles in
newspapers, where the writer describes himself as an advocate practicing in Courts is a cheap
way of endorsing one’s services. The Madras High Court, in S. K. Naicker v. Authorised
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Officer, has held that a sign board or a name plate of an advocate should be of a moderate
size and that writing articles for publication in newspaper under an advocate’s signature is a
breach of professional etiquette as both the actions amount to unauthorised legal advertising.1

1
docs.manupatra.in
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CONSTITUTIONAL VALIDITY OF RULE 36, BAR

COUNCILOF INDIA RULES

Constitution of India guarantees Freedom of speech and expression under Section 19(1)(a),
the only exceptions to this freedom are in the interest of Sovereignty, integrity, and security
of the state, friendly relation with the foreign states, public order, morality or in relation to
contempt of court, incitement of an offence and defamation. In the case of Tata Yellow Pages
v. MTNL the Hon’ble Supreme Court held that the freedom of speech and expression extends
to commercial speech, i.e. advertising. Also, in the case of Dharamvir Singh v.VinodMajahan
it was held by the Court that since legal profession involves business proposition, advertising
comes within the definition of commercial speech.

From the above analysis of article and cases, it can be concluded that Rule 36 of Bar Council
of India does not satisfy any of the conditions specified in the constitution. Further, it can be
argued that Rule 36 violates the freedom to carry on trade, profession or business enshrined
under Article 19(1)(g) of the Constitution of India. Article 19 (1) (g) confers each citizen with
the privilege to choose his own livelihood or to take up any exchange or calling, and this
privilege includes the right of benefitting everyone of the methods and assets including
advertising. Therefore, the ban on legal advertising under Rule 36 is unconstitutional and
excessive in nature.

On a critical analysis of Rule 36, it does not satisfy any of the conditions specified in Article
19(2). The ban on advertisements by lawyers is not constitutionally permissible, even on the
ground of “public order” under Article 19(2) as the public order has been held to be
synonymous with public peace, safety, tranquillity and the like. Further, Article 19(1)(g) of
the Constitution of India confers every citizen the right to choose his own employment, trade
or calling, having the same reasonable restrictions as Article 19(1)(a), which is often
impregnated with an implied right for availing all the mechanisms and resources for
effectively carrying on the trade or occupation, including advertisement, provided it is not
contrary to public interest. Rule 36, in essence is also violative of Article 19(1)(g) as a
reasonable restriction on prohibiting advertisement would only exist where the advertisement
is against public interest i.e. when it is immoral, obscene or presents something which goes
against public morality. Hence, the researcher is of the opinion that the ban on legal
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advertising under Rule 36 is excessive in nature and unconstitutional, as the same is not
consistent with reasonable restrictions under Article 19(2).

Article 19(1)(a) of the Constitution of India, guarantees the freedom of speech and
expression, which is further qualified by a number of exceptions. The exceptions in no way
talk about prohibiting the right of legal practitioners to advertise their services in any manner.
Rather, in the case of Tata Yellow Pages v. MTNL, the Supreme Court was of the opinion
that the commercial speeches, that is advertising, is protected under Article 19(1)(a) of the
Constitution. It has been further held by the Punjab and Haryana High Court, that rendering
professional legal services is a business proposition, and advertisement of the same as such
comes within the definition of commercial speech. The Supreme Court has also held that the
right to freedom of speech of the citizens cannot be taken away by placing restrictions on the
business of citizens.

Hence, it is to be noted that the Rule 36 of the BCI Rules, which prohibits advertisement of
the legal services, are in contravention of the fundamental rights of the law practitioners. The
prohibition does not stand in conformity with any of the exceptions to the freedom of speech
and expression, as specified in Article 19(2).The prohibition cannot even stand on the
grounds of ‘public interest’, for the reason that this phrase has been held to be synonymous to
public peace, safety, tranquillity, amongst others.

Further, Article 19(1)(g) of the Constitution, guarantees a right upon the citizens to choose
their employment, trade and calling, which comes with an implied right to avail the resources
and opportunities for effectively carrying out the trade. This right is faced with similar
exceptions as that of Article 19(1)(a). And the argument stands the same in furtherance of
protection of this fundamental right as well. Advertisement of legal services does not
contravene any of the exceptions under Constitution, and hence, the prohibition on the same,
infringes the fundamental rights of the legal practitioners.2

2
lawtimesjournal.in
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ADVANTAGES AND DISADVANTAGES OF

REGULATING PEMITTED LEGALADVERTISEMENT

Advantages of Permitting Regulated Legal Advertisements: Permitting advertisements

regulated by an appropriate authority would be more advantageous to upholding the dignity
and nobility of the profession, than prohibiting advertisements altogether for the following
reasons:

1. Opportunities to novice lawyers

It is a general observation that big firms have the power and resources to publicise their
services through means other than direct advertisements, such as sponsoring events,
hosting seminars and conferences, etc. However, it is imperative to take cognizance of
the fact that smaller firms do not have the resources to publicise in this manner, placing
them in a position of disadvantage. Permitting advertisements would prevent
monopolising the market and provide medium and small sized firms a platform to
disseminate information about their services.
2. Right to information and awareness
Due to the ban on advertisements, in order to avail appropriate legal aid, one can only
rely on “friend of friend” or word of mouth, thereby denying the consumers and potential
clients of a standardised criteria for determining a “good lawyer”. Advertising is
necessary for the recipient public, as it plays a vital role in aiding the consumers in the
process of selecting an appropriate lawyer. Litigants have no way to shortlist
practitioners specialising in a particular field of law. For these reasons, no reasonable
interpretation can justify that the ban on advertising is serving any social or public
purpose. The restrictions on advertising denies the public at large of proper and effective
guidance in availing the appropriate kind of legal service for their purpose, thus acting
contrary to social or public purpose.
3. Global Recognition
Rule 36 places Indian legal professionals in a position of disadvantage as compared to
foreign legal professionals, because legal advertising is permitted in many other
countries, making information of foreign legal professionals largely available. This is one
of the primary reasons why the BCI is not interested in accessing international markets or
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allowing entry of foreign law firms in India.45 Further, India is actively participating in
globalisation, for which other countries trading or establishing themselves in India would
require relevant information on potential lawyers available to their service. Owing to the
prohibition of legal advertising, Indian lawyers are losing out on potential clients at an
international level,46 a situation against which protective measures can be taken by
permitting legal advertising.
4. Awareness and Education
Advocates often write articles, treatises, research papers, monographs, etc. on various
aspects of law, which not only provide recognition to their services, but are also
beneficial in disseminating information about a particular aspect or interpretation of the
law and for educational purposes. Though the same can be published in law journals or
law reports, such resources are seldom available to the public at large, enjoying sparse
circulation amongst non-lawyers. Lack of internet access, the proviso whereby legal
professionals are permitted to furnish certain information on their official websites is of
no utility to majority of the Indian population as only 34.8% of the population has access
to internet services.48

Disadvantages of Regulated Legal Advertising: Despite the benefits, the disadvantages in

permitting legal advertising are as follows:

1. Gross misuse
In the opinion of the researcher, permitting advertisements would most likely be
exploited by unscrupulous advocates and firms by furnishing dishonest information.
Further, there is persistently a threat that the consumers would be swayed away by
graphics or punch lines, leading them to base their decision, not on grounds of the
reputation and fair evaluation of the advocate, but on insubstantial grounds.
2. Shifting focus
Another detriment of permitting advertisements would be that instead of focusing on
improving their skills and legal acumen, legal professionals would also have to
focuson publicising themselves to play fair in the newly developed competition. This
could adversely affect the quality of services provided by legal professionals.
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CONCLUSION

In the era of promotion and advertisement, Indian lawyers are denied the right to advertise
their profession, under the pretext of the so-called nobility of the profession. It must always
be remembered that advertising is not gratuitous; it promotes legal awareness and gives the
litigants an opportunity to evaluate the potential of their counsel. Many countries have lifted
the archaic ban on the legal advertising. The adverse effect of prohibiting the legal
advertising is that many of the litigants are at the mercy of “friends of a friend” for their legal
requirements. Clients enter into the courts without having any prior idea of the usual fees for
similar cases. It is time for the Bar Council, along with the legal fraternity in India to realize
that the legal system is not all about lawyers. Rather, it is that “noble profession” which
serves the needs of the public at large. Similar to any other service, every litigant must be
provided with the platform where he can identify the most suitable counsel and be able to
obtain the best value for their money.

In this era of globalization, where on the one hand advertisements and promotions are
weapons for the professionals, they also act as a shields for the consumer of the services. The
restrictions on the advertising in the legal profession are good neither for the lawyers nor for
the clients. It is the time that the concerned authorities realize it soon and this archaic practice
comes to end. It is only then, that the dual benefit, both to lawyers and to the consumers can
be served well.
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REFRENCES

WEBSITES
 ww.legalservicesindia.co
 lawtimesjournal.in
 docs.manupatra.in