This has led to a whole wide debate in India over the stringent laws governing code of ethics and morality Of Legal professionals on one hand and the WTFO laws on he other hand. This debate revolves around major issues pertaining to the objectives of legal profession, consumerism, social justice, Indian commitment to WTFO regime, competition law etc. Some professionals argue that the shift in trade nature of legal services shall hamper ‘professional ethics’ and concept of ‘justice to all’.
Some others say that the regulations imposed on the legal services sector are contrary to the goals and purpose of competition policy and Competition Act, 2002. At the heart of this controversy lies the issue of legal advertising. The lava. N. Rye’s in India are barred room advertising their profession considering the profession to be a noble one and such advertising to be derogatory to that profession. Advertisements are a forum for establishing the utility of goods and services. Further, it enhances and encourages competition in the relevant market by providing a forum for launching of new products.
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To cope up with the VITO laws and norms and looking at the current trend which has subjected legal profession to trade laws, it has become inevitable to allow the legal professionals to advertise and to rethink about the policy of law in India. People think whether this kind of ban based on age old norms is viable in this modern era. The debate of the hour in the Indian legal world is on why the profession should have very strict curbs on promoting its services stemming from laws that originate from British thinking when the country from where it originates has itself done away with the curbs?
In the view of the above background, I would like to discuss the laws banning the advertising for legal professionals in India and their implications, considering the position of such laws in other developed countries owing to the WTFO norms. INDEX l. CHAPTER l: The Law on Legal Advertising in India * The law under Bar Council of India Rules; * The Judiciary on this rule II. CHAPTER II: Law in other countries * Position in U. K. * position in U. S. * Position in other countries Ill. CHAPTER Ill: validity of Rule IV.
CHAPTER W: The Constitutional Disadvantages of banning Legal Ads * Consumerism and Informed Choice * Advertisement on Internet * Other disadvantages * Need for regulating the advertising V. CONCLUSION. L. CHAPTER I: The Law on Legal Advertising in India After taking into account the recommendations of the Law Commission on the subject of Reform of Judicial Administration relating to the Bar and to legal education and to implement the recommendations of the All India Bar Committee made in 1 953, the Indian Legislature came up with the Advocates Act, 1961.
This act under the section 4 forms a Bar Council of India to regulate all the legal professionals and legal education in India. The Bar Council of India is the central institution for supervising and monitoring the growth and development of legal services and the functioning of advocates ; related firms ; corporations in India. Pursuant to the functions of Bar Council f India under section 7 and its power to make rules under section 49 of the said Act, it has enacted the Bar Council of India Rules which are binding on all the legal professionals in India. The law under Bar Council of India Rules There is a complete ban on advertising for lawyers in India. The Bar Council of India, pursuant to its functions mentioned under Section 7(1 of the Advocates Act read with its powers to make rules under Section 49(1 )(c)[l O] has framed Rule 36 of the Bar Council of India Rules under Section IV(Duty to Colleagues) of Chapter II(Standards of Professional Conduct and Etiquette) of Part IV(Rules Governing Advocates).
Rule 36 reads as under: “An advocate shall not solicit work or advertise, either directly or indirectly, whether by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing or inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned. His sign-board or name- plate should be of a reasonable size.
The sign-board or name-plate or stationery should not indicate that he is or has been President or Member of Bar Council or of any 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 been a Judge or an Advocate General. ” Thus, it is against an advocates code of ethics to solicit or advertise work and amounts to a misconduct on the part of the advocate. Both direct and indirect advertising is prohibited.
An advocate may not advertise his services through circulars, advertisements, touts, personal communication or interviews not warranted by personal relations. Similarly, the following forms of indirect advertising are prohibited: A. By issuing circulars or election manifestos by a lawyer with his name, profession and address printed on the manifestos, thereby appealing to the members of the profession practicing in the lower courts who are in a position to recommend clients to counsel practicing in the high court B. Invasion for votes by touring in the province or sending out his clerk or agents to the various districts, which must necessarily mean directly approaching advocates practicing in subordinate courts. Further, the signboard or nameplate splayed by an advocate should be of a reasonable size. It should not refer to details of an affiliated by the advocate i. E. That he is or has been president or member of a bar council or of any association, or he has been a Judge or an Advocate-General, or that he specializes in a particular kind of work, or that he is or was associated with any person or organization or with any particular cause or matter.
Further advertising on internet is also prohibited. Bar Council of India, in a notice dated 21st October 1999, reaffirmed that such ‘advertisements’ on the Internet are considered an offence. It ordered all the legal Websites to be withdrawn immediately, under threat of legal action ranging from temporary suspension to permanent debarring of the lab’. Year from practice. The above rule has been vehemently enforced by the Bar Council of India, simply disregarding all the criticisms made against this archaic rule.
Further, the words of Section IV of Chapter II of Part IV of Bar Council of India Rules are clear i. E. “Duty to colleagues”. This means that the another reason behind enactment of such a norm is to prevent the advocates, law firms, etc from enticing the clients of their adversary and to match away the business of their adversary. Such a law is also made in order to help the small and unknown advocates and firms to rise in the market and do business. The purpose behind it is to prevent a set of lawyers from taking unreasonable advantage.
Also such a law prevents lawyers from falling below their dignity in order to fetch clients by doing anything and thus degrading the nature of the profession. The courts have more or less agreed with the view of the Bar Council and have advertising. Implemented the rule laid down by the Council pertaining to The Supreme Court of India observed in Bar Council of India v. M. V. Diabolical, that “….. The canons Of ethics and propriety for the legal profession totally taboo conduct byway of soliciting, advertising, scrambling and other obnoxious practices…. It further noted that “Law is not a trade, not briefs, not merchandise, and so the heaven of commercial competition should not vulgarize the legal profession”. The Allahabad High Court observed that self advertising tends to lower the dignity of this honorable profession and is undoubtedly akin to touting. The Bombay High Courting Government Pleader v. S, a Pleader considered sending a circular postcard merely giving the address and ascription as an improper conduct by the Advocate.
The High Court of Madras went one step ahead in Knackers v. Authorized Officer SKY and held that even a sign board or a name-plate should be of a moderate size. It has been further observed that writing Of articles for publication in newspapers under his signature, where the writer describes himself as an Advocate practicing in the court as a flagrant breach of professional etiquette. Thus, legal advertising by far is a taboo in India and the courts have more or less approved and agreed with this rule framed by Bar Council of India. II.
CHAPTER II: Law in other Countries gal advertising has been an important and Widely used tool of communication in many common law countries and in most of the developed countries like US, K, etc. It is used by the lancers to promote their professional services. It is allowed in most of the countries with regulations regulating it as compared to India where it is completely banned. In these countries the regulation is done in order to avoid false, misleading & deceptive advertisements but advertisements displaying truth are allowed. The legal system is often a mystery, and we, its priests, preside over rituals baffling to everyday citizens. – Henry Miller * Position In U. K. The provision banning advertisement adopted in India has its roots in Victorian notions of U. K. Which considered each and every profession to be noble and stated that such a regulation is necessary in order to preserve the dignity and nobility of this profession. Earlier, in U. K. Too advertising was banned for professionals like lawyers. But later this ban was lifted.
The Monopolies and Mergers Commission in 1970 and the review given by the Office of Fair Trading in 1986 pointed out at the advantages of letting the professionals advertise and the benefits availed by room relaxing such norms. Ultimately the ban was lifted and the restrictions lowered and thus legal marketing and legal advertising became a reality in U. K. * Position in U. S. In U. S. The position was somewhat similar to that in India until 1977. There was a complete ban on advertising for legal professionals. This position took a complete U-turn after the decision of the U.
S. Supreme Court on outhouse 1977 in the case of Bates v. State Bar of Arizona. The Supreme Court validated legal advertising and invalidated the law of State Bar of Arizona banning legal advertising by a majority of 5:4 holding such a law violated of First Constitutional Amendment. Prior to this case, the U. S. Supreme Court validated commercial advertisement and gave its scope in the 1 942 case of Valentine v. Christensen. Later in Biggest v. Virginia (1975) and in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council Inc. (1976) the U. S. S. C. Invalidated laws restraining ads marketing abortion services and ads showing prices of prescription drugs on the basis that they violated First Constitutional Amendment i. E. Freedom of Speech and Expression and held that “the free flow of commercial information is indispensable. ” All these sessions were adopted in the Bates’ judgment by the US SC and it was held that truthful legal advertising should not be prohibited as there is nothing wrong in it. The court invalidated in this appeal the law prohibiting legal advertising holding it to be violated of freedom of speech and expression guaranteed by the First Constitutional Amendment.
Justice Blackman argued that commercial speech does merit First Amendment protection given the important functions it serves in society, such as providing consumers with information about services and products, and helping to allocate resources in he American system of free-enterprise. The Court held that allowing attorneys to advertise would not harm the legal profession or the administration Of justice, and, in fact, would supply consumers with valuable information about the availability and cost of legal services. But the states are allowed to regulate and monitor the advertising by advocates.
This is evident from the later judgments of various state Supreme Courts which have upheld the laws regulating and restricting certain practices of legal The position in other developed countries is also quite clear. Advertising is allowed in most of the countries. In France, though the law is not that liberal, it stands somewhere between Indian and U. K. Position. There is not a complete ban on advertising. Also in Italy, the legal marketing has been legalized by the Iberian Decree of 2004 which was enforced in 2007. This has been true for most of the European countries like Germany, Spain, etc. Legal Advertising is a reality everywhere.
Besides countries in the West, Asian countries such as Hong Kong, Singapore and Malaysia have been progressively relaxing their regulations on legal advertising to adapt to global demands. For instance, Malaysia’s Legal Profession (Publicity) Rules, passed in 2001 is a simple yet comprehensive code that regulates advertisements in legal and non-legal directories, controls publication of journals, magazines, brochures and newsletters by lawyers and interviews in electronic and print media, bars publicity through clients and even includes a rule that regulates lancers sending greeting cards on special occasions.
In Hong Kong, lawyers are forbidden from advertising on television, radio and cinema. Though advertising in print is permissible, larger firms prefer alternative strategies such as engaging in aggressive client and public relations programmer and branding exercises. Even in Singapore the legal advertisements are allowed with certain restrictions. Thus, it is clear that most of the countries have adopted a liberal policy towards legal advertising and has allowed it to meet the global demands and compete with the other countries.
This has resulted only in advantages and benefits for those countries and no harm is done on the contrary. The Constitutional validity of Rule 36 The Rule 36 of Bar Council of India Rules, prohibit advocates from advertising. This Rule cannot be challenged with regards to A. 19(1)(a) i. E. Freedom of speech and expression as done in US in the case of Bates v. Arizona State Bar, because of the decision of Indian Supreme Court in the case of Homeward Deckhand v. Union Of India.
The Supreme Court came on to decide validity of law banning advertisement for the sale of certain medicines in this case against A. 19(1 )(a) of Constitution of India. The Court held that: “An advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed. It assumes the attributes and elements of the activity under Art. 19 (1) which it seeks to aid by bringing it to the notice of the public.
When it takes the form of a commercial advertisement which has an element of trade-or commerce it no longer falls within the concept of freedom Of speech for the object is not propagation Of ideas ?? social political or economic or furtherance of literature or human thought; but as in the present case the commendation of the efficacy, value and importance in treatment of particular diseases by certain drugs and medicines. In such a ease, advertisement is a part of business even though as described by Mr..
Munson its creative part, and it was being used for the purpose of furthering the business of the petitioners and had no relationship with what may be called the essential concept of the freedom of speech. It cannot be said that the right to publish and distribute commercial advertisements advertising an individual’s personal business is a part of freedom of speech guaranteed by the Constitution. ” In the view of the above decision, the commercial advertisement is not a part of freedom of speech and expression and thus ban on advertisement for advocates is justified to be falling within reasonable restriction as stated under A. 9(2). The only remedy left is to challenge its constitutional validity against A. 19(1 i. E. Freedom to carry on Trade, Profession or Business. Article 1 9 (1) (g) of the Constitution of India confers every citizen with the right to choose his own employment or to take up any trade or calling. This right is impregnated with an implied right for availing all the mechanisms and resources – including advertising – for effective carrying Of the trade or occupation provided it doesn’t go against public interest.
Any blanket bar on this right would be unreasonable when there is an option of constituting a specialized government body that would examine the content of the advertisement. The question that remains is whether legal profession falls under the category of trade or business so as to avail the above right? Even though the judiciary in the words of Justice Krishna lyre, has held that Legal Profession is such a noble Profession that it cannot form a part of trade or business, the recent trend of the courts is to justify this profession as a trade.
Over the years, the courts have recognized ‘Legal Service’ as a ‘service’ entered to the consumers and have held that lawyers are accountable to the clients in the cases of deficiency of services. In the case of Krishna v. Union of India, the Madras High Court held that, in view of Sec. 3 of Consumer Protection Act, 1986 that Consumer redressed forums have jurisdiction to deal with claims against advocates. Sec. 2 (U) of the Competition Act, 2002 defines the term ‘Service’ along the lines of the Consumer Protection Act, 1986. Also the decision of Supreme Court in Bangor Water Supply and Sewerage Board v.
A. Raja, holds that legal profession is covered under the function of the term Industry under the Industrial Disputes Act, 1947. Further it should be noted that India is a part of MO and is subjected to WTFO laws and legal services are listed as a subsection of Business Services in WTFO Services Sector Classification list. In the view of the above background, the fundamental right to advertise guaranteed under A. 1 can be given to the legal professionals to promote their services. This right thus, can be taken away only by imposing a reasonable restriction under A. 9(6) of the Constitution The Supreme Court further observed that: Unless it is shown that there is a reasonable relation of the provisions of the Act to the purpose in view, the right of freedom of occupation and business cannot be curtailed by the phrase ‘reasonable restriction’ connotes that the limitation imposed on a person in enjoyment Of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word ‘reasonable’ implies intelligent care and deliberation, that is, the choice of a course which reason dictates.
Legislation which arbitrarily or excessively invades the right cannot be said to contain the laity of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Art. 19 (1) (g) and the social control permitted by CLC. (6) of Art. 19, it must be held to be wanting in that quality. ” Restrictions can be laid by regulating and monitoring the advertising but not completely banning it as it would be going beyond what is required as regulating the advertisement is sufficient in public interest.
Presently a writ petition is pending before the Indian Supreme Court challenging this rule of Bar Council of India. The petition was filed by Mr.. V. B. Josh who is an advocate practicing in the Supreme Court. In the last hearing of this matter in September 2007, the Government agreed to relax this law a bit. The Government agreed to allow the lawyers advertise on their own website and to enter their name into online directories but all these to be done under a committee monitoring it. IV.
CHAPTER M: Disadvantages of banning Legal Advertisements Globalization brought about a revolution in international trade with increasing participation and involvement of countries The implication of the same on the legal service sector has been both quantitative and qualitative. The past decade has been mini-revolution in legal service sector with the greatest legal impact on corporate legal arena activities in project financing intellectual property protection, environmental protection, competition law, corporate taxation, infrastructure contract, corporate governance and investment law were almost unknown before ass’s.
Globalization has expanded the internal and external demand for legal services. Today trade in legal services is an inevitable fact and is at the same time significant for progressive development of legal profession in India in this era of Globalization. Consumerism and Informed Choice In the age of consumerism and competition law, consumer’s right to free and fair competition is paramount and cannot be denied by any other consideration. Informed choice is one of the rights of a consumer. Ban on advertising leads to depriving consumers of valuable information about the advocates.
This has resulted in a situation where consumers cannot make an informed choice from the competitive market since information relating to the service is not available to them. Moreover restriction on professional firms on informing potential users on range of their services and potential causes further injury to the competition. The services available to consumers of India are only domestic legal service providers and consumers most often are left at the mercy of advocates and the system . Thus it is very detrimental as they cannot resort to any other service provider in absence of choice.