Right to advertising of lawyers
suyogya awasthy 6 May 2018

Right to advertising of lawyers

Right to advertising of lawyers

“…..the canons of ethics and propriety for the legal profession totally taboo conduct by way of soliciting, advertising, scrambling and other obnoxious practices….”

                                                                                                – Justice Krishna Iyer


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profession is considered a noble profession and therefore still assessed by standards of legal ethics that may seem outdated in many other jurisdictions abroad, but are considered a very important part of the legal profession in India, despite the change in trends that liberalization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.

The judiciary has reinforced these principles, which can be reflected in words of Justice Krishna Iyer, when he noted, Law is not a trade, not briefs, not merchandise, and so the heaven of commercial competition should not vulgarize the legal profession.

However over the years courts have recognized ‘Legal Service’ as a ‘service’ rendered to the consumers and have held that lawyers are accountable to the clients in the cases of deficiency of services.

Madras High Court held that, in view of Sec. 3 of Consumer Protection Act, 1986. Consumer redressal forums have jurisdiction to deal with claims against advocates. Sec. 2 (U) of competition Act, 2002 defines the term ‘Service’ along the lines of consumer protection Act, 1986. Thus it may be concluded that legal services are becoming subject of trade related laws where consumerism and market forces should be given adequate space .

The emerging legal service sector is equally beneficial to all consumers of legal services, without discrimination. In the age of consumerism and competition law, consumers right to free and fair competition is paramount and cannot be denied by any other consideration. Trade in legal services focuses on benefits accruing to consumers from legal service sector, particularly the quality of service available with respect to particular fields.

The Supreme Court observed, some of the members of the profession have been adopting prospectively casual approach to the practice of the profession, they do not only amount to contempt of court but to the positive disservice to the litigants. In our country must often consumers are at the mercy of advocates and the system and they resort to any other service provider in absence of choice.

Secondly, the services available to consumers of India are only domestic legal service providers. Corporate legal activities are recent phenomenon in India and solution of some complicated legal issues can only be granted by professional International Law firms hence allowing them shall be beneficial for satisfaction of consumers in India Many countries across the globe resort to Legal Process Outsourcing (LPO) and gain best of the legal services and solutions at competitive prices. Existing regulations deprive consumers to derive benefit, which ultimately effects development.

Historical Perspective

Although it is agreed that the traditional ban against advertising by lawyers originated in England many years ago, there is disagreement as to how the proscription arose. After noting that advertising and solicitation are usually treated together and it is stated that both are derived from the Common Law crimes of champerty, maintenance and common barratry. Champerty was the most serious offence of all, bargain in which a party to a civil suit gave the champertor an interest in the subject matter of the suit if the party prevailed in exchange for the champertor’s paying the expenses of the suit.

The roots of this Rule are based on age-old Victorian notions of British Common law. The conception of legal services as a ‘noble profession’ rather than commercial services resulted in formulation of excessively stringent and restrictive regulatory machinery. These regulations have been justified on the grounds of public policy and ‘dignity of profession’.

In Bates v. State Bar of Arizona case, on the claim of the violation of free speech, the US Supreme Court ruled in favor of Bates and O’steen, stating that Arizona’s ban of advertising inhibited the free flow of information and kept the public in ignorance. The Supreme Court therefore removed the ban on advertising. However, they still allowed the State Bar to regulate advertising in order to make certain that the information presented was true and did not mislead others or make false claims.

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