LEGAL PROFESSION AND ADVERTISEMENT: AN OVERVIEW
P.S.KHURANA
The
democratic policy of
The legal
profession is a noble calling and an important player in the process of
dispensing justice to the masses. Public service is the primary aim of the
profession and gaining a livelihood is incidental thereto.1
Law has traditionally been viewed
as an agency of public service, and not a business; to the extent that a lawyer
is not allowed to solicit work or advertised, directly or indirectly.
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 which
reads as under:-
“An
Advocate shall not solicit work or advertise either directly or indirectly whether
by circulars, advertisements, torts, personal communications, interviews not
warranted by personal relations, furnishing or inspiring newspaper comments or
procuring his photograph to be published in connection with cases in which he
has been engaged or concerned.”
Thus, advertising in any form and shape by the Advocates is considered unethical and contrary to the service orientation of the Legal profession
B.Sc.,
LL.M, Advocate at Punjab and Haryana High Court & Supreme Court of
In Government Pleader Vs. S.A.
Pleader2, the
The Legal
profession in
Justice
Krishna Iyer has observed in one of his landmark judgment about the idea of
advertising of legal services as:-
“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 trade, briefs no
merchandise and to the heaven of commercial competition or procurement should
not vulgarize the legal profession.”3
The roots of this standard of rules, ethics and etiquettes
are based on age old Victorian notions of British Common Law. These regulations
have been justified on the grounds of public policy and dignity of profession.4
The
“An
Advocate is an officer of the Court and Legal Profession is not a trade or
business, rather it is a noble profession and advocates have to strive to
secure justice for their clients within legally permissible Limits”5.
The other
reasons put forth to support Rules 36 are that firstly, the quality of lawyer’s
work is considered to be sufficient to get him publicity, secondly, clients
would then also run the risk of being lived to the one with the fanciest media
coverage rather than to the most competent and experienced, a problem existing
in our country where ignorance and gullibility absurd.
Thus, if we analyze Rule 36, it leads to
alarmingly conclusions. This rule does not permit business cards, directing
listings or seminar ceremonies etc. Issuance of circulars, election manifestos
with their name, address and court of practice, legal aid clinics provide
contact details of advocates to the consumers. Whom they can approach. All
these are questionable but are not strictly enforceable. In case an advocate
orally tells even one person that he is an advocate, that person has just
advertised.
In
this context, it is submitted that the stated legal position is erroneous and
undue emphasis of seemingly attached on the fact that the practice of law is on
a moralistic high pedestal.6
It is
vehemently and strongly argued that Rule 36 stands in direct conflict with the
cherished constitutional principles and especially as enshrined in Article
19(1)(a) of the Constitution of India.
Article 19(1)(a) of the Constitution of India reads as :
“All Citizens
shall have the right to freedom of speech and expression.”
The Supreme
Court in Tata Yellow Pages Case7 extended the protection
provided under Article 19(1)(a) to commercial speech i.e. advertising.
Advertising
is of necessity not only for the advertiser, but also for the recipient public,
as it plays an important role in disseminating useful information.
Rendering
professional legal services is a business proposition8 and
advertising of such comes within the definition of commercial speech .
This argument is further strengthened by observation of the
Supreme Court in Sakal Papers Vs. Union of India,9 wherein,
it has held that,
“The
right to freedom of speech cannot be taken away with the object of placing
restrictions on the business of citizen.”
Article 19(2) allow the State to impose restrictions on the
freedom of speech and expression in the interests of sovereignty and integrity
of the nation, the security of the State, friendly relations with foreign
states, public order, decency or morality or in relation to contempt of court,
defamation or incitement to an offence.
Rule 36 does
not satisfy any of the conditions specified in Article 19(2). Furthermore, it
can with no reasonable interpretation, be claimed that the ban on advertising
is serving any social or public purpose; it is rather doing quite the opposite.
Especially, in more complex and raised communities, such restrictions may go
against the interests of public at large, as it denied proper and effective
guidance in choosing the right type of legal services that may suit their
purpose. How the people find their Advocate. Whether it is regarding seeking of divorce, settling of
property disputes or redressal consumer problems or knocking the door of the
criminal courts, a person is in bind. What you do? You ask around and pin down
on one lawyer. Finding a lawyer has generally, always been through word of
mouth.
The sole
reason on which this ban is sustaining is the perceived nobility of the
profession, which is a very abstract standard indeed not capable of judicial
interpretation. Moreover, nobility is certainly not a justifiable
classification under the constitution, thus, this restriction must be deemed
unconstitutional.
The other aspect is that the ban
on advertisement by virtue of Rule 36 and its constitutional validity and test
of Article 19(1)(g) i.e. freedom to carry on trade, profession or business.
Article 19(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 mechanism and
resources including advertisement for effective carrying of the trade or
occupation provided it does not go against the public interest. Advertisement
can go against public interest only when it is immoral or obscene or present
something which is illegal and goes against pubic morality. Any blanket ban on
this right would be unreasonable, especially when there is a specialized
statutory body that would examine the content of the advertisement.
Another view of examining this aspect in the light of Consumer
Protection Act, 1986, a question circulating in the legal circles is whether profession
falls under the category of trade or business, so as to avail the above right
has been dealt in number of cases. In number of judgments, it has been held
that legal services come within the preview of Section 2(1)(g) of the Consumer
Protection Act, 1986. It is settled position of law now that “there can be
deficiency of service rendered by a lawyer also”
The Madras
High Court has also held that in view of Section 3 of Consumer Protection Act,
1986, Consumer Redressal Forums have jurisdiction to deal with the claims
against Advocates.10
Thus, we may
say that legal services are becoming subject of trade related laws where
consumerism and market forces should be given adequate space.
Analyzing
the totality of arguments for and against the advertisement by the Advocates,
the arguments against arguments are well founded and are acceptable to a
certain limit. The apprehensions are reasonable. Therefore, giving due regard
to these apprehensions, it is desirable that a regulated mechanism be formulated
for advertising. The resolution passed
by the Bar Council of India and the same was produced before the Hon’ble
Supreme Court11, though the resolution has not been yet notified and
implemented. It is hoped that this measure shall take care of any malpractice
of misrepresentation, deceptiveness and false advertisement that would effect
the society and degrade the nobility of this profession.
Now you may
find a lawyer of your choice at the click of a mouse as the bar council of
_________________________________________________
1. Deshta,
S.(2001) Legal Profession in
2. (AIR 1976 Bom. 335)
3. Bar Council of
4. Indian Council of Legal
Aid and Advice Vs. Bar Council of
5. R.N.
Sharma, Advocate Vs. State of
6. Khanna,
A.et.al. (2003) Lawyers and Advertising; the need to review the law,
20(2&3) Indian Bar Review 411, at P-419.
7. Tata PressLtd. V. Mahanagar Telephones Ltd. AIR 1995 SC 2438.
8. Dharam Vir
Singh V. Vinod Mahajan, AIR 1985 P&H 169 at P. 171, it has been held that
the expression ‘business’ would include the practice of an advocate or medical
practitioner.
9. AIR 1962 SC
305, at p. 313.
10. K. Vishnu
Vs. National Consumer Disputes Redresal Commission and another; AIR 2000AP 518;
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