International Journal of Law

International Journal of Law

ISSN: 2455-2194; Impact Factor: RJIF 5.12
Received: 26-05-2020; Accepted: 12-06-2020; Published: 27-06-2020
www.lawjournals.org
Volume 6; Issue 4; 2020; Page No. 01-03

Advertising by advocates in India: The right to advertise professional ethics

Aadhitya Logeshen R
O.P. Jindal Global University, Jindal Global Law School, BBA LLB 2015, Sonipat Narela Road, Near Jagdishpur Village,
Sonipat, Haryana, India

Abstract
This paper attempts to analyze the reasons for prohibiting advertisements by legal professionals, the nature and scope of the
prohibition, the constitutional validity of the prohibition and the efficacy of banning advertisements by legal professions under
the Bar Council of India Rules in the present day situation while providing a comparative study with other legal systems
around the world.

Keywords: advertising, ban on advertising, legal advertising, BCI rules, legal profession

1. Introduction law crimes of champerty, and common barratry. Though the

India is a country with more than a million practicing conception of the legal profession being known as the
lawyers, certainly making it one of the biggest contributors “noble profession” ensued excessively stringent laws and
to the global legal business. Nevertheless, the restrictive guidelines while being justified on the grounds of
commercialization of the legal profession In India has “dignity of profession”.
always been discouraged by the legislature of the country, Justice Krishna Iyer has famously quoted, “…the canons of
which includes the right to advertise. Hence, in India ethics and propriety for the legal profession totally taboo
advertising in the legal profession is prohibited. This conduct by way of soliciting, advertising, scrambling and
prohibition attempts to prevent any lawyer from influencing other obnoxious practices…” taking a strong stand against
any prospective client seeking redressal within the legal the practice of advertising for lawyers. There have been
system also while preventing any unhealthy competition numerous judgements over the years emphasizing the
between legal professionals, which might lead to a decline nobility of the legal profession, such as the case of Indian
in the quality of legal services. Lawyers are considered as Council of Legal Aid v. Bar Council of India, where the
social engineers in society, who bring about social Supreme Court highlighted the duty of a lawyer ineffective
advancements and development. But unfortunately, such administration of justice while abiding by the Code of
restrictions lead to an insufficiency of information on the Conduct of the noble profession. Also stating that the legal
market regarding India’s legal practice. profession is empty without its ethics and moral ideals [1].
This paper looks to critically analyze the current set of
prohibitive Guidelines of Advertising for Lawyers set by the 2. Bar Council of India
Bar Council of India and the general stance taken by the As given under Section 49 of the Advocates Act, the Bar
legislature towards the subject with comparative positions of Council of India (BCI) has the right to make new rules and
law from across the globe. Conclusively, providing the amend pre-existing laws under the Act to discharge its
advantages and disadvantages of the varied approaches duties as given under the BCI Rules [2]. Rule 36 of the Bar
taken on the subject. Council of India Rules specifically states that lawyers and
law firms cannot directly or indirectly advertise their
Research Methods and Materials practice, either through online or offline methods [3]. It
The researcher has adopted the doctrinal research further lays down certain guidelines to be followed and
methodology in the compilation, organization, interpretation certain exceptions available to lawyers under the rule. There
and systematization of the primary and secondary sources in are even restrictions on the display of the person’s title or
order to carry out the study. designation on their signboard/nameplate.
Earlier to the 2008 amendment of the Bar Council of India
1. Historical Origins Rules, there was a strict and complete ban on any form of
India has an extensive and rich legal history. This advertising for lawyers and law firms. Soon after the
prohibition of advertising stems from the old Colonial passing of the 2008 amendment, the rule on advertising was
British Common law notion along with traditional Indian mildly liberalized. The rule under section IV of the BCI
values of the Rig Vedic era that the legal profession is a Rules was amended after a resolution [4] was passed in front
“noble profession.” Though historically the ban on
advertising has been attributed to being originated in 1
Indian Council of Legal Aid and Advice v. Bar Council of India [(1995) 1
England, there are multiple debates surrounding its origins. SCC 732]
It has been suggested since that advertising and solicitation 2
Section 49, Advocates Act, 1961
3
were usually understood as identical, it is detailed that this Rule 36, Section IV, Chapter II - Part IV, Bar Council of India Rules,
2008
practice of ban on advertising was derived from Common 4
Resolution No., 50 / 2008 dated [24.03.2008]

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of a three-judge panel of the Supreme Court. Hence, cards, pro bono work, seminars, and circular letters, etc [9].
according to the newly amended rule 36 along with the There have been various judgements by the Indian Courts
relevant schedule, the furnishing of certain information by trying to define an advertisement and to prevent lawyers
advocates and law firms on their website were allowed. As from exploiting loopholes under the BCI Rule for many
per rule 36 of the BCI Rules, the following information [5] years now. In the case of State of Uttar Pradesh and Anr. v.
can be allowed to be displayed on a legal professional’s Johri Mal, the court had to answer the question of whether
website along with a written legal declaration that the the submission of biodata pursuant of notice would amount
information stated is indeed true, to advertising or soliciting under Rule 36 of the BCI Rules
[10]
1. Name . This was answered in the case of B. Rajeswar Reddy
2. Address and Ors. V. K. Narasimhachari and Ors, the court stated
3. Contact Details [Telephone Numbers, Email] that “ …filing of application, pursuant to a notification
4. Enrolment Details [Enrolment Number, Date of issued by the Metropolitan Sessions Judge, by the advocates
Enrolment, Name of the enrolled State Bar Council, offering their services for the post of Public Prosecutor and
Name of the relevant Bar Association] Additional Public Prosecutor would not by itself amount to
5. Professional and Academic Qualification solicitation of work within the meaning of Rule 36 of the
6. Areas of Practice Rules [11].
Whereas in the case of Government Pleader v. S. A.
Rule 36 also further goes on to state that such information Pleader, it was stated that an advocate posting a card
provided cannot be used in any form to aid or to make providing his name, address and designation would be
available any illegal practice of law by any legal authority. considered as an advertisement, thus violating professional
conduct [12]. Newspaper articles and advertisements where
1. Judicial Standing on the ban of advertising the writer labels himself as an advocate practicing in the
Over the years, the Indian Judiciary has always maintained courts have also been banned [13]. Another landmark
its stand that the legal profession is one of utmost nobility. judgement of J.N. Gupta v. D.C. Singhania & J.K. Gupta it
The lawyers must act in accordance with the honour and was stated that publications made in the National or
dignity the profession carries. Many High Court and International Bar directory would not violate Rule 36 of the
Supreme Court judgements [6] over the years have BCI rules as it is used as public information. But any
maintained that the objective of the legal profession is publication on a newspaper made for publicity is in clear
public service and since a majority of the Indian population breach of the rule and is deemed to be professional
is illiterate about the machinery of the courts, the lawyers misconduct [14].
must act in a responsible manner. Further stating that
allowing advertising for advocates could lead to exploitation 2. Constitutional Validity of Rule 36 of the BCI Rules
of the public in certain situations. Since the inception of Rule 36 under the BCI Rules, it
One of the biggest landmark judgements based on Rule 36 remains a fiercely debated subject filled with many protests
of the BCI Rules is the Supreme Court case of Bar Council and controversies from within the legal community.
of Maharashtra v. M.V. Dabholkar and Others. It basically The fundamental objective of any advertisement is to
stated that Rule 36 has fairly set out rules of professional promote one’s services and bring it to the notice of the
conduct for the lawyers to follow, though canons of ethics public. In many ways, an advertisement is a form of speech
existed prior to the implementation of the rule. Professional or expression of oneself [15], and according to the Indian
ethics weren’t just born out of Rule 36 but were indeed Constitution, under Article 19 the right to freedom of speech
bought up along with the organized Bar, while morality was and expression is a fundamental right available to every
born with the civilized society. Justice Krishna Iyer in the citizen of India. Thus, it has been debated that lawyers are
case stated that “the canon of ethics and propriety for the restricted from exercising their fundamental rights
legal profession totally taboo conduct by way of soliciting, guaranteed under the Constitution of India. However, in the
advertising, scrambling and other obnoxious practices, landmark case of Hamdard Dawakhana, the court ruled that
subtle or clumsiness, for the betterment of the legal advertisements that are not in the interest of the public do
business. The law is not a trade, briefs no merchandise and not fall under the protection of Article 19(1)(a). In the
to the heaven of commercial competition or procurement present scenario, it was held the advertisements by
should not vulgarise the legal profession” [7]. Though as advocates are commercial in nature and not in the interest of
stated before post 2008, certain restrictions were relaxed. the public [16].
There have been certain cases such as Bar Council of India This judgement has been scrutinised saying that the
v. A.K. Balaji and Others which have clearly stated that advocates would then be protected under Article 19(1)(g) as
advertising directly or indirectly is a serious breach of such a blanket ban on advertising would disturb their right
misconduct by the advocate [8].
Nevertheless, the constant question that arises is that of,
‘what constitutes as an advertisement’ by a lawyer or a law
9
Shivam Gomber, Right to Advertise for Lawyers – Udgam Vigyati Vol. 3
(2016)
firm. Over time many lawyers have advertised or tried to 10
Civil Appeal 963-64 of 2000
circumvent the BCI Rules by advertising through visiting 11
[ 2001 (6) ALT 104]
12
AIR 1929 Bombay 335
13
Re: (Thirteen) Advocates v. Unknown – [ AIR 1934 All 1067]
14
BCI TR, Case No. 38/ [1994]
5 15
Rule 36, Section IV, Chapter II - Part IV, Bar Council of India Rules, Teacher, Law. (November 2013). Advertising Done by the Attorneys for
2008 the Services They Provide. https://www.lawteacher.net/free-law-
6
AIR 1984 Mad. 35 essays/constitutional-law/advertising-done-by-the-attorneys-for-the-
7
Bar Council of Maharashtra v. M.V. Dabholkar (1976) 2 SCC 291 services-they-provide-constitutional-law-essay.php?vref=1
8 16
Bar Council of India v. A.K. Balaji and Others (2018) 5 SCC 379 [SCR 1960 (2) 671]

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to conduct free trade and commerce. In the case of Tata about the lawyer’s services [22] or advertising professional
Yellow Pages v. MTNL, the Supreme Court held that employment for any pecuniary gain [23].
commercial speech falls within the ambit of freedom of
speech and expression [17]. Also, the argument that such a 5. Changing Face of the Legal Profession
ban would fall under reasonable restrictions would be With regards to permitting advertisements by legal
irrational as it is not against public policy or immoral. The professions, opinions stand ambiguous, wherein one set of
right to advertise for advocates would just provide the people believe in permitting the use of advertisements.
public with more options to make an informed decision. Others believe that this commercial outlook may tamper the
Though there is no judgement which explicitly states Rule ideals of public policy’s access to legal services. An added
36 to be unconstitutional in nature, there have been recent ambiguity that exists in the system deals with defining an
petitions in the Supreme Court challenging its validity. One advertisement and what its’ adjuncts.
of which lead to the 2008 amendment by the Supreme Court With the country’s judgement on advertisements being
allowing advocates and law firms to display certain obscure, it has been seen that services provided by lawyers
information as specified on their websites. have been divulged onto hoardings and posters, with their
names and designation. Cases reported by media often
3. Position of Law in the United Kingdom portray the outcome and judgements of eminent clients and
Historically, due to the old Victorian rules of England, all these are broadcasted in media channels, in the form of
forms of advertisements for legal practitioners were banned. interviews and recordings, and these become a source of
Though, towards the 1970s, because of the threat of advertisement. Various established law firms also use names
competition and subsequent fallouts the restrictions on of deep-rooted lawyers as a source of ennobling their firm.
advertising were relaxed. After a review by the Monopolies Yet other forms of advertisement include publicizing
and Mergers Commission in 1970 along with the Office of articles written by associates, flamboyancy of firms through
Fair Trading in 1986, where the advantages of legal achievements gained by their members and providing users
advertisements were highlighted, and the ban was lifted [18]. with various disclaimers before choosing a firm. This then
From the rigid standards of advertising, a new regime for constitutes advertisement, and the public needs to accept the
advertising was born. The current law governing advertising fact that not all activities can be controlled [24]. However,
for all legal practitioners is the Solicitors’ Publicity Code, one must acknowledge the mere fact that the rapid changes
1990 which was recently amended to modernize in 2016. in the legal profession and laws relating to consumerism
Also, the Solicitors Regulation Authority (SRA) should have borne several reforms, which keep a check on
authorize all information furnished by advocates publicly synchronized advertising.
and all restrictions on advertising are governed by the SRA. Considering the case of K. Vishnu v. National Consumer
The Courts have also held that no advertisement should Disputes Redressal Commission & Anr., the judgement
impair the integrity and disgrace the legal community [19]. revealed that the legal profession was a product of the
Consumer Protection Act, 1986. The report presented under
4. Position of Law in the United States of America the leadership of S.V.S Raghavan concluded that it was
The United States and India had comparable restrictions on inevitable to curb legislative restrictions and that these have
equal terms with a complete ban on advertising. Canon 27 implications on the growth and opportunities of law firms,
of the Profession Ethics of American Bar Association preventing them from competing globally and procuring a
(ABA), similar to the modern-day Rule 36 in India, stated global stance to represent India’s expertise, affecting the
advertising by legal practitioners was unprofessional and choice and freedom of consumers [25]. In light of this case,
illegal [20]. This stand was subsequently changed in 1977 the Supreme Court demarcated legal services under the
after the judgement of the US Supreme Court in Bates v. umbrella of an industry under the Industrial Disputes Act,
State of Arizona. In this case, two lawyers started pro bono 1947.
legal services for people who could not afford legal aid. The To conclude, it can be said that legal services have been
only feasible manner of operation was through advertising under the vision of consumer protection and trade laws,
their services, which they admitted was against the law at adopting a path of commercialization, which in all means is
the time. Subsequently, the Court, in this case, held that unavoidable.
such a blanket ban on advertising would be unconstitutional
and an infringement of the First Amendment allowing 6. Advantages of permitting Legal Advertising
freedom of speech and expression. Hence, the US Supreme 1. Greater opportunities for novice lawyers and
Court made the right to advertise a constitutionally independent councils
protected right [21]. Allowing advertising would allow for beginner lawyers to
Currently, advertising in the United States is administered advertise their services
by the Model Rules of Professional Conduct, 1983. All and claim and equal opportunity in the legal market.
forms of advertisements are allowed subject to the
conditions that there is no false or misleading information 2. Right to information and awareness

17 22
1995 AIR 2438 Rule 7.1, Model Rules of Professional Conduct, 1983
18 23
Bolocan, supra note 6, at 22 Rule 7.3, Model Rules of Professional Conduct, 1983
19 24
Teacher, Law. (November 2013). Advertising Done by the Attorneys for Lalit Bhasin, Law firms find loopholes to promote their services -
the Services They Provide. https://www.lawteacher.net/free-law- SOCIETY OF INDIAN LAW FIRMS
essays/constitutional-law/advertising-done-by-the-attorneys-for-the- http://www.livemint.com/Companies/vqsXsEeGYuqPli9I8TPL0O/Law-
services-they-provide-constitutional-law-essay.php?vref=1 firmsfind-
20
Model Rules of Professional Conduct, 1969 loopholes-to-promote-their-services.html (last updated July 5, 2013)
21 25
Bates v. State of Arizona 433 U.S. 350 (2000) ALD (5) 367

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International Journal of Law www.lawjournals.org

Due to the ban on advertising, potential clients are not [24.03.2008]

provided access to the right lawyer. Advertising plays a vital 3. Rule 36, Section IV, Chapter II - Part IV, Bar Council
role in aiding the decision making of the public. of India Rules, 2008 AIR Mad. 35, 1984
4. Bar Council of Maharashtra v. M.V. Dabholkar. 2 SCC
3. Recognition 291, 1976.
Whether nationally or internationally, Indian lawyers are 5. Bar Council of India v. A.K. Balaji and Others 5 SCC
disadvantaged compared to foreign legal professionals as 379, 2018.
exposure in the international market is almost non-existent. 6. Shivam Gomber, Right to Advertise for Lawyers –
Advertising would allow Indian lawyers and law firms to Udgam Vigyati Vol. 3 Civil Appeal 963-64 of 2000
attract potential foreign clientele in this age of globalization. [2001 (6) ALT 104], 2016.
7. AIR Bombay 335, 1929.
4. Lack of internet access in rural areas 8. Re: (Thirteen) Advocates v. Unknown – [AIR 1934 All
India is not a very technologically advanced country with 1067]
much of the rural population lacking vital internet resources. 9. BCI TR, Case No. 38, 1994.
Hence, Rule 36, which allows lawyers to display relevant 10. Teacher, Law. Advertising Done by the Attorneys for
information, is not adequate as other forms of advertising the Services They Provide, 2013.
are not available to the public. https://www.lawteacher.net/free-law-
essays/constitutional-law/advertising-done-by-the-
7. Disadvantages of permitting Legal Advertising attorneys-for-the-services-they-provide-constitutional-
1. Misuse law-essay.php?vref=1 [SCR 1960 (2) 671]
If Legal Advertising is not regulated properly by the 11. AIR 2438, 1995.
adequate authorities, this will allow the big law firms and 12. Bolocan, supra note 6, at 22 Teacher, Law.
lawyers with deep pockets to misuse this rule grossly. (November). Advertising Done by the Attorneys for the
Services They Provide, 2013.
2. Shifting priorities https://www.lawteacher.net/free-law-
The BCI and the Indian Courts are hesitant in allowing legal essays/constitutional-law/advertising-done-by-the-
advertising as it could shift the focus of lawyers into an attorneys-for-the-services-they-provide-constitutional-
unhealthy competition rather than improving their quality of law-essay.php?vref=1
services. 13. Model Rules of Professional Conduct, 1969.
14. Bates v. State of Arizona 433 U.S. 350
8. Conclusion 15. Rule 7.1, Model Rules of Professional Conduct, 1983.
This rule on the ban of advertising in the legal profession 16. Rule 7.3, Model Rules of Professional Conduct, 1983.
came about through the British Victorian Colonial times in 17. Lalit Bhasin, Law firms find loopholes to promote their
India, and our laws have refrained from adapting to the services - SOCIETY OF INDIAN LAW FIRMS
changing nature of legal services in the country. The legal 18. http://www.livemint.com/Companies/vqsXsEeGYuqPli
profession is, no doubt, one of the oldest and a very 9I8TPL0O/Law-firmsfind-
respectable profession. Hence, in a culture-oriented country 19. loopholes-to-promote-their-services.html (last updated
like India, with its safeguarded values and morals, it is July 5, 2013.
difficult to adapt these norms quickly. The Indian 20. ALD (5) 367, 2000.
Constitution states that any restriction must be reasonable
and in the interest of the public. A total ban on advertising is
not the solution and even with the 2008 amendments to Rule
36 it is still excessive in nature. The rule on ban of
advertised was perceived during colonial times. With
countries like United Kingdom and the United States
updating their laws, the Indian legal system is left behind.
With rapid globalization and an exponential increase in
global law firms, certain restrictions must be relaxed. If not
for complete freedom of advertising, but a properly
regulated system with a suitable code of conduct keeping in
mind the dignity and integrity of the profession in a medium
available to the majority of the population which would give
the people a choice to make an informed decision. The
restrictions on advertising are good neither for the lawyers
nor for the clients. It is time for the Bar Council of India
along with the relevant authorities realize it soon and end
this archaic practice.

9. References
1. Indian Council of Legal Aid and Advice v. Bar Council
of India [(1995) 1 SCC 732] Section 49, Advocates
Act, 1961.
2. Rule 36, Section IV, Chapter II - Part IV, Bar Council
of India Rules, 2008. Resolution No., 50 / 2008 dated