APPRAISAL OF ADVERTISEMENT IN LEGAL PROFESSION – Ashish Gupta
Legal Profession is not merchandise nor a trade nor business. The Legal profession is a standout among the most honourable profession on this planet. It is an insightful, noble, generous, respectable, purified profession of the society and an advocate is the most responsible, accountable and intellectual person of the community and his acts are the incredible example for the society, which is essential to be regulated. To set up and keep up this pride and dignity of the legal profession, Bar Council of India, which is the statutory, administrative and regulatory authority of the legal profession, has encircled standard of conduct, decorum, and etiquette of the Bar.
Characteristics of Legal Profession
Living only for self is a narcissistic character of the person and struggling with others is a supreme effort. On this basis, the legal profession considered as a gracious, insightful, noble and dignified profession, because counsel represents their clients in the court of law and thereby protect their interest against harms cause to them. Therefore, after joining the legal profession an advocate/ lawyer/ legal practitioner comes under three types of responsibility, mentioned -
- Responsibility towards clients to be faithful to them.
- Responsibility towards the profession not to tarnish its name by any act or behaviour.
- Responsibility towards the court, and to stay a dependable part of the machinery.
Lawyers are not merely the mouthpiece of their clients but also an officer of the court. Therefore, loyal support of its members in the maintenance of noble tradition, respect for the courts and judges, faithfulness towards their clients, professional courtesy, and equal consideration to all members of the profession are the general characteristics, attributes and essential requirements of the legal profession.
Advertisement - Definition and Reason
Advertising means spreading of information about the features of the product or service to the customers to sell the product and service or increase its sale volume. The word advertisement derives from a Latin word, ad vertere, which means “to turn toward”. So it not only offers the consumers to buy goods and services but also encourages them for that, with a motive to acquire profit. According to the Oxford Dictionary, “advertisement means, to make generally or publicly known; describe publicly to (or “intending to”) sales”. Advertising can also be defined as “paid dissemination of information for selling or helping to sell commodities and services or of gaining acceptance of ideas that may cause people to think or act desired”. This definition would cover many of organisations include business organisations, governments, professionals, financial institutions, schools, social and cultural organisations, welfare groups, religious bodies and political parties.
One thing that definitions make it clear that advertising is not a free tool and the reason is to motivate the desired action. Further, profit-making is the sole and only reason of advertisements, and that is the reason it is not allowed in the legal profession, as the legal profession is not a business or trade but a profession, which provides social service to society and secures justice for all.
Advertisement by Lawyers in India
The advertisement and soliciting by a lawyer may affect the dignity of legal profession and it has been prohibited in all legal systems, whether wholly or partly. In India, Bar Council of India regulates the legal profession as well as legal education.[i] Under the functions of Bar Council of India and its power to make rules,[ii] it has enacted the Bar Council of India Rules, 1965 which is binding on all the legal professionals in India.
“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 signboard or nameplate should be of a reasonable size. The signboard or name-plate or stationery should not indicate that he is or has been President or Member of a Bar Council or 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 worker or that he has been a Judge or an Advocate General”.[iii]
By the above rule, it is clear that both direct and indirect advertising has been prohibited. Rule 36 has been challenged many times on the contention that it violates the freedom of speech and expression guaranteed under Article 19[iv]. Therefore a question always arises whether advertisement right is a fundamental right?
In the case of Hamdard Dawakhana v. Union of India[v], the Supreme Court held that “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……can not be said that the right to publish and distribute commercial advertisements advertising an individual’s business is a part of freedom of speech guaranteed by the Constitution.” In the view of this decision, the commercial advertisement is not a part of freedom of speech and expression and thus ban on advertisement for advocates is justified and within reasonable restriction as stated under Article 19(2) of the Constitution of India, 1949[vi].
It is clear that, in India, the impact of the Advocates Act, the Rules of the Bar Council of India is that advocates are prohibited from advertising their profession. Law is a noble profession so its status should be preserved. It is the nature of work which attracts and pulls the clients and not advertising or soliciting. Beyond any doubt, there is a lot of competition at the bar, and when there are so many advocates, it is hard to get noticed however it does not prove conduct such as rescue chasing. Advertising will instigate unnecessary competition, which could result in the fall of the highest traditions of the profession of law. The core aim of the ban on advertising was to keep the unique status and dignity attached to the noble profession of law.
Proposal cum Suggestion
It can be suggested that Bar Council of India and State Bar Councils should itself tell the people for the availability of the legal services on its website[vii]. Education and data given by these Bar Councils will be more fruitful than a website or commercial advertisements.
Conclusion – Establishing a New Way
Being a member of the legal fraternity, it is the prime duty of lawyers that they should always remember that, the primary goal of legal ethics is to keep up the honour and dignity of the noble profession. India is the nation with one of the largest number of advocates in the globe and Advocacy is a noble profession, if advertisement is allowed, then it would bring commercialization approach in the profession which will undermine.
[i] The Advocates Act, 1961 (Act 25 of 1961), s. 4
[ii] The Advocates Act, 1961 (Act 25 of 1961), ss. 7, 49.
[iii] Bar Council of India Rules, Part VI, Chapter II, Section IV, Rule 36.
[iv] The Constitution of India, 1949
[v] AIR 1960 SC 554
[vi] Article 19 (2) states various grounds for restricting fundamental right to free speech, it states that, “Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, 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”
[vii] The Bar Council of India, http://www.barcouncilofindia.org/ (last visited Jun 28, 2017)
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