INTRODUCTION
The outbreak of COVID-19 has roiled and disrupted every sphere of the country. This unprecedented situation has forced every sector of the country to adopt work from home and virtual hearings in the courts become the norm. Due to virtual hearings in the court, legal fraternity such as lawyers is continuously struggling with the outdated provision which prohibits the advertising activity by lawyers. Due to this provision, many lawyers who are not well-established or novice in their field is facing issue in running their livelihood.
This article has tried to explain the problem faced by lawyers during this pandemic because of the binding directive of not advertising their activities.
WHICH LAW PROHIBITS LAWYERS FOR ADVERTISEMENT OF LEGAL SERVICES?
Lawyers in India are prohibited from advertising their services and this prohibition can be understood in two ways, i.e. there are some ethical reasons for prohibition and there are some legal reasons also. Ethical and legal reasons are explained further.
There are some ethical dilemmas attached to this profession due to which advertisement of services by the lawyers is prohibited. Advertisement is prohibited to maintain the dignity of the profession. Since the practice of law is considered as the noble profession which provides legal services instead of providing some commercial services, it should not be tainted with jealousy and false advertising.
Lawyers are not given the right to publicize their work to solicit clients and there is a statutory prohibition behind it. The Advocates Act, 1961 allows the Bar Council of India (hereinafter, BCI) to make rules and regulations to discharge its function, and in furtherance of that BCI come up with the rules[1] prohibits lawyers to advertise about their services. This rule prescribes the complete ban on advertisement but in the case of V.B. Joshi v. Union of India[2], Supreme Court relaxed the norms of advertising allowing the lawyers to furnish basic information with the declaration that the said information is true. In pursuant to this decision, BCI in 2008 amended the rules which stipulate that lawyers have the right to furnish some basic information about them. Basic information can include their name, academic and professional qualifications, enrollment number, and areas of practice. And, if any additional information will be furnished by a lawyer then he will be liable for professional misconduct Advocates Act, 1961[3].
PROHIBITION ON ADVERTISEMENT VIOLATES ARTICLE 19 OF LAWYERS
The Constitution of India guarantees Freedom of speech and expression to the citizen with some restrictions[4]. But, these restrictions do not include the prohibition of advertisement of legal services by lawyers in any manner. Supreme Court in the case of Tata Yellow Pages v. MTNL[5] stated that advertising is protected under Article 19(1)(a) of Constitution. Supreme Court also held that the right to freedom of speech and expression cannot be abridged by imposing restrictions on the business of citizens. But Rule 36[6] of BCI contravenes the fundamental rights of legal practitioners;also it does not stand in conformity with any of the exceptions of Article 19.
Right to practice their trade and profession is a constitutional right which implies that they can avail the resources and opportunities for effectively carrying out their trade. So, legal practitioners can also use the method of advertisement as an opportunity to practice their profession, and hence if it is prohibited then it infringes their fundamental right. So, to protect their fundamental right minimum level of advertisement should be allowed to prevent false advertising.
SHOULD ADVERTISING BE ALLOWED DURING THIS PANDEMIC?
Due to this pandemic, every sector of the country has changed the mode of working from physical exposure to online working. Similarly, legal fraternity and Indian courts also adopted the online medium for the continuation of providing justice to society. Similarly, in this pandemic, legal practitioners had been hoping for the ease of restrictions in advertising. Law is a field that is dynamic in nature and needs to be changed according to the situation. The time and mode of working have changed for lawyers which reduces the physical attraction of the public with them. Hence, there is a requirement to have the mechanism through which they can represent themselves in public and the public would be able to know about them. As per the common law principles, the legal system needs changes according to the time and change in society. But, still, lawyers are not allowed to advertise in this pandemic period which is impeding their potential to grow and creating many problems for them.
Other countries such as UK and the USA did have an absolute prohibition on legal advertising without any exceptions till 1990 and 1977, but these countries revamped their regulations and modified them following the norms of globalization and liberalization. They have adapted some changes according to the situation in their country. Similarly, India should also look upon this matter to liberalize this provision and legal advertising should be allowed.
The Indian Government also needs to focus on this situation where lawyers due to this pandemic are facing many problems.Lawyers who are not well-established and just passed out from law schools to practice litigation are facing problems in earning their livelihood. If advertising would have been allowed, it would have benefitted the new lawyers in earning their livelihood easily. This problem of low income has started creating the problem of depression and numbers of suicide cases are increasing day by day.[7]
To solve this problem and allowing the lawyers to advertise, a plea has been filed in Supreme Court to issue directions to the Bar Council of India to allow advertisement of services offered by lawyers till March 2021.[8]Steps have been taken by lawyers by filing the petition to solve the problem of facing in earning their livelihood, to reduce the number of suicides, etc. But this petition has asked the Hon’ble court to allow advertising only till March 2021. The future is still uncertain. Further, there is no demarcation of what constitutes an advertisement, and what does not.It is to be noted that in newspapers and in huge flex boards’,the names and photographs of lawyers associated with law firms are being published Apart from this, names of lawyers representing clients in famous cases are also being published in newspapers. All this creates an air of uncertainty. Thus, BCI should try to formulate some clear rules for the same.
ANALYSIS AND SUGGESTIONS
According to the present scenario and development in the legal industry, allowing legal advertising subject to some restrictions is important. India can allow the legal advertising by formulating one regulatory code which will regulate the advertisements in the legal and non-legal field so that any fraud and misuse of right cannot be exercised by the lawyers and other professionals. There should be one provision in this code which will state for the establishment of one authority who will deal with all the cases related to it. When this will be allowed, all the information to be posted by lawyers online or offline should be verified from this authority first before posting or publishing it. This code should not confer the absolute right of advertising their legal services so as to prevent fraud and unscrupulous advertisements. When this code will allow legal advertising,it will serve as a boon for a novice lawyer since already established firms and lawyers get work easily on the basis of reputation but novice lawyers or first-generation lawyers lag behind.This code will help in bringing out new talent and everybody will have the chance to prosper.
In 2008, BCI allowed legal service providers to have an online presence but ignored the fact that the majority of the population does not have access to the internet connection. In this condition, there is a need to rely on the method of traditional advertisement to have great access to the public and it will enhance the co-ordination between clients and lawyers also. Also, prohibition on advertisement is infringing the right to information and awareness which the client has to have been informed about his/her lawyer. By knowing the identity of a lawyer it becomes easy for the client to choose the right lawyer according to their case.
BCI can introduce the concept of “inforsting”, where lawyers will be allowed to archive their all articles, case laws in which they were involved which will be easily accessible to individuals.[9]Hence, after analyzing every right of lawyers and citizens it becomes important to understand that lawyers should be allowed to advertise their legal services to some extent by formulating one code or rules. It will help them in earning their livelihood, and also their rights will not get infringed during this pandemic.
CONCLUSION
Legal representation is a massive need in this moving world and following the current circumstances. It will be beneficial for both the lawyer and the client. There is a need to take measures by BCI to adopt some middle way to protect the right of lawyers so that they can earn their livelihood in this pandemic and novice lawyers can also get a chance to excel in their career. Allowing advertisements will also help to foster the legal industry which generally depends on words coming from mouths. India has a huge chunk of lawyers and it fails to make an impact in the world, so new ways should be adopted to face this changing scenario in this pandemic and allow legal service providers to advertise themselves. Allowing advertisements of legal services will also justify the “Cab-Rank rule“[10], the client would be more aware of the identity of the lawyer and can approach the lawyer who would do justice to him.
By-
Dharmashastra National Law University
[1]Rule 36, Section IV, Chapter II, Part VI, Bar Council of India Rules, 2008.
[2]V.B. Joshi v. Union of India, Writ Petition (Civil) no. 532 of 2000.
[3] The Advocates Act, S. 35, (1961).
[4] Indian Consti. art. 19, $1, cl. a.
[5]Tata Yellow Pages v. MTNL, AIR 1995 SC 2438.
[6] Supra note 1.
[7]Sanya Talwar, COVID19: Permit Advocates To Advertise, Take Up Alternative Works During Lockdown: Plea In SC Seeks Directions To BCI & State Bar Councils For Desired Changes, Live Law, (Jun 30, 2020, 4:13 PM),https://www.livelaw.in/top-stories/covid19-permit-advocates-to-advertise-take-up-alternative-works-during-lockdown-plea-in-sc-seeks-directions-to-bci-state-bar-councils-for-desired-changes-159149?infinitescroll=1.
[8]Ibid.
[9] M.L. Sarin & Harpreet Giani, Prohibition of Advertisement in the Legal Services Sector, India Law Journal 1(1), http://www.indialawjournal.org/archives/volume1/issue_1/legal_articles_sarin.html.
[10] This rule finds its mention in Bar Council of India rules. The logic behind this representation is based on the rule of thumb which says that everyone is presumed to be innocent until proven guilty. If any person will not be allowed for legal representation in the court of law, his/her right to fair-hearing will get infringed.
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