Comment

A case to relax advertising restrictions for legal practitioners

The idea of delivering justice is innate in any civilised society. States, as political entities, embrace this idea by establishing courts. In India, understanding adopted during the Victorian era conferred on the profession of law the status of a ‘noble’ profession. Such a status required professionals to restrain themselves from developing a commercial temperament while providing legal services.

Alternative methods of dispute resolution

From a historical perspective, though other private methods of dispute resolution/settlement like mediation, conciliation and arbitration existed alongside the traditional court system, their use was limited due to various reasons including the non-binding nature of such dispute ‘settlement’ methods. However, in modern times, alternative methods of dispute resolution have started gaining relevance. Among the various alternatives, arbitration in particular, because of the legal recognition accorded to arbitral awards by the global community, has gained a wide acceptance, especially in the business community. Consequently, various institutions providing alternative dispute resolution services have been established. Through their respective business models, they have seemingly started a competition to transform India into a global arbitration hub.

Advertising restrictions

Considering the changing nature of dispute resolution services, it is pertinent to revisit the rules governing the legal profession in India in the context of the advertising restrictions imposed on lawyers and other entities providing legal services, and explore if these restrictions encompass Indian arbitral institutions.

The National Consumer Disputes Redressal Commission in D.K. Gandhi v. M. Mathias (2007) held that lawyers can be held liable under the Consumer Protection Act, 1986 for deficiency in services. Though the matter is pending before the Supreme Court, it can be suggested from the overall attitude of various judicial and quasi-judicial bodies that protection of consumer rights, also in the context of legal services, holds paramount importance. As a logical extension, it can further be suggested that consumers also have the right to have access to best quality legal services.

Here, it would be pertinent to briefly discuss the restrictions, in terms of advertising legal services, as provided by the Bar Council of India Rules (BCI Rules). Rule 36 (under Part VI, Chapter II) provides that an advocate, as a “duty to colleagues”, shall not solicit work or advertise, either directly or indirectly. It further provides that the signboard or nameplate or stationery of an advocate should not indicate that he/she specialises in any particular type of work.

With the proliferation of specialised courts and tribunals like the Appellate Tribunal for Electricity and the Competition Appellate Tribunal to effectively deal with disputes concerning complex sector-specific issues, it is difficult to appreciate the existence of such restrictive provisions where highlighting an advocate’s area of specialisation is prohibited. In addition, these restrictions also frustrate the very purpose of establishing specialised courts and tribunals.

Irrespective of severe restrictions on advertising, the legal community has been successful in finding innovative ways to advertise through sponsoring moot court competitions focussing on a particular field of law, highlighting the cases they are dealing with under the garb of a research article, making use of the social media, and so on. The proposal to revisit the Rules becomes even more compelling after considering a ridiculously ironical stance taken by the concerned regulator — the BCI. Apparently, advocates cannot advertise the legal services they offer as it will introduce the element of ‘commercialism’ in the profession, but the website of the body governing such professionals can be used as an advertising platform by other businesses like HugeDomains.

A case to relax advertising restrictions for legal practitioners
 

Further, as the advertising restrictions provided by the BCI Rules arguably do not apply to arbitral institutions in India because they offer ‘dispute resolution services’ as opposed to ‘legal services’, and also because the Rules apply only to advocates (including law firms), revisiting concerned provisions may have a positive effect on governmental initiatives for realising India’s dream of becoming a global arbitration hub.

In other countries

In the U.S., the constitutional validity of advertising restrictions was challenged in Bates v. State Bar of Arizona(1977). The Supreme Court placed commercial speech under the protection of the First Amendment (which, amongst other things, ensures free speech) because such communication may contain information of potential interest and value to the public.

In the U.K., the Solicitors’ Publicity Code, 1990 regulates but allows advertising of legal services. The information so provided should be sufficient to ensure that clients and others can make informed choices. Moreover, Singapore Legal Profession (Professional Conduct) Rules 2015 allows ‘publicity’ by legal practitioners in accordance with such rules.

With a case for relaxing the advertising restrictions, concerns like increase in cost of litigation and the likelihood of frivolous claims are bound to exist. However, sufficient safeguards in the form of welfare legislations like the Legal Services Authorities Act, 1987 (for ensuring adequate legal representation for eligible persons) along with provisions like Section 151 of the Code of Civil Procedure, 1908 (inherent power of the court to impose exemplary costs for frivolous claims) exist. The noble character of the profession would remain unaffected when ‘noble professionals’, through advertising their services, would be able to help consumers make an informed choice while subscribing for legal services to protect their rights and interests.

Somesh Dutta is an international dispute settlement lawyer working with an international law firm in Paris


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Printable version | Oct 19, 2021 7:00:55 AM | https://www.thehindu.com/opinion/op-ed/a-case-to-relax-advertising-restrictions-for-legal-practitioners/article24372921.ece

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