By allowing lawyers to advertise their services and experience, the Bar Council of India can bridge this inequality of access and make it a level-playing field for all lawyers entering litigation.
THE Chief Justice of India, N.V. Ramana, while delivering the convocation address at NALSAR University, Hyderabad in December last year, lamented that not enough students from National Law Universities were joining litigation. He termed this as “one of the most disappointing outcomes of present-day legal education”.
This has been a long-standing issue, with several legal luminaries urging law school graduates to join litigation. In 2017, Justice D.Y. Chandrachud had remarked that there was an urgent “need to address the factors that impede young lawyers from joining litigation.”
When law graduates enter litigation, those with legal backgrounds are placed at an advantage due to their familial access to other lawyers and an already-established clientele. Meanwhile, first-generation lawyers remain stuck in a loop – neither can they advertise their services, nor can they attract new clients.
Litigation usually fails to appeal to talented law graduates except those with a family background in litigation. Placement patterns from several prominent law schools reveal that new entrants are keen to pick non-litigation career choices because of the common perception that litigation is primarily meant for those from legal backgrounds only. According to A Survey of Practicing before the High Courts published by Vidhi Centre for Legal Policy’s JALDI [Justice, Access and Lowering Delays in India] initiative conducted in 2019, around 40 per cent of the survey respondents came from families of lawyers. Moreover, a 2010 survey by the Research Foundation for Governance in India found that 85 per cent of law graduates who opted for litigation had a family background in legal practice, and that all the graduates who opted for a non-litigation career had no such family background.
There are entry-level regulatory barriers to litigation in India, such as a ban on advertising and stringent restrictions on moonlighting. The ban on advertising in particular disproportionately impacts young, first-generation lawyers without family backgrounds and connections.
Here, I argue for the watering down of Rule 36 of the Bar Council of India [BCI] Rules. To support this argument, I analyse the discriminatory nature of the ban and advocate for a better regulative framework if the ban is lifted.
Section 49(1) of the Advocates Act, 1961 empowers the BCI to make rules and regulations to discharge its functions under the Act. According to Rule 36 of the BCI Rules, “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 sign-board or name-plate should be of a reasonable size.” Violating Rule 36 will make an advocate liable under Section 35 of the Advocates Act for ‘Professional Misconduct.’ This ban owes its origin to British Law (Solicitor’s Act, 1933). However, in 2007, the U.K. passed a new Code that allowed lawyers and firms to publicise their practice area and expertise. India clearly did not follow suit.
In the case of C.D. Sekkizhar vs. Secretary, Bar Council, Madras (1966), the Madras High Court held that the ban on advertising was necessary to prevent feelings of jealousy which were unbecoming of the “noble profession” that is law. Later, the Supreme Court, in Bar Council of Maharashtra vs. M. V. Dabholkar (1975),held that “the canons 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 no trade, briefs no merchandise and so the leaven of commercial competition or procurement should not vulgarise the legal profession.” Several cases were filed in High Courts and the Supreme Court to unmask the arbitrary nature of Rule 36 and its unconstitutionality, but none of them succeeded.
In a landmark case before the U.S. Supreme Court (Bates vs. State Bar of Arizona) in 1977, the court held that a blanket prohibition on advertisement by legal professionals was unconstitutional as it violated their freedom of speech and expression. Interestingly, the court also held that the “belief that lawyers are somehow above “trade” is an anachronism” and cannot be given precedence over constitutional principles.
Eminent persons from the legal profession in India often rue that the practice of law is transforming into a trade. For instance, Justice Jasti Chelameswar termed this transformation as an “uncomfortable feeling” in an interview in 2018. However, it is important to accept this reality, and accordingly pass measures and regulations.
In 2008, the BCI finally amended Rule 36 to allow advocates to provide details such as their names, Post Qualification Experience, areas of practice, and personal details on their websites. However, because only around 45 per cent of the Indian population has access to the internet, many people may not be able to access these details. Although this is a progressive amendment, we still have a long way to go.
Discriminatory nature of the ban
Rule 36 is premised on the reasoning that law is not a trade but a ‘noble’ profession that must never be commercialised. However, the ground reality is that this notion is not practically applicable.
The Department of Consumer Affairs could also consider supporting the inclusion of legal professionals within the Consumer Protection Act, 2019. This would provide a better regulatory framework in comparison to the peer regulation by the BCI.
In litigation, a lawyer can attract clients when they have a solid reputation. However, such a reputation is built by representing more and more clients and winning cases for them. This is a classic chicken and egg situation wherein it is impossible to deal with a problem because the solution is also the cause of the problem. Thus, when law graduates enter litigation, those with legal backgrounds can easily bypass this problem as they are placed at an advantage due to their familial access to other lawyers and an already-established clientele. Meanwhile, first-generation lawyers remain stuck in a loop – neither can they advertise their services, nor can they attract new clients. By allowing lawyers to advertise their services and experience, the BCI can bridge this inequality of access and bring about a level playing field for all lawyers entering litigation.
In July 2020, a writ petition was filed before the Supreme Court, highlighting the financial difficulties and livelihood challenges that lawyers faced during the pandemic. The petition urged the court to allow lawyers to advertise their services during the pandemic. The court consequently issued notice to the respondent (the BCI) to respond to the petition. However, there has been no development since then, and the case remains pending even today.
The BCI must reflect on the nature of this ban and its impact on young and unestablished lawyers. An unregulated relaxation would have harmful consequences and could lead to misuse. Therefore, it is essential to have regulatory mechanisms to keep a check on the nature of advertisements by legal professionals. This is crucial because misconduct by lawyers causes harm not only to the clients but also to the justice delivery system.
The BCI could engage with advocates and civil society organisations to develop guidelines that allow advertisements in a manner that promotes legal awareness and benefits the public. The Department of Consumer Affairs could also consider supporting the inclusion of legal professionals within the Consumer Protection Act, 2019. This would provide a better regulatory framework in comparison to the peer regulation by the BCI. The unwillingness of the BCI to act is evident in several instances of misconduct being ignored by the BCI and State Bar Councils. Furthermore, there is no reason why lawyers should not be included within the Act when all other professions (including doctors) fall within its ambit, and no specific exemption is provided for lawyers.
Therefore, guidelines on advertisements should provide advocates a level-playing field to promote their services to clients and give them an opportunity to assess advocates’ skills before engaging with them in litigation. This must be done while maintaining adequate checks and balances to prevent unscrupulous advertising. By taking inspiration from the U.S., the U.K., and the European Union, we hope that India also loosens the noose of Rule 36 sooner rather than later.