Advertising by Advocates:

A Critical Appraisal

By –
Mayank Jain
National Law University,
Jodhpur
A little idea of the existing
Legal Market
 Estimations put the current size of legal
off shoring in India at 61 Million $, to
become ONE BILLION by 2015.
 Britney Spears at a mere 36 Cents, while
“Mesothelioma Attorney Texas” was at 65
$ on google AdSense.
 Currently, advertising in all forms is
prohibited in India vide Rule 36 of the BCI
Rules.
 Therefore, the question being, should
legal services be allowed to be
marketed?
Rule 36 – What is it?
 Genesis: Borrowed from the Victorian Era.

 What it means: Rule 36 restricts

advertising by lawyers in all forms.

 The rule states that a lawyer cannot

solicit work directly or indirectly in any
medium whatsoever.

 “Indirectly” interpreted in a strict sense

does not permit business cards, directory
listings or seminar ceremonies and any
felicitations. No personal communication,
touts, manifestoes allowed. All possible
means of communication with a
prospective client are blocked.
Restrictions on the size of name boards
Judicial opinion on Rule
36.
 TheCourts have taken a rather archaic
view of this rule. In the case of BCI v. M.V.
Dhabolkar, the court held that:

◦ Law is not a trade, not briefs, not

merchandise, and so the heaven of
commercial competition should not
vulgarize the legal profession.

◦ Also Justified on the grounds of

Public Policy and Dignity of
Profession in Indian Council of Legal Aid
and Advice v. BCI

◦ self advertising tends to lower the

 Qualityof lawyers work is enough to get
him publicity. Commercialization might
lead to unethical practices.

 Even if advertising is allowed, albeit

regulated, it shall be impossible for the
BCI to keep tabs on all advertisements.

 People would go to the lawyer having

fanciest media coverage, and not the
competent lawyer.

 Lastly, lawyers would start “price-

cutting” and “bargain deals” to remain
competitive. Hence, this would decrease
the quality of the legal fraternity on a
 BCI should Shed the “Protectionist”
stand.
 The Concept of “Informed Choice”

◦ Competition fosters better service and

fairer prices.  The consumer always wins
when there is competition and
ADVERTISING FOSTERS COMPETITION.

◦ Informed choice is a right of a consumer.

Ban on advertising leads to depriving
consumers of valuable information about
the advocates. This results in a situation
where consumers cannot make an
informed choice from the market since
Protectionist stand -
Continued
 The observations of the Supreme Court in
Tata Press Ltd. v. Mahanagar Telephones
Ltd has recognized the importance
commercial speech and the right to
advertise - not only to the advertiser but
also the consumer. The Court observed:

◦ Advertising is considered to be the

cornerstone of our economic system.
Low prices for consumers are
dependent upon mass production, mass
production is dependent upon volume
sales, and volume sales are dependent
Is the profession a
“SERVICE?”
 The view that the legal profession is a
service has been reaffirmed by the
Judiciary in umpteen cases. It is a settled
position of law that the legal profession is
a service for the purpose of the
consumer protection act. –
K. Vishnu v. National Consumer
Disputes Redressal Commission & Anr,
P. Krishna Rao v. Mandipalli Devaiah

 The very nature of legal services has

shifted since globalization. The profession
has acquired the nature of a consultancy
business.

 Therefore, with the legal profession

getting the characteristic of a service, it
 Bangalore Water Supply and Sewerage
Board v. A. Rajappa, the Supreme Court
opined that legal profession is covered
under the definition of the term Industry
under the Industrial Disputes Act.

 WTO Sectoral List recognizes the legal

profession as a service.

 Thus, it could be concluded that legal

services are becoming subject of trade
related laws and hence, marketing
should be given its due recognition.
Position in other Countries
 The US, for example allows for full blown
advertising, the restriction was removed in
the case of Bates v. State Bar of Arizona.

 The UK, from where this rule is borrowed,

allows for advertising of solicitors, albeit
with certain restrictions. (The Solicitors
Code of Conduct, 2007). This restriction,
however, was removed way back in 1988.

 Barristers are also allowed to engage in

advertising or promotion, which conforms to
British Codes of advertising and sales
promotion Its pretty common to see
leaflets, brochures etc.
 In Italy, The Bersani Decree of 2004
legalizes advertising. The same is
prevalent in Germany, France etc, mostly
all over Western Europe.

 Asian Countries such as Hong Kong,

Singapore and Malaysia have relaxed
their regulations on legal advertising in
the wake of globalization. Malaysia has
ratified legal advertising by means of
Malaysia Legal Profession (Publicity)
Rule, 2001.
Regulated Advertising
 Advertising, if allowed, should be
regulated. It cannot be unfettered, lest it
will work to the disadvantage of the
consumer. This kind of a restriction is a
reasonable one and falls under Article
19(6) of The Constitution of India.

 w.r.tthe changing demands, the BCI has

made an amendment in Rule 36 which
allows for lawyers to put their information
on websites; in a prescribed format by
the BCI. Contravention leads to a
disciplinary action.

 However, why only websites? Why not

THANK YOU