Hit by job cuts during COVID-19 and constricted by an outdated law on legal advertising, young lawyers struggle to become self-reliant

While the law fraternity had been hoping for a progressive easing of the restrictions, the contrasting opinion pronounced by the court has created a sense of dismay and shock in the legal society.

Anushka Dhawan and Dhruva Sareen June 12, 2020 17:51:18 IST
Hit by job cuts during COVID-19 and constricted by an outdated law on legal advertising, young lawyers struggle to become self-reliant

In recent times, media-mentions of lawyers have usually been spurred by controversial judicial pronouncements, untimely strikes, dilapidated court infrastructures, pendency of cases, and fresh addition to the list, vandalism.

However, not many realise that, at this pivotal juncture of time, there exists another underlying concern that the legal fraternity is continuously struggling with. The unruly impression of the legal fraternity continues unabated because of an outdated law that still prohibits advertising or self-promotional activities by lawyers.

This law, in the form of a binding directive, under Rule 36, Section IV, Part VI of the Bar Council of India Rules prohibits lawyers from ‘the soliciting of work or advertising, either directly or indirectly, whether by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned.

It is important to note that BCI is the designated authority under Advocates Act, 1961 with the power to make delegated legislations (subsidiary legislations intended to implement the parent law, which, in this case is the Advocates Act, 1961). The proponents of this blanket ban mostly find themselves justifying this oddity under the garb of public policy, public utility, social justice and nobility of the profession along with the belief that the legal ‘industry’ will become fiercely competitive and money-oriented if advocates are allowed to advertise and solicit work.

This problematic rule has directed our attention towards some graver anomalies in the roots of the system.

That being said, due credit should be bestowed upon the Indian justice system for acknowledging the nobility aspect of the legal profession. Even the Supreme Court has, time and again, sanctified the yardsticks of nobility and integrity as the pillars of the profession.

Hit by job cuts during COVID19 and constricted by an outdated law on legal advertising young lawyers struggle to become selfreliant

Supreme Court of India. PTI

This rigidity in thought arises out of the judicial intention of avoiding any exploitative actions of lawyers from manifesting. On those lines, Justice Krishna Iyer in Bar Council of Maharashtra v. M. V. Dabholkar has also opined that “Law is not a trade, briefs no merchandise; and to the heaven of commercial competition or procurement, should not vulgarize the legal profession”.

The judiciary, since then, has emphasised on the need for maintaining the perception of a scrupulous and honourable profession due to the fiduciary role that lawyers fulfil for the public in the courts of law. But, that is just the one visible side of the coin.

On the other side, which is far more unsettled and vague, the courts’ hypocritical labelling of the legal profession as a ‘service’ only hints at its evolution into a more commercial space (while still holding onto the outdated ideas against advertising) has left the judicial march of law into a lurch.

As per the common law principles, the legal system is expected to adapt to the changing needs of society. Thus, in 2008, on the petitioning of this very matter by an advocate, the Supreme Court, in V.B. Joshi v Union of India, relaxed the absolute prohibition on legal advertising.

However, the Supreme Court was rather hesitant in revoking the prohibition (as was petitioned in the case) and instead diluted the provision to the allow the display of the following information on online and offline platforms:

(1) name of the lawyer; and (2) address, telephone numbers and email id; and  (3) (a) enrollment number, (b) date of enrollment, (c) name of State Bar Council where originally enrolled, (d) name of the State Bar Council on whose roll name stands currently and (e) name of the Bar Association of which the advocate is a member; and (4) professional qualifications and academic qualifications; and (5) areas of practice.

Although the VB Joshi Case did relax the norms of legal advertising, it was too late and too little. In fact, Allahabad High Court’s Lucknow bench has recently issued a contempt order on online portals like Justdial, Myadvo, Lawrato, Legalserviceindia among others which supposedly carry out advertising in the name of ‘enlisting’ in light of strict instructions from the high court to refrain from such activities.

While the law fraternity had been hoping for a progressive easing of the restrictions, the contrasting opinion pronounced by the court has created a sense of dismay and shock in the legal society.

On comparing ourselves with the other common law pioneers, we find that although the US and the UK did have an absolute prohibition on legal advertising till 1977 and 1990 respectively, both the countries revamped their internal regulations to adapt to the changing norms of globalisation and liberalisation.

At a precarious position in the said decades, the Indian system could never keep in-step with the trailblazers of the time. In this unprecedented era of COVID-19, though the lawyers have been freed from their compulsory black robes, what is needed is the liberation from this regressive rule against legal advertising that is impeding their potential to grow.

In response to the current pandemic, which has already stirred havoc into the lives of advocates, various State Bar Councils (SBC) have initiated COVID-19 relief grant schemes on a first-come application basis, the grant criterion of which varies for each state institution. Some SBCs like Karnataka has released the list of beneficiaries but without the details of the relief amount granted, while others such as Rajasthan and Delhi have closed their application window without any intimation on future courses of action on the website.

Unless a person is tangibly benefitting from such schemes, there is really no direct way of knowing the procedure and result, as is. This highlights two major issues in the current system. First, the fact that there is an inherent lack of transparency and absence of uniformity in the regulatory mechanism for advocates; and second, that the act of granting a measly Rs 5,000 to select advocates (the criterion and determination of which is also unknown) in hopes that this might help those individuals sail through a pandemic that has already put their lives at a standstill for over three months now.

The problem with such half-hearted efforts, although with probably benevolent intentions, is that it does not help the advocates become ‘aatmanirbhar’ in a sustainable fashion, for such grants are transient -- for bureaucratic reasons or otherwise.

The Bar Council(s) are fundamentally created to balance the interests between the public and lawyers, and must also ‘promote and support law reform(s)’. The conjunctive reading of these principles along with a proposal to lift the aforementioned prohibition would, in fact, help the BCI’s prerogative to facilitate pro-bono counsel, better services offered by lawyers due to increase in competition, and more lawyers for the public to choose from.

The courts have acknowledged in the past that circumvention of Rule 36 is anyway a matter of everyday practice. Thus, such a proposition would effectively legalise the presently circumventing practices already subsisting vide visiting cards, directory listings, seminars and felicitation ceremonies, hosting of moots, websites which establish credibility through internationally ‘sourced’ rankings and issuance of circular letters or election manifestos with name, address and profession printed on it.

Therefore, the authors strongly recommend letting go of this arbitrary prohibition, where advertising would prove to be beneficial to garner opportunities and connecting to the public at large. Every other industry is allowed to foster on its own -- with appropriate checks on competition to control undue anti-competitive practices.

The Supreme Court has also unequivocally asserted that ‘Advertising is considered to be the cornerstone of our economic system’. Thus, it is only fair to encourage the legal industry to head in the same direction as the other sectors. While we recommend lifting the prohibition, we also believe that the system needs a watchdog authority to regulate the advertisements being rolled out.

Such authority, semi-autonomous in nature, would be instrumental in protecting the interest of the public at large which may be misled by false claims. This authority shall also introduce appropriate penal consequences to avoid fraudulent advertising and puffery, which would further help in reducing the occurrence of frivolous litigation.

Evidently, the ban on advertising is detrimental to the legal industry in more than one way. Recently, the Indian legal industry has been moving away from retainership arrangements towards a more gig-based economy thereby implying the evolution of its socio-economic skeleton for short-term objectives -- a transition that would enable more immediate opportunities especially amongst young lawyers, and simultaneously encourage the industry to digitise.

The ‘aatmanirbhar-ta’ would definitely provide the younger lawyers, the ones truly in troubled waters, the appropriate platform to advertise directly without incurring substantial costs. While the bigger law practices do circumvent the prevailing prohibition by putting appropriate disclaimers, the small individual lawyers still remain out of touch and association with the increasingly globalized international markets and their legal demands.

The authors acknowledge that there are certain theoretical shortcomings to their proposal. It can be argued that, as the dog-eat-dog dilemma intensifies, unscrupulous individuals may resort to the creation of attractive-but-misleading advertisements.

This may adversely affect the illiterate and gullible public. There are also naysayers’ accounts who believe that, if given the opportunity, the lawyers would focus more on marketing than providing quality services. It is also a natural concern that larger firms would have more resources to publicise their services, and older firms will have more experience and credibility to advertise.

While acknowledging the existence of such issues, we sincerely believe that when the benefits of the proposal are put on a beam balance alongside the shortcomings, the benefits will not only be heavier but also more sustainable. As for the shortcomings, which will anyway be gradually obliterated with time to keep the system evolving, we are of the firm belief that the proposed watchdog authority will ensure all the fallacies are appropriately addressed.

However, it is important to also recognise that multiple platforms like WhatsApp, Instagram, Telegram etc. will be ‘legally’ open for lawyers to advertise on, meaning they will be accessible to the public at large. This implies that for someone who cannot afford a blingy website or SEO management tools can still reap benefits in terms of personal attendance, price and emotional connect making it an equally viable system for a lawyer who wants to make his/her presence felt. This would open up the otherwise cocooned-industry to be more readily accessible.

The legal industry is finding itself festered with diverse problems. However, all of them seem to have the same core solution. From the huge layoffs in the legal establishments because of  COVID-19 to lack of practical exposure and apprenticeship opportunities, the only core solution that remains is to make the lawyers aatmanirbhar by allowing them to make an independent name for themselves. It’s time that our system opened its doors for the legal professionals for truly realising their optimum potential.

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