Corrupting nobility lawyers’ right to advertise

The ban on lawyers to advertise for their services has been subject matter of extensive discussion. The debate has been further spruced up recently with the entire issue of GATS coming into force and the possibility of foreign lawyers setting afoot the Indian soil. Lawyers in India are governed by bar council codes and legislation such as the Advocates Act 1961. Under the current law in force the Bar Council of India is to lay down standards of professional conduct and etiquette under Section 7(b) of the Advocates Act 1961. It is in furtherance of this provision that the Bar Council Code of Conduct bars advocates from commercial advertising.

The weightiest rationale given for this legislative step is on account of the nature of the legal profession. Lawyers are officers of the court, entrusted with the noble duty of assisting courts of law to meet the ends of justice. Indeed, this is the premier and foremost responsibility of a lawyer. However trouble arises when it is argued that a right to advertise might in some way corrupt the sanctity and nobility of the legal profession. Advertising is essentially a technique of providing an array of choices to consumers, and thereby assisting them in making the right economic choices. Simply stated, advertising is merely an information providing tool essential in enjoyment of the “right to choose”.  Cliché, but true, in the age of globalization and liberalization the consumer is faced with innumerable choices while purchasing any good. A more recent facet of the growing economies, market trends and the shrinking global village is the rise in number of choices and variety available in availing services.  So much so that with the commencement of the WTO regime, specific and distinct rules under the General Agreement on Trade in Services have been formulated to control and regulate the movement of services, just as had been done for goods. Therefore with the coming of this age, and international trade in services booming and still on the rise, it is only a just presumption that the choice, competition, categories, varieties and complexities in services are bound to increase. While providers of all goods and services exercise the right to advertise and disseminate information and thereby further their businesses and serve a social cause, it is rather unjustified to leave out the lawyers from exercising this basic business right, more so when seen as an exercise of social responsibility.

This position of denial is unique to India as against most major jurisdictions of the world. In the United States, the American Bar Association is the primary  body  which formulates the professional ethics and codes of conduct for American lawyers. In addition every state has its own code of conduct. Notably, almost all American states permit and guarantee to the lawyer a right to advertise, subject of course to certain fundamental restrictions. Such a right is given under the ambit of Commercial Speech which is a key constituent of  the First Amendment Freedoms. Bates v. State Bar of Arizona, marks the origin of this right in America. Justice Blackmun viewed lawyer advertising as a way for lawyers to provide information to potential clients and therefore ruled that the interests of the client and lawyer are essentially compatible rather than competing since potential clients need the very information lawyers want to put into their advertising. The court therefore permitted the plaintiff lawyer to list the fees charged for routine legal services in a pamphlet. More importantly, the Court made it clear that the full protection of the First Amendment was not given to lawyer advertising and advertising which was false, deceptive, or misleading or where the “form or method of advertising has in fact been deceptive” could be prohibited. In a decision of 1980 the court clarified further by laying down a four-prong test to decide the validity and justifiability of state made restriction. This test said

Ä   In order to enjoy First Amendment protection, the commercial speech must not concern unlawful activity and must not be misleading.

Ä   There must be a substantial state interest in the regulation.

Ä   The regulation must directly advance the asserted interest.

Ä   The Court will ask whether the regulation is more extensive than necessary.

Applying this test to the Indian Scenario, the complete ban on the Indian lawyers to advertise clearly comes across as a step more extensive than necessary.

The American Supreme Court has further extended this right in Texas Against Censorship, Inc. v. State Bar of Texas and protected commercial speech entwined with non-commercial speech. Here a lawyer had written a comment in a newspaper discussing the current system of electing state judges and proposed a new rule regarding such elections. The court found that this advertisement did not propose a commercial transaction. In this document, he also provided his contact details and later even admitted that with this he hoped to generate some business. The Court overruled the Chief Disciplinary Counsel’s (for the Texas State Bar) finding and decided in favour of lawyer advertising. The US court is clearly against paternalistic regulations against lawyers’ right to advertise. The essence of this stand lies in the view that “speech does not lose that (First Amendment) protection because it is paid for, because it solicits money or because it proceeds from a profit motive. “ In person solicitation was also subject to scrutiny in Shapero v. Kentucky Bar Association. The Court restated its position that prohibition of commercial speech may be restricted only where it serves a substantial government interest. Since the letters in the instant case were of no more influence than a simple print advertisement, the Court said there was a much lower risk of undue influence. Supreme Court held that a state may not prohibit lawyers from soliciting  clients for pecuniary  gain   by sending   truthful   and   non – deceptive letters to people known to face particular legal problems. Another illustration of this expansive reading is In re Primus.

US Courts also do not give lawyers an unregulated or an uncontrolled right to advertise. The right is subject to limitations, primarily on account of advertising, which is fraudulent, false, misleading or likely to exert undue influence. Additionally, advertising has also been forbidden in special situations like in-person solicitation to a minor or an accident victim incapable of taking a researched decision. An illustration of this is Florida Bar v. Went For It, Inc where the court relying on the central Hudson test opined that no in-person solicitation could be carried out to an accident victim or his family for 30 days since it might result in undue influence.

In the UK as well, the Bar Council in paragraph 710.1 of the Code of Conduct permits a barrister to advertise or promote his practice provided he conforms to the British Codes of Advertising and Sales Promotion. Such advertising may include photographs or other illustrations of the barrister, statements of rates and methods of charging, statements about the nature and extent of the barrister’s services, information about any case in which the barrister has appeared etc. Broadly, the only limitation is on advertising which is inaccurate, misleading, likely to diminish public confidence in the legal profession or the administration of justice, makes direct comparisons in terms of quality with or criticisms of other identifiable persons or includes statements about the barrister’s success rate. The Canadian Nova Scotia Barrister’s Society (Bar Council) also lays down in its handbook for legal ethics and professional conduct, certain rules to be followed while seeking business. There again the limitation is with respect to maintenance of integrity of the profession and complying with the other rules and regulations of the society. Similarly other jurisdictions like New Zealand also give lawyers the right to advertise. The core argument and logic behind this right is accessibility of appropriate legal services to the public at large.

Those lobbying against this right essentially maintain the argument that advertising might corrupt the profession due to over commercialization and by adding material dimensions to an otherwise noble profession. Countering this an analogy can be drawn with the medical profession, also noble, but the medical council of India permits practitioners to advertise subject to reasonable restriction. This guarantee is also protected under Article 19(1)(a) of the Constitution of India providing for freedom of speech and expression. The Indian Apex Court earlier denied protection to commercial speech under Article 19(1)(a) considering it a part of business or trade and not in propagation of any idea. This view later changed with Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd, which  held  that  tata  press  ltd.   was  protected under article 19 and could publish the addresses and telephone numbers of businessmen and producers along with the details of their products. With this case commercial speech has been given constitutional protection. Leaving select few services out of this right finds no logic at all.

In fact in the process of lawyer bidding carried out by majority clients before hiring legal services, lawyers and law firms are asked to present their credentials and details on past performances. This is a common practice today. Permitting lawyers to advertise their services will be no more than legalizing this process and thereby simplifying the justice system. Indian ground realities at the district courts and other law offices should also act as eye openers. A common man entering the precincts of such an office would find himself clueless about which lawyer to pick, what legal recourse to take, and could possibly be cheated by a fake dressed in black and white. A regulated mechanism of information dissemination would prove extremely useful even in the Indian scenario. Just as in other jurisdictions the Indian bar council should also create a framework of protection within which advertising which is comparative, creates unjustified expectations, misleading, derogatory, misrepresentation, affects client’s relationship with another lawyer, exploits vulnerable persons, violates any other provisions of the code is banned absolutely. Naturally such a mechanism would require an efficient and widespread enforcement body, which would face a demanding agenda. However when weighing the number of misdirected and misinformed clients today and the chances of fraudulent advertising in a stringent system, it seems fair to give way to a modified system.  Additionally the inequity in the entire system should be addressed not only to serve the private interests of lawyers but to attain the ideal of easy and adequate access to justice.

A regulated mechanism of information dissemination would prove extremely useful even in the Indian scenario. Just as in other jurisdictions the Indian bar council should also create a framework of protection within which advertising which is comparative, creates

 In the UK as well, the Bar Council in paragraph 710.1 of the Code of Conduct permits a barrister to advertise or promote his practice provided he conforms to the British Codes of Advertising and Sales Promotion.

An analogy can be drawn with the medical profession, also noble, but the medical council of India permits practitioners to advertise subject to reasonable restriction.

Almost all American states permit and guarantee to the lawyer a right to advertise, subject of course to certain fundamental restrictions.

 Advertising is essentially a technique of providing an array of choices to consumers, and thereby assisting them in making the right economic choices.

 

-LAWZ BUREAU

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