The Punjab and Haryana Bar Council has asked lawyers to not use social media for advertisements to solicit work, as the act would amount to misconduct.
The Chairman of the Council stated that such action was taken after complaints were received against advocates who had been making videos and uploading them on facebook and whatsapp groups, getting their names published in newspapers with reference to conduct of cases, thereby resorting to unethical ways to solicit work.
According to the Bar Council’s Chairman Karanjit Singh, the mandate of Rule 36 prohibits an advocate from soliciting work or advertising, directly or indirectly, by any means of circular, advertise, touts, communications, etc. There council therefore considered the situation and decided unanimously that resorting to advertisements through social media in violation of Rule 36 framed by the Bar Council of India would be considered as misconduct under Section 35 of the Advocates Act of 1961.
The Bar Council of Delhi (BCD) had also taken suo-moto action against several advocates and NGOs, in October 2019for allegedly soliciting professional work through advertisements on social media. The Council had stated that issuance of such advertisement is not permissible under the Advocate Act, and had also issued notices to these lawyers for misconduct under Section 35 of the Advocate Act.
Under Clause 36, Section IV, Chapter II of the Bar Council of India rules:
“an advocate shall not solicit work or advertise either directly or indirectly, whether by circular, advertisement, touts, personal communication interview not warranted by personal relation, furnishing or inspiring newspaper comments or producing his photograph to be published in connection with cases in which he has been engaged or concerned.”
His signboard or nameplates should be reasonable in size. The signboard or nameplates or stationery should not indicate that he is or has been associates with any person or organisation or any particular case or matter or that he specialise in any particular type or that he has been a judge or an Advocate General.
Provided that this rule will not stand in any way of advocate furnishing websites information as prescribed in the schedule under information to and as approved by the Bar Council of India. “Any additional input in the particular than approved by the Bar Council of India will be deemed to the violation of rule 36 and such advocates are label to be proceeded with misconduct under sec 35 of Advocate Act,” it further read .
There are certain precedents where Courts have given their observations on the issue of advertisements. The constitutional validity of Rule 36 that prohibits advertising by people from the legal profession has often been questioned before courts. The Courts have also expressed their opinions regarding what constitutes advertisements in legal profession, etc.
In the case of Bar Council of Maharashtra Vs M.V. Dadholkar, Justice Krishna Iyer had, stated that “the canon of ethics and propriety for the legal profession totally taboo conduct by way of soliciting, advertising, scrambling and other obnoxious practices, subtle or clumsiness, for the betterment of the legal business. The law is not a trade, briefs no merchandise and to the heaven of commercial competition or procurement should not vulgarise the legal profession.”
The Allahabad High Court in Re: (Thirteen) Advocates Vs Unknown AIR 1934, had held that publishing articles in newspapers with the advocate describing himself as an advocate practicing in Courts is a cheap way of endorsing one’s services.
The Madras High Court in C.D. Sekkizhar Vs Secretary, Bar Council, Madras had observed that “Advertisement in any form by a member of the legal profession is rightly regarded as a kind of misconduct from the point of view of professional ethics. On that matter the profession cannot be judged in the same way as the trade or the rest of the public”
In the case of Tata Yellow Pages Vs MTNL the Supreme Court was of the opinion that the freedom of speech and expression extends to commercial speech, i.e. advertising. The commercial speeches are therefore protected under 19(1)(a) of the Constitution. Also, in the case of Dharamvir Singh Vs Vinod Majahan the Punjab and Haryana Court was held by the Court that since provided legal services is a form of business proposition, advertising the same will come within the definition of commercial speech.
In RN Sharma Advocate Vs State of Haryana in 2003 the Punjab and Haryana High Court had held that an advocate is the officer of the court and legal profession is not a trade or business, it’s a noble profession and advocates have to strive to secure justice for their clients within legally permissible limits.
In SK Naicker Vs Authorised Officer, the Madras High Court had observed that writing articles for publication in newspapers under an advocate’s signature will amount to unauthorised legal advertising.
Both United States and United Kingdom have eased in their position regarding restriction and prohibition against advertising by legal professionals.
Position in the United States:
In Unites States, previously the position was similar to that of India. According to the Professional Ethics of American Bar Association (ABA) soliciting professional employment by advertisements was unprofessional.
However, then came the judgement of of US Supreme Court in Bates v. State of Arizona (1977) in which held that advertising rights of the lawyer were constitutionally protected under the First Amendment.
In this case, the position of law placing strict restriction and prohibition advertising of legal services constitutionally challenged. The case involved two legal practitioners who opened a law firm, to provide legal services could not afford legal services, and did not qualify for legal aid as well. According to them, doing that was possible only through advertisement.
The Court held that a blanket prohibition on advertisement of legal services was unconstitutional, and also violative of the First Amendment, that guarantees freedom of speech and expression.
In 1969, the American Bas Association had created the Model Code of Professional Responsibility, and replaced the code with Model Rules of Professional Conduct in 1983.
According to Section 7 that talked about lawyers advertising and solicitation advertisements must be truthful and not deceptive or misleading. Therefore, a lawyer may advertise through written, recorded or electronic communication, including public media, subject to certain restrictions.
The lawyer must not make any false or misleading communication about the lawyer or his services. The lawyer must not solicit professional employment in person, through live telephone or electronic contract when a significant motive is the lawyer’s pecuniary gain.
Therefore US have a liberal approach and not a very strict prohibitory approach when it comes to rights of advocates to advertise.
Position in United Kingdom:
In UK, the position regarding advertising by legal professionals being unprofessional has changed gradually.
In UK, the ban was lifted by the coming of the Monopolies and Mergers Commission in 1970 and the Office of Fair Trading in 1986, which focused on the advantages of advertising by legal professionals.
The Solicitors Publicity Code, 1990 laid down the laws related to legal advertising. According to the code, publicity by a solicitor must not to be misleading and it should provide sufficient information to ensure that the clients can make informed decision.
The Code also states that the advertisement may contain the fees of the lawyer, the fees not being fixed at extremely low levels, and accompanied by statement that additional charges might be applicable, upon the fees.
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