Prohibition of Advertisement in the Legal Services Sector

Advertisement in the legal services sector unlike many other sectors like retail, entertainment, aviation, telecom and apparels among others is banned in India. M.L.Sarin and Harpreet Giani talk about the impact that this ban will have on Indian legal services.

In India, the cumulative effect of the Advocates Act, the Rules of the Bar Council of India and other professional bodies is that lawyers are prohibited to advertise their services. Lawyers may not solicit clients and cannot do anything that might influence the decision of a potential litigant from engaging one or the other lawyer. Even if a lawyer argues a case brilliantly, the newspapers may report the issue but the publication of the lawyer's name in the report is frowned upon. Consequently, a person intending to buy an automobile has more information and research resources at his disposal than someone intending to entrust critical litigation to an advocate. A litigant exposed to the vagaries of the judicial system in India for the first time has no way to draw up a short list of practitioners specializing in that particular branch of law; there is no single place or agency which can possibly supply a list of "good" lawyers to the lay person.

The majority of clients are therefore at the mercy of "friend of a friend" for their legal requirements. The legal profession works more by oral referrals than by any standardized criterion for grading lawyers. Litigants forced to enter the court system for the first time seldom have any idea about the usual fees for similar cases either. Unlike many other legal systems, the Indian lawyers and law firms are disallowed from many measures that would greatly benefit the public at large. For example, a website by a family law specialist or a rent law barrister where essays or monographs about the law are published, or where the public at large can get relevant information would be classified simply as an advertisement and is thus proscribed.

The prohibition on advertising or information dissemination is usually attributed to and rationalized by the age-old homily about the law being a "noble profession". All attempts at a dialogue so far have been snubbed simply by hiding behind the excuse that members of this lofty profession ought not to degrade themselves by hawking their wares. However in the age of information, these excuses can rarely be sustained. The consumer of legal services, like the consumer of any other services (including medical services from a doctor etc.) is entitled to look for and obtain the best value for his money. The litigant must be able to find an advocate within his paying capacity and whom he can trust. There has to be some mechanism from where an impartial evaluation of the lawyer, his track record, and competence in various disciplines can be obtained.

One of the possible methods can be to permit limited advertising, possibly through "infortising". The Bar Council can possibly lay down standards within which the lawyers may be allowed to advertise or publish information, which, apart from attracting new business for the lawyer, provides an opportunity for the practitioners to share information or legal analysis with prospective clients. Lawyers who have written articles, treatises or monographs on some aspects of the law or on specific judicial pronouncements already enjoy the right to have them published in the journal sections of law reports. Unfortunately, these scholarly pieces are rarely available to the public at large since these reports do not enjoy wide circulation amongst non-lawyers. Allowing lawyers to publish these articles and analyses in their in-house brochures, newsletters or on websites would be a healthy step.

As long as the "advertising" is not just gratuitous; and promotes legal awareness and gives the litigants an opportunity to evaluate the calibre of their potential counsel, advertising per se ought not to be barred. In many countries now, the legal profession itself provides a way for litigants to find the lawyer best suited to their needs. The Bar Council of England and Wales introduced its own benchmark for lawyers way back in 1999. Called the Barmark, it indicates that chambers comply with the Bar Council's Practice Management Standards and Guidelines. This kitemark, which is regularly reviewed, sets standards of best practice for administering chambers.

Barristers' chambers regularly update their websites on the internet. These websites usually carry detailed curriculum vitae of the practicing barristers, their achievements etc. These websites also routinely carry information on the practice areas of interest of each individual as well as links and references to judgments in cases where that lawyer had appeared. The websites also carry sufficient contact details for the chambers. Since every chamber enjoys the same right to put up a website, this privilege does not tilt the playing field. On the contrary, it is a very valuable resource for the lay people. It is now high time that the Bar Council and each advocate in India realize that the legal system is not just about the lawyers. The Bar Council must not confine its activities to the welfare of the legal community. The Bar has a greater role to play, as the first line of contact between the lay public and the lawyers.

Many of the malpractices that lawyers commit for obtaining work, which are commonly acknowledged in private, but seldom publicly admitted, can be better addressed if "infortising" is accepted into our system. The legal profession is undoubtedly a noble profession. But at the same time, it is catering to the needs of the public at large. It must therefore open itself up to the scrutiny of the public and appear reasonable and accountable. This is even more relevant today as the legal services sector in India is likely to be thrown open to 'foreign lawyers'.