In India, Advocates are prohibited from advertising their professional services under the rules prescribed by the Bar Council of India. This law derived from the old Victorian notions of British Common law, which did not deem the profession of law not as a strict trade, and perceived lawyers as quintessential officers of the court. Its origin can also be found in the Canons of American Jurisprudence. As per Ordinance 27 of Professional Ethics of the American Bar Association, it would be ‘unprofessional’ to solicit the services of an advocate. This perception of legal practice as a ‘noble profession’, rather than services has led to the development of such a restraint. This law imposing prohibition on advertising seeks to justify itself under the guise of public policy and ‘dignity of profession’. It is usually defended on the ground that allowing advocates to advertise would not only pave way to potentially misleading the public, but would also ‘degrade the dignity’ of the honourable profession. However, with the passage of time this view has largely been criticized by authorities and practitioners alike on the ground that such archaic notions and prohibitions on advertising limited the ability of people to procure information regarding legal services offered by lawyers and led to competitions constraints in the legal field such as creation of entry barriers for novice lawyers and concentration of market power with a few lawyers of ‘high repute’ who exploit this power to charge exorbitant fee from clients. Moreover, the fact that legal profession in no more just a ‘noble profession’ and is rapidly moving towards commercialization all over the world has also been recognized by regulators of legal profession, and most of them have done away with the practice of prohibiting advocates from advertising. In the words of Thomas D. Morgan, “Law has ceased being a profession and has become a business”.
However, the law in India is yet to take cognizance of these changed perceptions and developments, and there is almost a complete disallowance on advertising for legal practitioners.
Status of Legal Advertising in India: the Law and the Regulator
The professional conduct and standards for advocates in India is governed by the Advocates Act, 1961. Section 4 of the Act provides for the establishment of a Central Bar Council i.e. the BCI and respective State Bar Councils, which are equipped with the power to make rules regarding professional legal behaviour. Section 49(1) of the Act has greatly empowered the Bar Councils to formulate rules pertaining to ‘the standard of professional conduct’ as well as the ‘conditions of practice’ for lawyers.
Rule 36 of the BCI Rules, notified in the Gazette of India on 6th of September 1975 reads as follows:
“Rule 36: An advocate shall not solicit work or advertise, either directly or indirectly, whether by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing or inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned. His sign-board or name-plate should be of a reasonable size. The sign-board or name-plate or stationery should not indicate that he is or has been President or Member of a Bar Council or of any Association or that he has been associated with any person or organisation or with any particular cause or matter or that he specialises in any particular type of worker or that he has been a Judge or an Advocate General.”
On a bare perusal of the above rule, it may be observed as per Rule 36, there is a complete bar on advocates from advertising their services. The arbitrary and restrictive nature of Rule 36 was challenged in a plethora of cases resulting in conflicting judgments on the issue. In 1967, the Madras High Court in C.D. Sekkizhar v. Secretary Bar Council observed that advertisements by advocates were banned to prevent feelings of jealousy and was unbecoming of the noble profession. Further, the Apex Court in Bar Council of Maharashtra v M. V. Dabholkar, opined that “commercial competition and procurement could vulgarise the legal profession”.
Conversely, in 1985 the Punjab & Haryana High Court in Dharam Vir Singh v Vinod Mahajan, held that providing legal services would be a business proposition, and advertising the same would come within the purview of ‘commercial speech’ as protected by Article 19(1)(a) of the Indian Constitution. In view of this, the Apex Court in its landmark judgment in Tata Yellow Pages v MTNL, held that commercial speech was a fundamental right, to be necessarily protected by Article 19(1)(a) of the Indian Constitution. However, since the matter was not heard by a full bench, the judgment did not have the effect of declaring Rule 36 of the BCI Rules unconstitutional.
Hence, all such attempts to challenge the law were to no avail till 2008. Rule 36 was finally amended by a Resolution being Resolution No. 50/2008 passed by the BCI in pursuance of the decision of a three-Judge Bench of the Supreme Court in the case of V.B. Joshi v. Union of India. By way of the amendment, advocates were permitted to provide details such as their names, PQE (Post Qualification Experience), areas of practice on websites in order to “publicise lawyers and reveal subtle elements of their practice.”
The proviso to Rule 36, added by the Amendment of 2008 reads:
“Rule 36: …
PROVIDED that this rule will not stand in the way of advocates furnishing website information as prescribed in the Schedule under intimation to and as approved by the Bar Council of India. Any additional other input in the particulars than approved by the Bar Council of India will be deemed to be violation of Rule 36 and such advocates are liable to be proceeded with misconduct under Section 35 of the Advocates Act, 1961″.
Thus, even though a gateway was introduced in the form of the proviso to Rule 36, however, such provision was only limited to publishing certain details on websites, and advertising of one’s legal services still remains prohibited under the law.
Advertising Restrictions: Impact on Competition in the Legal Profession
Within the last decade, antitrust officials around the world have launched inquiries into the regulation of the legal profession. Such efforts have taken place in Asia, Australia, Europe, North America, and elsewhere. The European antitrust officials have concluded that some lawyer regulators are affected by the “weight of tradition,” “fail to see how things can be done differently,” and do not regulate in the public interest. .
In a report of Monopolies and Mergers Commission in U.K., it was stated that restrictions on advertisement by professionals reduce the stimulus to efficiency, cost saving, innovation, new entry to professions and competition within the professions. Thus, new entrants in the legal field seeking to establish themselves and obtain clients are deprived of doing so through advertising, which is one of the simplest and easiest methods to enter into a market. Further, restrictions on advertising promulgate less open methods of self-publicity such as interviews of lawyers on national newspapers and television, flex boards with names and photographs of lawyers, publication by the partners and the associates of law firms and newspaper mentioning the names of the lawyers and law firms representing clients in the high-profile cases. It is not prudent on the part of the law makers to formulate a rule forbidding advertisement of legal services without articulately demarcating as to what constitutes advertisement and what does not. Such passive methods of self-promotion may have an adverse effect on competition in the market.
In 1985, the OECD’s Committee on Competition Law and Policy presented a Report titled Competition Policy and the Professions. This report concluded that in the majority of countries professions were not subject to competition rules and, in consequence, recommended to the States to eliminate existing restrictions regarding access, price, advertising and association structure, with the aim that “exceptions of competition laws not go beyond what is necessary and only serve to reach public interest aims.” With regard to advertising, it suggested the adoption of measurements to assure that consumers be afforded sufficient information to choose between different professionals. It therefore called on OECD members to identify and remove those lawyer regulation restrictions that are unnecessary or disproportionate to achieve the public interest; it encouraged its members to consider the differences between informed and uninformed buyers and to focus in particular on issues related to independent regulatory authority for legal services, entry restrictions, exclusive rights, and advertising and price restrictions.
Thus, from the above observations of different regulators and competition authorities, it can be inferred that restrictions on advertising in the legal profession tend to reduce competition by limiting the ability of consumers to gain information about the services of legal practitioners, increasing the costs of gaining such information thus making it more difficult for consumers to search for the quality and prices as per their requirements.
Citing the OECD study discussed earlier, the European Commission stated that, significant body of empirical research shows the negative effects that excessive regulation may have for consumers. The Commission stated that the OECD research suggests that excessive regulation of advertising and licensing has, in certain cases, led to lower quality and higher prices in professional services markets. Conversely, the loosening of anti-competitive restrictions has had positive effects on prices and quality.
In U.S.A., Bates v. State Bar of Arizona is the case applying antitrust law to the legal profession. In this case a lawyer disciplinary rule that prohibited lawyers from advertising was struck down. It involved two legal practitioners, who opened a law firm to provide legal services to those who did not qualify for legal aid, but could not afford legal services, and the only possible way of providing these services was by means of advertisement. The U.S. Supreme Court held that a blanket prohibition on advertisement of legal services was unconstitutional, and in violation of the First Amendment, that is freedom of speech and expression. The Court had found that with respect to the legal profession, minimum fee schedules and advertising bans violated U.S. antitrust laws.
In India, opining on the prohibition on advocates from advertising, the Report of the High Level Committee on Competition Policy and Law, under the Chairmanship of S.V.S. Raghavan stated that “the legislative restrictions in terms of law and self-regulation have the combined effect of denying opportunities and growth of professional law firms, restricting their desire and ability to compete globally, preventing the country from obtaining advantage of India’s considerable expertise and precluding consumers of free and informed choice”
Changing Landscape of the Legal Profession in India
In Bar Council of Maharashtra v. M.V. Dadholkar, Justice Krishna Iyer held that “…. the canons 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.”
However, the recent trend of the courts is to justify this profession as a trade and acknowledge is evolution. With the passage of time, the judiciary has recognized the Legal profession as a ‘service’ rendered to the consumers and have held that advocates are accountable to the clients in the cases of deficiency of services. In the case of Srinath v. Union of India, the Madras High Court held that in view of Sec. 3 of Consumer Protection Act, 1986, Consumer redressal forums have jurisdiction to deal with claims against advocates. In the case of K. Vishnu v. National Consumer Disputes Redressal Commission & Anr. it was settled that the legal profession is an administration with the end goal of the Consumer Protection Act, 1986. Further, Sec. 2 (u) of the Competition Act, 2002 defines the term ‘Service’ along the lines of the Consumer Protection Act, 1986. Also the decision of the Apex Court in Bangalore Water Supply and Sewerage Board v. A. Rajappa, holds that legal profession is covered under the definition of the term Industry under the Industrial Disputes Act, 1947. Thus, legal services are becoming the subject of trade related laws in India where consumerism and market forces should be given adequate space.
Thus, legal profession in India today can no more be kept away from benefits of advertising on the archaic notions that it is not a strict trade or service but only a ‘noble profession’.
The Raghavan Committee emphasised that India’s competitiveness lies in services rather than in the manufacture sector. The quality of services rendered by Indians in various professional fields is now known world over and hence there should not be any restrictions on their movement or advertising options.
The Committee Report made the following Suggestions on the Services aspect:
(1) A profession enjoys monopoly rights of practice in its designated field and the body administering the profession enjoys considerable autonomy in its administration. These monopoly rights and autonomy should be used for regulating the quality of the profession, the standards of entry and discipline and accepted norms of performance. They should not be used to limit competition.
(2) Professionals should not be denied normal opportunities of association and promotion and opportunities for growth and development. There should be no attempt to prevent the use of firm names on narrow technical considerations and to act in a manner which insulates them not only from global competition but also from the opportunity for global contact and interaction.
(3) Professional bodies should not utilise their rights of autonomy to counter the normal challenges of global integration. It is illogical to have a totally protected profession in an environment of global industrial integration.
Position in Different Jurisdictions:
The sources of jurisprudence on which these archaic notions regarding the legal profession are based such as British Common Law, have done away with the practice of banning advocates from advertising.
As mentioned previously, the position in USA was similar to the position in India till 1977. Ordinance 27 of the Professional Ethics of American Bar Association stated that it was unprofessional to solicit professional employment by advertisements. However, it has now become a constitutionally protected right following the decision of the US Supreme Court in Bates v. State Bar of Arizona.
Advertising by legal professionals in USA is currently governed by the Model Rules of Professional Conduct, 1983. As per the Rules, a lawyer may advertise his services through written, recorded or electronic communication, including public media, subject to the following conditions:
U.K. had prohibited the advertisement of legal services, owing to the old Victorian notions. However, the Monopolies and Mergers Commission in 1970 and the Office of Fair Trading in 1986, came up with reviews which highlighted the benefits of allowing advertisement of the legal services. This changed the situation in UK upside down and the age-old Victorian notions were done away with.
The advertisement of the legal services in U.K. is governed by a law contained under the Solicitor’s Publicity Code, 1990, which has been periodically updated. Under the Code, the advertisement of the legal services should not be misleading, but should provide sufficient information so as to enable the clients to make an informed choice, thereby, addressing the right to information aspect of the clients. The Code further provides that, the advertisement may contain the fees of the lawyer, provided that the fees is not pitched at a dangerously low levels, and that it should be accompanied by a statement that additional charges might be applicable, upon the fees.
Historically, the legal professions in European countries frowned upon or prohibited advertising by lawyers. However, the adoption of the Code of Conduct for Lawyers in the European Union (CCBE Code), which permits lawyer advertising, along with the Lawyers’ Services Directive, the Diploma Directive, and decisions of the European Court of Justice, led many Member States of the European Union (EU) to review the rules of practice and the codes of conduct for their legal professions. As a result, many EU Member States abandoned their traditional rules prohibiting lawyer advertising in favor of permitting some form of advertising by lawyers.
Section 2.6 of the Council of Bars and Law Societies of Europe (CCBE) Code of 2006 provides that:
“2.6.1. A lawyer is entitled to inform the public about his or her services provided that the information is accurate and not misleading, and respectful of the obligation of confidentiality and other core values of the profession.
2.6.2. Personal publicity by a lawyer in any form of media such as by press, radio, television, by electronic commercial communications or otherwise is permitted to the extent it complies with the requirements of 2.6.1.”
Under the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015:
“A solicitor or principal of a law practice must ensure that any advertising, marketing, or promotion in connection with the solicitor or law practice is not: false; misleading or deceptive or likely to mislead or deceive; offensive; or prohibited by law.”
Analysis and Way Forward: How lifting the ban would facilitate Competition
From a general point of view rules are necessary in the specific context of each profession, in particular those relating to the organisation, qualifications, professional ethics, supervision, liability, impartiality and competence of the members of the profession or designed to prevent conflicts of interest and misleading advertising, provided that they give end users the assurance that they are provided with the necessary guarantees in relation to integrity and experience, and do not constitute restrictions on competition.
Firstly, regulated permission to advertise the legal services shall result in greater opportunities for the lawyers who are just entering the profession, as law practice is mostly based on factors such as reputation and a good client base, which are hard to come by for a novice lawyer except by means of advertisement. The established firms and lawyers tend to obscure the work of lesser-known firms and new lawyers, thus resulting in concentration of market power with few established players and creating barriers to entry. Permitting lawyers to advertise their services shall attract newer talent to the industry and eliminate such barriers.
Secondly, advertising will provide consumers with accurate additional information beyond that obtainable through reputation. Hence, advertising will permit consumers to make more informed decisions about when to use a lawyer and about which lawyer to use. This can be a crucial competitive tool for new firms and lawyers entering the market and for existing firms and lawyers to improve their quality of services, thus benefitting the consumers.
Thirdly, advertising will lower prices of legal services. Advertising will induce lawyers to compete in offering lower prices for legal services. As legal services become more affordable, middle and low income consumers who currently do not purchase necessary legal services will be able to purchase such services. Advertising, by enabling the dynamics of normal market forces to operate on the delivery of legal services, may alter methods of supplying, as well as delivering, legal services.
Fourthly, allowing advertising will eliminate the disparity emanating from the ‘advertising methods’ already in place. The fact is that despite the restriction imposed by the Rules, lawyers still use means of self-promotion to advertise themselves. Allowing all players in the field to advertise their services will facilitate in establishing a level-playing field for all players.
Hence, the ban on advertisement in the legal profession should be removed in order to facilitate competition in the legal profession. If beneficial information is being disseminated to the litigants by way of advertisements and an opportunity to compare the calibre of their potential counsels is being provided, advertisements should be permitted.
The Bar Council of India may allow advertisements in a regulated manner if it deems that to be the appropriate course of action. The Bar Council could formulate the conditions that shall to be adhered to for advertising the legal services, without actually nullifying the benefits of the advertisement of legal services.
Advertisements are a forum for establishing the utility of goods and services. They generate awareness in public regarding the availability of different brands of products/services, thereby, providing them with vast array of options to choose from and keeping them fully informed. Further, it enhances and encourages competition in the relevant market by providing a forum for launching of new products.
Though the law prohibiting legal advertising in India is founded on the British Victorian system, our law shows a trend of resisting change as we have not developed the same in light of the changing nature of legal services. In the age of information and commercialisation, the reasons based on the ground that law is a “noble” profession cannot be sustained because consumers of legal services are entitled to obtain the best value for their investment, similar to any other service. Every litigant ought to be provided with a platform from where he can identify the most suitable legal professional.
Ban on advertising leads to depriving consumers of valuable information about the advocates. This often results in a situation where consumers cannot make an informed choice from the competitive market since information relating to the service is not available to them. Moreover restriction on professional firms on informing potential users on range of their services and potential causes further injury to the competition. Thus, the regulations imposed on the legal services sector are anti-competitive and contrary to the goals and purpose of competition policy and Competition Act, 2002.
Truthful and objective advertising may actually help consumers to overcome the information asymmetry and make more informed purchasing decisions. Advertising can facilitate competition by informing consumers about different services being offered and allowing them to make better informed decisions. It can be a crucial competitive tool for new firms entering the market and for existing firms to launch new products, and in contrast, advertising restrictions reduce competition by increasing the costs of gaining information about different services, making it more difficult for consumers to search for the quality and price that best meets their needs.
It is time that we remove the veil of ignorance and acknowledge the fact of commercialisation of legal profession, thus regulating it accordingly to allow advertising of legal services, thereby ensuring and promoting competition in the legal profession.
** Research Associate (Law), CCI, presently posted in the Antitrust Division of CCI.
 Thomas D. Morgan, The Impact of Antitrust Law on the Legal Profession, 67 Fordham L. Rev. 415 (1998). Available at: https://ir.lawnet.fordham.edu/flr/vol67/iss2/7
 Section IV (Duty to Colleagues) of Chapter II (Standards of Professional Conduct and Etiquette) of Part VI (Rules Governing Advocates)
 AIR 1967 Mad 35
 (1976) 2 SCC 291
 AIR 1985 P&H 169
 (1995) 5 SCC 139
 Writ Petition (Civil) no. 532 of 2000.
 In various jurisdiction of the world such as USA, competition law is known as “antitrust law” and the officials are anti-trust officials, rather than competition officials. The terms will be used interchangeably in this Paper.
 Laurel S. Terry, The European Commission Project Regarding Competition in Professional Services, 29 Nw. J. Int’l L. & Bus. 1 (2009), available at < https://core.ac.uk/download/pdf/231036566.pdf>
 Communication from the Commission: Professional Services-Scope for More Reform: Follow-Up to the Report on Competition in Professional Services, at 10, COM (2005) 405 final (Sept. 5, 2005), available at http://eur-lex.europa.eu/LexUriServ /LexUriServ.do?uri=COM:2005:0405:FIN:EN:PDF [hereinafter Follow-Up Report].
 Supra Note 6.
 OECD, Competition in Professional Services, DAFFE/CLP(2000)2, available at http://www.oecd.org/dataoecd/35/4/1920231.pdf (“This document comprises proceedings in the original languages of a Roundtable on Competition in Professional Services, which was held by the Working Party No. 2 of the Committee on Competition Law and Policy in June 1999.”).
 Daniel Vdzquez Albert, Competition Law and Professional Practice, 11 ILSA J. INT’L & COMP. L. 555, 568 nn. 8-10 and accompanying text (2004-2005)
 Supra Note 6.
 433 U.S. 350 (1977)
 Supra Note 6.
 8.2.5, Chapter VII, Competition Policy and Professional Services, Report of High Level Committee on Competition Policy and Law- S.V.S. Raghavan Committee, 2000
 AIR 1976 SC 242.
 AIR 1996 Mad 427
 (2000) ALD (5) 367
 Competition Act, 2002, Section 2(u): “service” means service of any description which is made available to potential users and includes the provision of services in connection with business of any industrial or commercial matters such as banking, communication, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or other energy, boarding, lodging, entertainment, amusement, construction, repair, conveying of news or information and advertising.
 1978 AIR SC 548
 Supra Note 17.
 Supra Note 17.
 Model Rules of Professional Conduct, 1969
 433 U.S. 350
 Rule 7.2, Model Rules of Profession Conduct, 1983
 Rule 7.1, Model Rules of Profession Conduct, 1983
 Rule 7.3, Model Rules of Profession Conduct, 1983
 Maya Goldstein Bolocan, Professional Legal Ethics: A Comparative Perspective, CEELI Concept Paper Series 18 (2002)
 Rule 8.1, Solicitors’ Publicity Code, 2016
 Rule 8.7, Solicitors’ Publicity Code, 2016
 Rule 8.9, Solicitors’ Publicity Code, 2016
 Louise L. Hill, PUBLICITY RULES OF THE LEGAL PROFESSIONS WITHIN THE UNITED KINGDOM, available at <http://arizonajournal.org/wp-content/uploads/2015/11/Hill.pdf>
 CCBE CODE OF CONDUCT FOR LAWYERS IN THE EUROPEAN COMMUNITY R. 2.6 (2002), http://www.ccbe.org/en/publications_en.htm [hereinafter CCBE CODE]. The Code of Conduct for Lawyers in the European Union was originally adopted at the CCBE Plenary Session held on October 28, 1988 and subsequently amended during the CCBE Plenary Sessions on November 28, 1998 and December 6, 2002.
 Council Directive 77/249 of 22 March 1977 to Facilitate the Effective Exercise by Lawyers of Freedom to Provide Services, 1977 O.J. (L 78) 17 [hereinafter Lawyers’ Services Directive]
 Council Directive 89/48 of 21 December 1988 on a General System for the Recognition of Higher-Education Diplomas Awarded on Completion of Professional Education and Training of at Least Three Years’ Duration, 1989 O.J. (L 19) 16 [hereinafter Diploma Directive].
 See, e.g., Case C-340/89, Vlassopoulou v. Ministerium fur Justiz, 1991 E.C.R. I2357,  2 C.M.L.R. 221 (1993) (holding that when determining whether to admit a national of another state to its legal profession, the Member State must consider the evidence of legal qualification obtained in another member State); Case 292/86, Claude Gullung v. Conceils de l’Ordre des Avocats vu Barreau de Colmar et de Saverne, 1988 E.C.R. 111,  2 C.M.L.R. 57 (1988) (holding that unless barred from the profession for reasons relating to dignity, good repute, or integrity, a national of two Member States admitted to the legal profession as an advocat in one state must be recognized in the other)
 Roger J. Goebel, Lawyers in the European Community: Progress Towards Community-wide Rights of Practice, 15 FORDHAM INT’L L.J. 556, 561-60 (1992).
 CODE OF CONDUCT OF THE BAR OF ENGLAND AND WALES § 710.1-.2 (2002), available at http://www.barcouncil.org.uk/document.asp?languageid=1&documentid=4
 Available at <https://www.legislation.nsw.gov.au/view/html/inforce/current/sl-2015-0244>
 Section 36
 European Parliament Resolution on Market Regulations and Competition Rules for the Liberal Professions, 2004O.J.(C91E)126,availableathttp://eur-lex.europa. eu/LexUriServ/site/en/oj/2004/ceO91/ceO9120040415enO1260128.pdf
 Geoffrey C. Hazard Jr., Russell G. Pearce, and Jeffrey W. Stempel, Why Lawyers Should be Allowed to Advertise: A Market Analysis of Legal Services, 58 N.Y.U. L. Rev. 1084 (1983). Available at: http://repository.uchastings.edu/faculty_scholarship/931
ABOUT THE AUTHOR
Anam Ahmad is a Research Associate at Competition Commission of India.
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Kindly note that the views and opinions expressed are of the author and not of the Indian Journal of Law and Public Policy.