Lawyering in Times of COVID: Time to Revisit Outdated Laws on The Right to Advertise

The unexpected surge of the COVID threat has changed the world as we know it. During these unprecedented times, professionals across different channels of work have altered their work dynamic and resorted to working from home. However, all has not been smooth for people working in certain sectors as the idea of working from home is still relatively new. One such area is the legal profession.

Since its inception, all professionals practicing law have been going to courts for work and this routine has now been affected due to the constant implementation of lockdowns. However, the judiciary has somewhat tackled this challenge by resorting to virtual/online hearings for cases across India. As a result, lawyers can now argue cases from the comfort of their own homes.

However, not many realise that at a time like this, there exists a much bigger challenge that the legal fraternity has been continuously struggling with. Even before the COVID time, legal professionals have had to bear the brunt of outdated laws that prohibited them from engaging in any self-promotion activities.

From the Victorian era, the legal profession has always been seen as an honourable one and as a result, lawyers have been prohibited from advertising their vocation in any form. The thought process behind such prohibition is that lawyers should not profit from the misery of ordinary people and hence, they are prohibited from doing anything that could possibly influence a prospective client facing an unfortunate legal situation.

The apex court in Indian Council of Legal Aid and Advice v. Bar Council of India, stated that the regulations are justified on grounds of public policy and dignity of the profession. The number of lawyers enrolling with the Indian Bar Council is on the rise but these professionals still do not possess the right to advertise their profession, which seems unfortunate.

Legal professionals in India are prohibited from advertising their work in any manner and the same can be inferred from Rule 36 of the Bar Council of India Rules read with Section 49(1)(c) of the Advocates Act, 1961. The vaguely worded Rule 36 stipulates that lawyers can only furnish certain basic information such as their name, qualifications and area of practice. In the event that any additional information is furnished, the lawyer in question becomes liable under section 35 of the Advocates Act for professional misconduct.

While one must credit the Indian justice system for restoring normalcy, we must also question the continuance of such outdated laws that seem to be troubling lawyers now more than ever.

Lawyers, legal professionals and graduates that are relatively new to the field of law can be classified as the worst affected by the pandemic as they lack the resources to find work in a post COVID world.

Since lawyers do not have the right to advertise or publicize their work, it is a challenge for them to find clients in the first place. The work from home initiative intends to reduce the movement of people which basically means no physical interaction whatsoever. Prior to COVID, lawyers could present themselves at courts on a daily basis and obtain work through word of mouth. However, the current scenario completely changes the ordinary course of things and lawyers must now uncover new ways to find work. By now, we are all well aware of the fact that the pandemic is here is stay and that it is going to be a while before normalcy is restored in terms of work life. Considering this, it would be in the best interest of legal professionals to revisit and amend some of these outdated laws that are preventing them from making a living.

This law can be traced back to the landmark case of Bar Council of Maharashtra v. M.C. Dabholkar, where Justice Krishna Iyer examined the idea of advertising legal services and whether it amounts to violation of ethical standards. Justice Iyer noted 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, not briefs, not merchandise, and so the heaven of commercial competition should not vulgarise the legal profession”.

However, the blanket ban on advertising came to an end when a part of the prohibition imposed on the advocates was lifted in the year 2008. Despite allowing lawyers and law firms to promote their practice, such freedom came with a multitude of restrictions which put them at a position of disadvantage as opposed to professionals from other countries. Many countries have long moved on from archaic prohibitions on advertising of legal profession. In contrast to these countries, India remains to be one of the very few countries that is still adamant on sticking to the outdated prohibition rules.

Yet, notwithstanding the restrictions on the freedom to advertise, many lawyers often resort to advertising through visiting cards, speeches, seminars, election manifestos, hoardings, LinkedIn profiles, etc. Moreover, newspapers publishing the outcomes of high-profile cases along with names of the advocates, lawyers appearing on national television for interviews, law firms glorifying their achievements on their websites, etc, constitute advertisements and are essentially flouting the rules.

During the lockdown, we have seen a drastic increase in the usage of social media. Even legal professionals have managed to make the most out of this time by engaging in webinars and other virtual activities that help expand legal knowledge.

While such activities are beneficial to the legal community as a whole, it is also in contravention to the rules that prohibit self-promotion activities. It is evident that despite having laws in place, many lawyers and law firms are still managing to find loopholes to try and promote themselves. This goes to show that the existing laws are merely on paper and are not being strictly enforced.

However, in light of the changing times, where working from home and engaging in various virtual webinars on social media sites has become the new normal, reputed legal professionals cannot be faulted for revealing certain harmless case details to avid participants. An act such as this might constitute professional misconduct for it amounts to advertising, but one must not overlook the fact that legal knowledge is being imparted to young lawyers at a time when classroom education is not a feasible option. The Bar Council of India should acknowledge the changes that are taking place in the society due to COVID and must revaluate the usage of outdated laws.

Laws must be more flexible and allow upcoming lawyers to market themselves to the best of their abilities for it is the only way to find work and make a living at unprecedented times such as these. Additionally, we must also look the hardships being faced by the general public that are in need of legal advice at a time like this. The Andhra Pradesh High Court in K. Vishnu v. National Consumer Disputes Redressal Commission and Anr, made an observation that the legal profession falls within the ambit of the Consumer Protection Act, 1986.

Now, it is understood that the goal of this Act is to give consumers the access to any and all information available about the service that shall be receiving. In light of the aforementioned judgement, it is only fair for the consumer, which in this case is the client looking for legal advice, is given all possible information about the legal service that will be given to him/her by the legal professional.

Due to the current COVID situation, the need for providing such information becomes more prominent as physical interaction has been restricted and there is no other effective means through which information can be imparted to the client. Hence, it is time to acknowledge the fact that the dynamics of the legal profession have changed and change the existing laws accordingly. It is safe to assume that the legal profession is slowly moving towards the path of commercialisation and it can no longer be held back by the existing restrictions on advertising and marketing.

Even in the US, it was unprofessional to solicit professional employment by the use of advertisements according to Ordinance 27, Model Rules of Professional Conduct, 1969. However, following the decision given the US Supreme Court in the case of Bates v. State Bar of Arizona, the right to advertise has become a constitutionally protected right.

In the UK, the Code of Conduct of The Bar of England And Wales allows barristers to publicise their vocation which includes the cases they have appeared for and even the “statements about the quality of the barrister’s work” and “the size or success of his practice” provided they do not resort to false or misleading statements.

In our opinion, India should follow the path set by countries like US and UK and move away from age old laws that restrict lawyers from freely practicing their profession. It is important to understand that in a country like India, there are various young lawyers who just set foot into the legal field, trying to make a name for themselves and they cannot easily put themselves out there without the right kind of advertising.

Moreover, they face serious competition from senior advocates who often rely on word of mouth. It is also important to understand that we live in a digital age where word travels faster through social media platforms than it does through mouth. Hence, allowing lawyers and law firms to promote their practice through such digital marketing practices will not only boost their clientele but also increase the overall access to justice at times like these.

We must do away with the common misconception that advertising of legal practice is associated to lack of professionalism. Instead, we must remove the existing restrictions and promote advertising of legal profession for better access to justice.

Advertising in the legal field should be allowed as long as it promotes legal awareness, increases the access to legal resources and gives potential clients the opportunity to evaluate the competence of a certain legal professional.

We have already witnessed ground-breaking changes across numerous fields due to the current COVID situation and it is now left to our legal system to take cognizance of same and open the door to new rules.

(The authors are fifth-year law students at Jindal Global Law School)