PROFESSIONAL ETHICS & ACCOUNTING SYSTEM
RESPONSE PAPER- 1
G.B.Pranav Sriram
BA0150031
Lloyd Pearson stated that “there is an insufficient information about the practice of law by
advocates in India”1. It is because that as per the Rule 36 of the BCI Rules,
“an advocate is prohibitedfrom soliciting work or advertising, either directly or
indirectly,whether by circulars, advertisements, touts, personalcommunications,
interviews not warranted by personal relations,furnishing inspiring newspaper
comments or producing hisphotographs to be published in connection with cases in
which hehas been engaged or concerned. Even the sign board, name plateor stationery
of an advocate should not indicate that he is or hasbeenthe President or Member of a
Bar Council or of anyAssociation or that he has been associated with any person
ororganisation or with any particular cause or matter or that hespecialises in any
particular type of work or that he has been aJudge or an Advocate General.”
In earlier days, there was a complete ban on lawyers on advertisements, but after 2008, the
rule permitted the advocates to organise website, but then also, it has to contain information
about their contact and area of specialization. I think this is violative of Article 19 (1)
(a),Article 19 (1) (g) & Article 19 (2) of Constitution of India, 1950.
Article 19 (1) (a) of Constitution of India, 1950 gives the freedom of speech and expression,
but there are some exceptions like interestof sovereignty, integrity and security of the State,
friendlyrelations with foreign states, public order, decency or morality orin relation to
contempt of Court, defamation or incitement of anoffence. But advertising about their legal
profession, will not fall under those exceptions.
Because in the supreme court case of “TATA yellow pages V. MTNL2”, the Court held that
the commercial speech (advertising) is protected under the Article 19 (1) (a) of Indian
constitution, 1950 and also held that the rendering professional legal services is a business
1
John Grimley, India to lift restrictions on law firm websites, ASIA LAW PORTAL,
(March 26, 2014), http://www.asialawportal.com/2014/03/26/india-to-liftrestrictions-
on-law-firm-websites/
2
1995 AIR 2438
PROFESSIONAL ETHICS & ACCOUNTING SYSTEM
proposition, so advertising for such profession is also falls under the definition of commercial
speech”.
Also, in the case of Sakpal Papers v. Union of India3, the supreme court held that “freedom
of speech cannot be taken away by placing restrictions on business of citizens”. So, the rule
36 of BCI rules, violates the Article 19 (1) (a) of Indian Constitution, 1950.
Rule 36 of BCI rules is also violates the Article 19 (1) (g)of Indian Constitution, 1950.,
because the Article have a reasonable restriction on prohibiting advertisement, only if such
advertisement is against the public interest like (immoral or obscene), but advertising about
legal profession is not against the public interest. So, the rule 36 of BCI Rules is complete
violative to Article 19 (1) (g)of Indian Constitution, 1950.
The restriction on advertisements by advocates under Rule 36 0f BCI rules, is not
constitutionally permissible under Article 19 (2) of Indian Constitution, 1950. In the case of
O.K. Ghosh v. E.X. Joseph4, the court held that “The ban on advertisements by lawyers is
not constitutionallypermissible, even on the ground of “public order” under Article19(2) as
thepublic order has been held to be synonymous withpublic peace, safety, tranquillity and the
like.”
In United States of America, there was a ban on profession advertisement till 1977, after
that the ban was abolished. After then, advertisement by legal professional is governed by
Model Rules of Professional Conduct, 1983. But there also, reasonable restriction like, “there
should be no false or misleading communications should be made about the lawyer or the
lawyer’s services”5. Also, “No lawyer shall solicit professional employment in person,live
telephone or electronic contract when a significantmotive is the lawyer’s pecuniary gain”6.
So, what I am trying to say is advertisement by legal professional should be permitted by the
way of regulating it as they doing in USA and also it creates awareness about legal
professions and creates an opportunity to know the competence such legal professional to the
clients or consumers.
3
AIR 1962 SC 305
4
AIR 1963 SC 812,
5
Model Rules of Professional Conduct, 1983.
6
Model Rules of Professional Conduct, 1983.
PROFESSIONAL ETHICS & ACCOUNTING SYSTEM
What if someone needs a legal aid? They have to rely on someone to find a good advocate for
them, so here they have take a leap of faith. I am saying that “advertising by legal
professionals plays an important role on aiding the clients to find a competent lawyer to aid
them”. The Bar Council of India should create rules to regulate the conduct of lawyers in
matter of advertising about the legal profession like they doing in United States of America.
