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Introduction:

The right to advertise is not guaranteed to the Indian Lawyers. In fact, the right to publicize or exhibit their work to solicit clients is statutorily prohibited. According to Rule 36 enunciated by the Bar Council of India, when read along with section 49 (1)(c) of the Advocates Act, 1961, imposes a complete ban upon the right to advertise. However, an amendment in the year 2008 brought significant changes to BCI rules. Now the advocates can furnish the essential details and information like name, enrollment number, professional and academic details and their area of practice on their website. The amendment further spells that any other information provided by the advocate as prescribed under Rule 36, will make the lawyer liable under Section 35 of the Advocates Act, 1961 for professional misconduct.

The rule in itself is arbitrary and restrictive and hence in a plethora of cases the rule has been challenged. Different courts have given their diverse opinions giving rise to conflicting judgments on this issue, some of which are :

1. C.D. Sekkizhar v. Secretary Bar Council AIR 1967 Mad 35

The bench observed that the advertisements by the advocates might lead to the feeling of jealousy, and this is unbecoming of such a noble profession.

    2.  Bar Council of Maharashtra v M. V. Dabholkar (1976) 2 SCC 291 

The Apex court, in the case, held that the advertisement could lead to commercial competition and procurement and hence it could lead to vulgarizing the legal profession.

However, in contrast to the judgments as mentioned above, the courts have also observed:

1. Dharam Vir Singh v Vinod Mahajan AIR 1985 P&H 169

The court, in this case, held that providing legal service to the community comes under the purview of the business proposition. Hence, the advertisement of such business would fall under commercial speech, which is well protected under Art.19(1)(a) of the Indian Constitution.

2. Tata Yellow Pages v MTNL (1995) 5 SCC 139

In this landmark judgment, the apex court held that the commercial speech falls under the purview of a person's fundamental right and, hence, is well protected under Art 19(1)(a) of the Indian Constitution. As the full bench did not hear the matter, there was no effect on the judgment declaring rule 36 of the Bar Council of India unconstitutional.

Effect on competition by advertising restriction in Legal Profession

The restriction on advertising affects the growth and leads to denying the opportunities in the profession. These restrictions lead to compromising on the desire and the ability to compete globally in the legal market. Some of the changes in the advertisement regulations would have a positive impact on the competition in the market, and here are, therefore few suggestions to open up the market for advertisements for the advocates:

1. It is challenging for the first generation lawyer to establish a client base and reputation in the market; hence, regulated permission to advertise the legal service would provide him with diverse legal opportunities. The more prominent firms and the renowned lawyers tend to attract the work of the litigants by their name in the market, hence obscuring the work of the small law firms and the lesser-known lawyers. All this results in the concentration of power with the few market players who also act as a barrier to entering the market.

2. The advertising would make the general litigants aware of the additional legal information beyond what they get through the conventional means. This permits the consumers to make more informed decisions relating to the litigation and opt for their legal representatives. This can be used to regulate the competition in the market amongst the new entrants like small law firms and the lawyers and the big established law firms and lawyers. They will now have to work to better the delivery of the legal services.

3. Competition in the market regulates the pricing of the products and services. Hence, if regulated advertisement is allowed in the legal fraternity, it would induce a cap on pricing in providing the legal services in the market. This would change the legal service regime as the middle class, and the lower-income consumers would be able to use the legal services to get their legal issues redressed.

4. The regulation of advertisement would also facilitate in making the market a level playing field as though there are restrictions regarding promotions. However, lawyers still have some opportunities to publicize their services. 

In conclusion, it will be beneficial for the consumers (Litigants) and the new entrants like small law firms and lawyers if the regulated advertisement of the legal profession is allowed, which will increase the competition in the market. It is time we remove the veil of ignorance and accept the commercialization of the legal profession, which thereby promotes a safer environment for healthy advertisement. 

References:

1.https://ijlpp.com/restrictions-on-advertisement-in-the-legal-profession-in-india-the-anti-competitive-aspect/

2.https://www.mondaq.com/india/advertising-marketing-branding/969156/reimagining-the-lawyer39s-right-to-advertise-in-a-covid-19-world-the-new-normal

3.https://www.legalserviceindia.com/legal/article-3261-right-to-advertisement-of-legal-professionals-in-india.html

4.https://blog.ipleaders.in/bar-against-legal-advertising-and-solicitation/