New Delhi: From taking objection to ranking of lawyers, to the “branding culture”, the Madras High Court’s judgment demanding action against lawyers for advertising and soliciting work online may impact several from the profession who have, in the past few years, established a significant online presence.
Passed Wednesday by a bench comprising Justices S.M. Subramaniam and C. Kumarappan, the judgment directed the Bar Council of India (BCI) to issue circulars or guidelines to state bar councils to initiate disciplinary proceedings against lawyers “advertising, soliciting works directly or indirectly, whether by circulars, advertisements, touts, personal communication, interviews not warranted by personal relations, furnishing or inspiring newspaper comments or producing his photographs to be published in connection with a case where he is engaged or concerned”.
The circulars have been asked to be issued within four weeks.
The judgment was passed on a PIL filed by one P.N. Vignesh, against the chairman of the Bar Council of India, the chairman of the Bar Council of Tamil Nadu and Puducherry, as well as websites like quikr.in, sulekha.com and justdial.com as respondents.
The petition demanded a direction to the two bar councils to take appropriate action against these websites as well as any other service providers, restraining them from carrying on the business of providing legal services on their portals or apps.
Manan Kumar Mishra, chairman of BCI, told ThePrint that the council was planning to send a communication to the state bar councils, in reference to the high court judgment.
However, Supreme Court lawyer Nipun Saxena believes the ruling would have “perilous effect” on the online presence of all lawyers.
“In this day and age, the mediums of communication have drastically altered. In the current age, every person has their own virtual profile. A person cannot be digitally reclusive or live like a hermit,” he explained.
The judgment also took objection to the ranking of lawyers on these websites, and asserted that providing customer ratings or rankings to lawyers “demeans the ethos of the profession”. This was after the court noted that these websites provide a list of lawyers or law firms ranked as “platinum”, “top service provider”, “top choice” and “premium”.
According to Saxena, words like “premium lawyers” and “best lawyer” are “absolutely forbidden and this categorisation glaringly breaches the Rules of Professional Conduct”.
However, he asserted that “one cannot shut their eyes to the reality that clients prefer searching for lawyers through online modes”.
“The digital space is the new directory or yellow pages. The Rules therefore cannot be construed so rigidly so as to deprive individual first-generation lawyers from even being ‘discovered’ by clients, even though they have not engaged services of intermediaries,” he added.
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What does the law say?
Under Section 49 of the Advocates Act, 1961, the BCI has the authority to establish rules and regulations for lawyers across the country. Accordingly, it has framed the Bar Council of India Rules.
Rule 36 of the BCI Rules prohibits an advocate from soliciting work or advertising, either directly or indirectly, “whether by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned”.
The Rules, therefore, bar lawyers from soliciting work or advertising themselves, either directly or through intermediaries. Violation of Rule 36 can invite repercussions under Section 35 of the Advocates Act, dealing with misconduct.
Rule 36 was amended in 2008, to liberalise the strict ban on lawyer advertising. The rule now permits lawyers to showcase their basic information such as their name, contact details, qualifications, and areas of practice on their websites.
“Even the Bar Council of India has recognised online presence and has therefore permitted lawyers to operate and maintain their websites,” Saxena told ThePrint.
However, according to him, the Rules “would require a revamp considering that the online presence of professionals is now necessary for potential clients to search for lawyers”.
“When the means of communication have changed, so should the Rules,” he added.
The post-internet world
In light of the BCI Rules, Supreme Court senior advocate Sunil Fernandes told ThePrint that the high court judgment only reiterates a long-standing and salutary rule of legal practice, that no legal professional shall solicit work from clients or advertise his/her work.
However, he asserts that the problem lies in enforcing this rule.
He says that the judgment, “though well intentioned, fails to take note of the fact that with exponential growth of social media and legal websites, advertisement or soliciting of work may not be in the direct traditional form, for eg, as advertisements in newspapers or yellow pages”.
“In the post-internet world, advertising and soliciting can take place through social media like Facebook, LinkedIn, Instagram and even WhatsApp groups, and websites dedicated to legal reporting like Bar and Bench and LiveLaw can be unwitting carriers of advertising a lawyer’s work,” Fernandes added.
Additionally, Supreme Court lawyer Pallavi Pratap believes that “it is imperative that conduct is defined as to what is considered as solicitation or advertisement and what is considered as knowledge dissemination”.
Once such a clarification is given, she asserts that time should be given to lawyers to take necessary steps for falling in line with what the law says and abide by it.
“Pages like Justdial etc. are an online directory, which provides for details of lawyers. So one needs to examine whether that will be considered as advertisement,” she added.
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From reels to LinkedIn
While advocating for an update of the Rules, Saxena also talks about the potential misuse of the relaxation.
“Recently, we have witnessed a deluge of instances where counsels are engaged in self-glorification and advertisement by sharing daily order sheets on their LinkedIn page, to the rather misadventurous lot who have started their own Instagram reels and channels giving their two bits on different aspects of practice, including strategies on matrimonial, property and criminal litigation,” he explained.
He also referred to the distribution of awards to lawyers (by several organisatons), on the payment of a certain amount of money, calling it “equally concerning”. All these practices, he asserted, would fall foul of the BCI Rules.
Meanwhile, Fernandes asserted that the Madras High Court as well as the BCI must tread cautiously and ensure that only advertisements in yellow pages and newspapers are prohibited.
He urges them to be vary of the fact that the judgment “must not be misused to bring in its sweep social media activity which ought to be protected under Article 19” of the Constitution of India.
‘Neither job, nor business’
In its judgment, the high court explained that unlike other countries, the legal profession in India “is unique as we represent selfless courage by spearheading some of the rights-based movements in our country”.
Explaining the character of the legal profession, the court observed: “The object of any business is profit but the sole object of the legal profession is justice. Truth and Justice can never be traded. And lawyers being important elements in this fight for Truth and Justice can never be equated with businessmen or traders.”
In its defence, justdial.com had submitted that it was only providing online directory services, and not soliciting work for lawyers.
However, going through these websites, the court noted that when a lawyer is searched for, they provide options such as property/RERA lawyers, corporate lawyers and consumer lawyers. It further asserted that these websites are not only grading the lawyers, but also providing them a platform to connect with potential clients.
It noted that lawyers were registering their names on these websites by paying a fee. “Such companies are aiding and inducing to solicit works from litigants and connecting them with the lawyers. This is clearly an action of a ‘tout’ as mentioned in Rule 36,” the court then opined.
The bench called it “agonising” that legal professionals today were trying to adopt a business model.
“Legal service is neither a job nor a business. A business is driven purely by profit motive. But in law, a larger part is service to the society. Though a service fee is paid to a lawyer, it is paid out of respect for their time and knowledge,” it observed.
The court said it was “appalled” that a business model was being adopted in the profession. It observed this was in reference to “instances of self-branding of lawyers and promotions through advertisements, giving customer ratings to the lawyers and unverified claims of expertise in specific areas of law, enlisting their names on business websites and providing offer price for legal consultations”.
‘Register complaints, issue advisories’
The high court has also directed the BCI to register complaints against these online service providers or intermediaries who are “conspiring or abetting or aiding or inducing whether by threats or promise or otherwise in the commission of unlawful act of publication of advertisement by lawyers”.
It has been further directed to initiate all appropriate actions to remove the advertisements published by lawyers and to issue advisories to intermediaries to not publish such ads. The BCI, the court said, can take the central government’s assistance to prevent such “unlawful acts” by online service providers.
Additionally, the websites have been asked to remove all content that violates Rule 36 of the BCI Rules within four weeks.
(Edited by Nida Fatima Siddiqui)