Opinion Lawyers can’t advertise. It’s an unfair restriction

But when he’s presented with some paperwork by a DSK staff member, he happily signs it without reading. “Guys, it’s been 20 years,” he says by way of explanation to the startled interlocutors. A voiceover follows: “At DSK Legal, trust is more than a value …”

The long shadow of Rule 36

The BCI issued a notice to DSK, directing the firm to take down the advertisement and asking it to show cause as to why disciplinary proceedings should not be instituted against it for professional misconduct.

It also referred to its press release from March 17, which denounced the use of Bollywood celebrities to promote a profession that is “deeply rooted in public trust and ethical standards” and “is fundamentally distinct from commercial business ventures.” The note also reiterated the BCI’s mandate against solicitation of legal work on social media and digital platforms.

The objection was grounded in Rule 36 of the BCI Rules, which prohibits advocates from “soliciting work or advertising, either directly or indirectly, whether by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations”. The rule itself has its origins in the British colonial legal tradition, which viewed advertising by legal professionals as dishonourable and undignified.

While the rule was tweaked in 2008 to permit the presentation of limited information on websites, it continues to be interpreted strictly by the BCI and the courts. Last year, the Madras High Court ordered the Bar Council of Tamil Nadu to take stringent action against online platforms listing legal services (such as Quickr, Sulekha, Just Dial) and advocates who advertise on these platforms.

Undoubtedly, there is a need for some standards to guide the field. Given the sensitive nature of legal issues and the far-reaching impact they have on individual lives, appropriate safeguards must be in place to prevent the public from being misled.

But is a blanket ban on solicitation the only way to achieve this objective? The fact is that many consumers of legal services are highly sophisticated — corporations, funds and HNIs. As the market for legal services in India matures and moves up the value chain, is it not time to reconsider the archaic nature of Rule 36?

How the UK liberalised its regime

As in several spheres of regulation, the United Kingdom itself has long moved on from a strict understanding of its equivalent of Rule 36. In 1986, spurred by Margaret Thatcher’s deregulation drive, the Law Society of England and Wales came up with a Solicitors’ Publicity Code, which allowed advertising provided it was not misleading, inaccurate or in bad taste.

In 2019, the Solicitors Regulation Authority, the independent regulatory arm of the Law Society, introduced the Standards and Regulations which are currently in force. These permit advertising as long as it complies with principles like acting with integrity and upholding public trust. In effect, solicitors in the UK are free to advertise their services online and offline so long as they avoid false claims or aggressive tactics. In fact, the UK regime even allows for comparative advertising if the claims are properly substantiated.

Notably, there’s been a gradual loosening of solicitation restrictions around UK barristers, too. The opening up on this front has been understandably more cautious, given the barrister’s role as a referral-based advocate and their self-image as aloof from commercialism.

But what started with allowing directory listing in 1990 had progressed to an unambiguous green signal for publicity by the time the Bar Standards Board’s first handbook was published in 2014. Under the current BSB rules, barristers may advertise their expertise, fees and services, including through websites and direct access portals, as long as the publicity is not misleading and doesn’t diminish public confidence in the legal system.

One look at the websites of renowned UK barristers’ chambers like Blackstone and One Essex Court conveys a sense of how the services and intellectual achievements of lawyers can be showcased in a manner that is elegant, useful and confidence-inspiring.

Other major jurisdictions, too, permit lawyers to advertise online. Unsurprisingly, the United States’ regime is more permissive than others but countries like China, Japan, Singapore and Germany also allow online advertising so long as professional codes are adhered to.

Online brand-building is a reality

The transformation of the UK’s equivalent of Rule 36 to a flexible framework has some lessons from India. Focusing on transparency and client protection (through fee disclosure, for instance) instead of professional mystique and abstract ideas of loftiness may go a long way in enhancing the competitiveness and quality of the legal profession.

Acknowledging that legal practice is a commercial endeavour and having practical rather than moralistic standards for misleading publicity may get rid of some of the dogmas around the profession and make it more aligned to the nuances of work life in the technological age. On social media platforms like LinkedIn and X, we see lawyers share snippets of their work days, legal research and wins in court. Official accounts of law firms often post information about deals they have completed. Such posts improve visibility and aid in the creation of a personal and institutional brand — as they should.

It’s also become increasingly untenable to maintain the fiction that legal services must not be commercialised, commodified or marketed. It’s no secret that the country’s top advocates and law firms charge a pretty penny. For others in the profession, working hard to make a name for themselves, these lawyers and firms are aspirational.

The blanket ban could be replaced by a more permissive regime that allows lawyers to publicise their services, ethically and responsibly. The BCI can also look for inspiration closer to home. It can examine how SEBI and the RBI have regulated advertising in the capital markets and financial services spaces. It’s time for the BCI to welcome change. It’s time to bridge the gap between mindset and market.

Lukose is CEO, Vahura and Shah is an editor and content consultant. Both have studied law