REMOVING OF THE BAN ON ADVERTISING OF LAWYERS

Law has always been considered as a voluntary service meant to provide aid to the society in case of any legal injury and this profession is categorized as a noble one. Since the inception of this rule, it has been said that any kind of advertisement will only blemish the true image of this nobleness. The same being said, it is a need to first understand the meaning of advertisement and how it holds the power to ruin the nobility of a profession. As per common advertising, advertising is to promote a particular thing in such a way that it attracts customers. If we incorporate this understanding in law, advertisements might just attract more and more wrong-doings to take the aid of legal assistance.

Advertising has always been an alluring representation of a particular product or service in such a way that the consumers get magnetically attracted towards it even if they did not seem to have the need for the same. Now, if the same understanding of advertisement is introduced into the field of law, there might be a possibility of attracting unnecessary suits by making people aware of certain rights they thought never existed. Advertising was slandered because the “wrong” people sought the “wrong” clients. But the rationalization for the ban extended to a definition of legal professional itself.[i]

 

Watching through the binoculars of Law

Even if the basic logic behind the ban on advertising is understood, there have also been legal analogies behind such ban. From a legal point of view, the opinion has been varying from one person to another. However, there have been certain remarkable judgments which have laid down the validity of advertising for lawyers. In the case of Bates v. State of Arizona[ii], the two young lawyers, John Bates and Van O’Steen, had taken the aid of Arizona Republic to advertise their services and they had also mentioned that they would be charging reasonable fees for such services. This advertisement was seen as a blatant violation of the Arizona Rules that governed any advertisement made by attorneys and they were burdened under to obligation to be disciplined accordingly. However, according to the majority decision of the Court, “it was important that the public be aware of the prices, nature, and availability of products and services in a free enterprise system and having all available information at their disposal would allow potential clients to make an informed choice”.[iii]  Although the basic importance of advertisement was understood, it was also pertinent to understand that false advertisements could amount to gross loss to the clients and such misleading and false advertisements need to be stopped.

Later, the Bates’ decision was further complimented with the decision held by a majority of the justices in the case of Peel v. Attorney Registration and Disciplinary Commission of Illinois[iv], that “statements of specialization on letterhead stationery could not be banned by the state provided the statement was accurate”[v].

Although the state may prohibit misleading advertisements, the state cannot ban potentially misleading information if that information may be presented in a non-deceptive way.[vi]

Rule 36 of the Bar Council of India Rules imposes prohibition on lawyers from advertising their services in whatever means possible.In the leading case of Bar Council of Maharastra v. M.V.Dhabolkar[vii],Justice Krishna Iyer observed, “law is not a trade, not briefs and not merchandise and so the heaven ofcommercial competition or procurement should not vulgarize the legal profession.[viii]” However, later in the year 2008, this particular Rule 36 was amended in order to be a little lenient towards advocates. Under the amended rule, advocates can mention in their chosen websites, their names, telephone numbers, e-mail ID, professional qualification and areas of specialization.[ix]

The Practical and Strategic View-point

Apart from all the afore-mentioned findings and research, one very strange aspect is that many lawyers do advertise themselves. Just before starting with this article, I was doing a basic research and in that time span of my research, I was able to note the names of various lawyers, the firms they belong to and the work they have done. The whole point of ban on advertising is to not allow lawyers to promote their services. However, such promotion of services happens through various other methods where lawyers disseminate information to the public with the help of media, blogs and websites.

Once a particular instance takes place, the media becomes active enough to carry out a research through various interviews. Any opinion made by a particular lawyer in any of those interviews can make him famous. In case a lawyer is not interviewed at that moment, a blog or a website will definitely punch in a few statements made by certain lawyers regarding the issue.

The strategic part is that whenever the name of the lawyer is mentioned, it comes with a long suffix containing the firm’s name where he belongs, the law he deals with and whether the firm is a top tier law firm or not.

Advertising, if allowed absolutely, will lead to a growth in competition for attracting more consumers through the method of advertising. Every lawyer or law firm will invest their best to advertise and this will end up increasing the cost of litigation by adding the advertisement costs. There is also a chance that lawyers will get to be chosen by their advertising efforts instead of their methods of fighting for justice.

If we look at the other side of the picture, it is now a known fact that lawyers are allowed to maintain their websites. Even if they do not directly advertise themselves, these websites aid them a lot to get their names well recognized. Such recognition can be earned by such lawyers through:

  • The use of social networking to tweet about a particular concern regarding a news item or to post a landmark judgment with own comments on a professional social network. One post on a social media gets viewed by a huge crowd because in today’s world, every person is creating a social identity.
  • Sponsoring various moot-court competitions in well-known law schools or universities. The subject matter of the moot problems reflects their field of specialization in law. The results of such competitions result in bringing out a rank list called Moot Premier League where the universities are ranked. In a fight for a desired rank, students compete more and resultantly the name of the organizing law firm becomes famous.
  • Creating own blogs and posting articles relating to legal issues. Such posts on these blogs can again be further circulated through social media so much so that people recognize the writer. Blog posts have become a trend these days where one can express their thoughts and views. Such posts reach people and then in the march for debating about opinions, the writer of the post gets recognized to a large extent.
  • Organizing free legal aid clinics for one day is a very strategic formula for attracting clients. Once you provide them with a free service which makes them believe that you have the capability to solve all their problems in life, they will run back to you even when your service is not free. The major element required in this formula is ‘the power to convince’.
  • Inviting students for internship programs. Legal internships are a very good way of teaching the practical side of law to students in order to get them prepared for future progress in their career.

Hence, it is well founded at this point of time that lawyers are allowed to make the public aware of their presence. However, the line of difference is drawn between ‘getting recognized’ and ‘promoting themselves’. The former is just a manner to help the public in case they are in trouble whereas the latter can lead the public to getting instigated to get involved in more wrong-doings just because the lawyers are available at a “supposedly” reasonable rate to rescue them. Thus, walking really parallel to the path of legal restrictions, a lawyer can take the help of strategic methods to promote their services.

[i]Sonja JM and JM Cooper, ‘Comments on Lawyer Advertising Papers’ [2002] 14(1) Law and Literature

[ii] Bates v. State of Arizona, 433 U.S. 350,1977

[iii]Bates v. State Bar of Arizona, 433 U.S. 350,1977

[iv]Peel v. Attorney Registration and Disciplinary Commission of Illinois , 496 U.S. 91, 1990

[v]ibid

[vi]Lauren Bowen, ‘Advertising and the Legal Profession’ [1995] 18(1) The Justice System Journal

[vii]Bar Council of Maharastra v. M.V.Dhabolkar, (1976) 2 SCC 291.

[viii] ibid

[ix]Indiatimes.com, ‘Lawyers can advertise on Internet, BCI tells Supreme Court’ (The Economic Times, 28 July 2008) <http://economictimes.indiatimes.com/news/politics-and-nation/lawyers-can-advertise-on-internet-bci-tells-supreme-court/articleshow/3298619.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst>accessed 12 August 2017