Following a judgment pronounced recently by the Madras High Court which underscored that the legal profession is a noble service to society and not a business driven by profit motive, the Bar Council of India (BCI) in a press release directed all state bar councils to take stringent disciplinary actions against advocates found advertising or soliciting work through online portals which is a direct violation of the BCI rules.
The key points addressed include:
1. Violation of BCI rules by online platforms: Practices of online platforms offering lawyer services were examined by the BCI and found to be in violation of the BCI rules. The Court ruled that under Rule 36 of the Bar Council of India Rules, 1975, advocates are prohibited from advertising or soliciting work directly or indirectly.
Rule 36 states: “An advocate shall not solicit work or advertise, either directly or indirectly, whether by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing or inspiring newspaper comments or producing his photographs to be published in connection with cases in which he has been engaged or concerned.” This rule aims to maintain the decorum and ethics of the legal profession.
2. Advertising and solicitation by lawyers: The permissibility of lawyers advertising and soliciting work was scrutinized by the BCI and deemed inappropriate.
3. Role of online intermediaries: The involvement of online intermediaries in facilitating lawyer services was assessed by the BCI and found to be in breach of professional conduct standards.
4. Applicability of safe harbour provisions: The Court ruled that online platforms cannot seek protection under Section 79 of the Information Technology Act for activities illegal under the Advocates Act and BCI Rules. The BCI has issued cease and desist notices to major online services. The notices address the illegal advertising and solicitation of legal services on these platforms, highlighting the following violations:
(i) Illegal solicitation of work: Platforms allowing advocates to advertise and solicit work, violating Rule 36 of the BCI Rules.
(ii) Unethical ratings and offers: The practice of providing ratings and offer prices for lawyer services undermines the ethical standards of the legal profession.
The key directives issued by the BCI include;
1. Disciplinary proceedings: Initiate disciplinary actions against advocates advertising or seeking work through online portals.
2. Complaints against online platforms: File complaints against online service providers facilitating the illegal advertisement of lawyers.
3. Removal of illegal advertisements: Ensure the removal of all illegal advertisements related to legal services on online platforms within four weeks.
4. Compliance deadline: A compliance hearing is scheduled for August 20, 2024. State bar councils must submit a report on actions taken by August 10, 2024.
Seeking immediate action, the BCI directed the online platforms to:
- Remove all listings, profiles and advertisements related to legal practices by advocates immediately and no later than four weeks from the date of the notice.
- Cease and desist any operation enabling the advertisement or solicitation of legal practice by advocates.
- Submit a detailed compliance report outlining the actions taken to the BCI by August 10, 2024.
The press release issued by the BCI said that failure to comply with these directives will result in the Council initiating legal proceedings and seeking appropriate penalties against the non-compliant organizations.
It further said that the BCI reiterates its commitment to upholding the dignity and integrity of the legal profession and urges all concerned parties to comply with these directives promptly and rigorously.
Earlier, the Madras High Court’s Division Bench of Justice SM Subramaniam and Justice C Kumarappan said that unlike a few other countries, the Indian legal profession is unique as “we represent selfless courage by spearheading some of the rights-based movements in our country. Our Indian freedom movement, comprising some of the best lawyers in the country, stands testament to the same. Every lawyer in our country is a contributor in the process of delivery of justice. And it is not for any third party to brand or rate the services of a lawyer. Legal profession is not and can never be treated as a business”.
The Court also said that branding culture in the legal profession is detrimental to society. Ranking or providing customer ratings to lawyers is unheard of and demeans the ethos of the profession. Professional dignity and integrity must never be compromised especially in the legal profession, the Court said.
Further the Court noted that it is agonising that some of the legal professionals today are 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, the larger part is a service to the society. Though a service fee is paid to a lawyer, it is paid out of respect for their time and knowledge.
“The legal profession cannot be viewed with a shallow lens. Some may try to find merit in the argument that with the growing need for professional services, a business model can help in its growth further. But this Court does not affirm this view. The tools employed in the profession can be upgraded or changed based on changing circumstances, (a classic example of this is our seamless shift from physical hearing to virtual hearing during the Covid-19 lockdown). But the spirit and character which is the basic structure of this profession can never be altered,” the Court said.
The object of any business or trade is profit. It cannot be termed as a business, when it is not driven by profit. However, the legal profession cannot be treated as business. Legal profession can never be profit driven, or only for the rich and mighty. It serves the needs of anyone and everyone who knocks on the doors of justice. Law is not about the survival of the fittest, but it is more about the survival of the distressed, the Court observed.
The Court observed that marketing of lawyers brings down the nobility and integrity of the profession. The process of delivery of justice is strongly based on the Constitution and lawyers being the upholders of law cannot treat the profession as a business. It noted that it would be contradictory to say that a lawyer who fights for justice is doing so with a profit motive.
The Court said that such advertisements of lawyers without any regulation can spread misinformation among the public. The BCI is the authority to regulate the standards of professional conduct and etiquette of lawyers. Section 49 of the Advocates Act,1961, stipulates the general power of the BCI to make rules.
The Court noted that the object here is to narrow down the chasm of inequality. In professions such as law, it is difficult to establish a level-playing field mainly due to economic factors. Such being the scenario, allowing advertisements in this profession will widen the inequality. Lawyers with money power can easily place advertisements and gain an added advantage as
compared to others. It is noteworthy that since law cannot be treated as a business, economic factors cannot be used as a grading mechanism to decide on categorising a lawyer. Every lawyer has his/her own skill sets and are all contributors in this justice delivery system. Mere ranking or grading of lawyers based on economic factors or otherwise degrades the virtues of the profession.
Lawyers with more money power can place advertisements across different websites and economically disadvantaged lawyers will be unable to approach these sites. Moreover, a legal profession is not a race to the top, it is about service to the downtrodden. Today, there are innumerable lawyers who are working pro bono for different public causes. Excellence is not an accident. It is always the result of sincere effort and intellect execution. In no way can their services be measured monetarily or otherwise. They pragmatically work towards progress of both the judiciary and the society. Therefore, the advertisements of lawyers in websites covertly and overtly stand against elements of fairness and justice.
The Court further said that “lawyers are defenders for the cause of the oppressed and they strive towards upholding equality under the law. The reason we wear black robes holds testament to the fact that all are equal before law. It symbolises impartiality and equality. There are innumerable jobs where the sole object is money making, but legal profession is not a commercial activity.”
—By Shivam Sharma and India Legal Bureau