Reimagining the Lawyer's Right to Advertise in a COVID-19 world: The New Normal
In the Indian context, lawyers are not conferred with the right to advertise and publicize their work, with the aim to solicit clients. In fact, there is a statutory prohibition. This is enunciated in Rule 36 of the Bar Council of India [“BCI”] Rules read with section 49 (1)(c) of the Advocates Act, 1961.1 The said rule [“Rule 36”] is vaguely worded and seems to impose a complete ban on the right to advertisement of lawyers. In 2008, the BCI rules underwent an amendment which leads us to the current position of law. As it currently reads, Rule 36 stipulates that lawyers can furnish only certain basic information, mainly their name, enrollment number, professional and academic qualifications and areas of practice in a website.2 Any additional information, other than that prescribed under Rule 36, will make the lawyer liable under section 35 of the Advocates Act, 1961 for professional misconduct.
Now, we are well aware that Covid-19 is unprecedented and consequently use of social media during the lockdown period has drastically increased. The entire workforce is working from home and virtual hearings in the Supreme Court is the new norm. With the amendment to Rule 36, it must be borne in mind that the relaxation to advertise on the internet is not absolute, but restrictive in nature. In the current digital age, where various social media platforms have surfaced, it is extremely crucial that lawyers understand the precise scope of Rule 36 and the amendment, in order to shield themselves from any potential case of professional misconduct.
This Article is divided into three parts. Firstly, I will deal with the underlying rationale and scope of Rule 36. In this regard, I shall also highlight the views expressed by the courts in India, the United States and United Kingdom. Secondly, I shall argue that legal services are marketable in nature, and therefore, advertising becomes a necessary facilitator. This becomes especially important in light of our experiences in a COVID-19 world, wherein corporates and clients are only looking out for some value for their money. Thirdly, I shall attempt to provide some plausible solutions or recommendations for our legal system to adopt, if and when the right is furnished to lawyers.
Necessity and Scope of Rule 36
The basic premise of the rule is that the legal profession is a noble profession and should not be tainted with unscrupulous jealousy and false advertising. The canons of ethics of the legal profession, as observed by Justice Krishna Iyer, do not promulgate the use of advertisement.3 A palatable justification is that it protects the interest of the illiterate population of the country and does not let unnecessary jealousy sweep into the profession. Courts across India have frowned upon solicitation by lawyers. The Supreme Court in A, an advocate Re4 noted that if a lawyer is soliciting briefs then he is unworthy of the profession. On the facts of the case, the court opined that addressing postcards with a lawyer's name and description of his work was an inappropriate and illegitimate way of advertisement and violates the ethical code of the legal profession.
It is of immediate significance that we start treating lawyers as service providers. Service is provided to the general public which in turn opens the gates for consumer protection. In order to benefit the consumers, the rule on advertising should be relaxed for the sole purpose of greater good. A quick comparative evaluation will manifest that countries like the United States and United Kingdom though, started with a blanket ban thereafter, switched sides and are now the flag bearers of the right to advertisement. The United States Supreme Court in the case of Bates v. State Bar of Arizona,5 held that advertisement for routine legal services would be helpful and consumers would benefit from the advertisements which covers information on accessibility and cost of legal procedures. The United Kingdom6 follows the same principles and addresses general concerns over false advertising and pitching fees at unrealistic low rates.
Legal Services are Marketable in Nature
The chief source of information for any consumer is reliant on (1) personal knowledge, (2) reputation and (3) advertisement to legitimately influence purchasing preferences.7 In the current context, personal knowledge cannot play a dominant role as interactions between client and lawyers are at an all-time low in India, due to the COVID-19 Lockdown.8 Moreover, the “reputation” factor will be influenced by hearsey and be dependent on word-to-mouth credibility. Both the above facets cannot be controlled or determined by the market or the lawyers. Restricting advertising inevitably results in an asymmetrical dissemination of information, wherein only the privilege and popular lawyers/law firms are able to reach their target audience. It must be borne in mind that hiring a lawyer and agreeing to fight a legal battle can be intimidating for the general public due to lack of knowledge on the subject matter.
When Amitabh Bachchan says “kuch meetha ho jaye” (Let us have something sweet) while advertising for a Cadbury dairy milk chocolate, it indeed raises the stock prices of Cadbury amongst its competitors- Amul and Nestle, who are selling at the same price with anime advertising. Herein, we can notice Mr.Bachchan, merely stating a fact and not misleading the audience by an overtly vivid advertising campaign. The mode of advertisement is used to grasp the consumer's interest. The same if applied judiciously can be beneficial for the legal profession as well. The world is encompassed with publicity/promotion/advertising, every field uses this mode - from a film release to Dr.Batra's clinic. Advertisements can be of varied forms through billboard to pamphlet distribution to social media campaigns.
The advantages of advertising are directly proportional to the consumer benefits. India has the maximum number of lawyers in the world who cater to 1.3 billion people. Yet, one can infer that due to strategic advertisements, people might believe that there are more options for buying a chocolate than hiring a lawyer, due to lack of awareness. While there are various facets to gaze while selecting a chocolate like, the price, quality, milk chocolate or dark chocolate etc. Similar considerations can be applied while hiring a lawyer as there are numerous fields and services. Today's world is, as Darwin had rightly put, encompassed with the theory of “survival of the fittest”. Therefore, when legal services are considered as a market commodity, it will help in relaxing the entry barriers faced by many young lawyers in this competitive field. It will also help in continuance of the principle, “consumer is king” as it caters to the needs of the second most populated country in the world.
It is a logical conclusion that if advertising is permitted, the usage would be more in the urban population than in the rural. Well-established lawyers and law firms may not use advertising. Therefore, the law should focus on informative advertising rather than comparative advertising. As indirect advertising has already surfaced in India, it is prudent to allow advertising with comprehensive checks and balances mechanisms. As little information is more dangerous than no information.
The Social Media Age
In the current Covid world, where work from home and zoom meetings are the so-called “new normal”. Lawyers across the globe are conducting free as well as paid webinars on various social media websites and talking about various aspects of law. It is not uncommon that while discussing the same with young lawyers and law students, they often tend to reveal the cases argued by them along with a few details of the case. It is really a slippery slope as in the guise of dispensing legal education via these webinars, they are indulging in advertising and it may amount to professional misconduct.
The use of social media is not sporadic in nature. According to a 2012 poll, nearly 85% of U.S. law firms use social media for marketing purposes.9 A necessary denouement is that the numbers have gone up as young lawyers enter the field. In the world where concepts of “your phone is listening to you” have surfaced, Big Data uses algorithms which is a useful tool for social media websites to target the desirable audiences. Social media provides a twenty-four hour platform for advertising. Big Data is used to procure data in such a way that advertisements or pop-ups will showcase in the accounts of the target audience. Another advantage is the whole procedure would be inexpensive compared to billboard or television advertisement.
Through judicial proconuments and bar council rules, it is quite clear that the standpoint towards advertising is stringent and little to no levy has been conferred to the lawyers. However, law firms and lawyers have bent the rules and are often discovered engaging in indirect advertising by way of sponsoring conferences to publish the awards on their website. For example, law firms across the country post information of winning awards on social media platforms like LinkedIn. Statements like awarded the “Best corporate practice in India” have to be constructed as advertising which influences many clients. Diwali gifts distribution to the clients and potential clients with merchandise with engraved logos of the firm is a common practice of law firms in India. In a recent court case, over the topic of sponsorship by law firms, the Income Tax Tribunal opined that sponsorship activities is a mode of advertisement. Sponsoring events was considered by the Tribunal as an act of enhancing the firm's value and violative of the rules.10 With the advent of social media, lawyers across the country use Facebook, Instagram, Linkedin and Twitter to provide a glimpse of their life and cases.
Now, I would like to dwell upon common social media activities and provide a recommendation for an effective use of social media if and when the rule is relaxed in India. The first activity in focus is a blog post. If individuals can seek clarifications on legal issues from a lawyer, in the comment section of the blog then that might automatically create a lawyer-client relationship, which ought to be bound by the rules of confidentiality.11 The individual might posit that the attorney has agreed to become his/her lawyer by replying to the comments. If the client-attorney relationship is inadvertently created, the lawyer will be bound by its role as an attorney or the same could be transformed to a malpractice suit. 12
In Virginia, an assistant public defender in her blog entries referred to the judge as “a clueless judge”.13These nuances must be thought out and checked before allowing an unregulated use of advertising.
As a safety net, attorneys must refrain from addressing fact-based questions and focus on a general legal application of the law. Lawyers must also be mindful that the client should approach them and they should not solicit or pressurize the clients by messaging or commenting on the posts to hire them for services. Advertisement via blog posts will play a great role in changing the dynamics of client-lawyer confidentiality agreement. The lawyer cannot reveal the facts of the case unless the client consents. Any comments on the case should not harm the relationship of clients with the counterparty or others. In order to seek public attention, lawyers may try to publish their tweets or posts with client information which could be unethical in nature. Social media platforms must not be misused by lawyers while communicating with prospective clients.
A disclaimer should be provided stating that the above post is a medium of advertisement and not providing free legal advice to the viewers.14 The number of characters to a social media post is often limited in nature. For example, Twitter limits it to 280 characters. This puts a limitation on including disclaimers on the post. So, the inference would entail that if the lawyers cannot limit the advertisement within the number of characters then lawyers must refrain from using the technology. For lawyers who do not use social media could be pressurized to use the platform in order to limit their risk of survival in the technology driven world. The component of geographical diversities must also be recognized while advertising. Advertisements on social media or television must indicate the location of the lawyers as the birth of a suit happens in a trial court and Civil Procedure Code governs the jurisdiction of the suit. It is very crucial that the clients and lawyers reside in the same geographical area.
Vlogging is another activity practiced by many young lawyers where they provide a glimpse of their lives. Vlogging must be conducted with caution as it can lead to confidentiality breaches with the clients. Precaution is necessary and a higher level of scrutiny is to be imposed while dealing with the same. If not followed, the immediate aftermath would be the elimination of “huckster shyster” advertising. The issue with social media is it becomes difficult to regulate. If the BCI provides a solution and authorizes the right to advertisement, the ramification of that might be gross misuse. Lawyers cannot afford to be so cavalier.15 The law should make a difference between advertisements which are mere invitation to offer and advertisements which encompass further information about the practice areas and laws.
In the age of social media, especially in Linkedin there is a tab for experiences and skills, these are often a part of creating a professional profile of the lawyers and are accessible by everyone. Lawyers must refrain from transmitting misleading, false or unscrupulous information about their experiences or skills. The New York State Bar Association, clarified that the credentials posted by lawyers in the Linkedin profile should be of the same nature as posted on the firm's website.16 Lawyers must refrain from using comparative sentences which cannot be factually substantiated.17 In order to regulate the use, it would be strongly recommended that Linkedin provides a verification status (a common tool used by other social media websites like Instagram and Twitter), which with the approval of the BCI will make the account verified and thus, will be helpful for people as they will be looking at genuine accounts with true and verified information. States could formulate a committee and provide the verification/certification to the lawyers who abide by the guidelines issued by BCI. Once approved by the committee the post and additional information can be uploaded by the lawyers. Another flipside to the committee verification will be the time lapsed in between.18 Delay in approval can also become a source of deterrence for lawyers to use social media platforms. It is indeed a tricky path to traverse.
Market will play as a perfect leveler when advertisements are permitted for the variety of available legal services. Advertising will modify the Cab-Rank rule,19 the client would become more aware of the credentials of the lawyer and can approach a lawyer who would do justice to the case, than a lawyer who is bound by the cab-rank rule. Accordingly, the introduction of advertising will be beneficial for both the lawyers and the client. The concept of “inforsting” can be introduced, wherein the lawyers are allowed to archive all their articles, case laws in their website which will be commonly accessible to individuals.20 The Bar Council of England introduced a similar concept called “Barmark”21 which carries detailed curriculum vitae, advertisements, practice areas of practicing barristers.22
While one determines whether to allow the right to advertisement, it is prudent to check the statistics of countries which have allowed the right and public responses to the same. The surveys have found that on an average only one out of ten people who hire a lawyer, find that lawyer through advertising.23 Whereas another survey revealed that young trial court lawyers have spent a whopping 226 million dollars on advertising in 2018.24 A layman could infer that the costs hugely outweigh the benefits through a skyrocketing margin.
In our fast-moving world, there is a massive need for legal representation, at all levels of the society. The right to advertisement if and when conferred to the lawyers must not be absolute in nature and be mindful of the precarious nature of the social media platform. Young lawyers must be trained in law schools through clinical experiments about the correct usage of social media and how the platform must not be used to violate the esteemed professional ethics code.25 The relationship with clients must be ensured and respected and it is vital that the decorum of the legal profession be upheld.
1 36. 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. His sign-board or name-plate should be of a reasonable size. The sign-board or name-plate or stationery should not indicate that he is or has been President or Member of a Bar Council or of any Association or that he has been associated with any person or organization or with any particular cause or matter or that he specializes in any particular type of worker or that he has been a Judge or an Advocate General.
2 That this Rule will not stand in the way of advocates furnishing website information as prescribed in the Schedule under intimation to and as approved by the Bar Council of India. Any additional other input in the particulars than approved by the Bar Council of India will be deemed to be a violation of Rule 36 and such advocates are liable to proceed with misconduct under Section 35 of the Advocates Act, 1961.
3 Bar Council of Maharashtra v. M.V. Dabholkar, (1976) AIR SC 242 (India).
4 A, an advocate, Re, (1962) A.I.R. S.C. 1337(India).
5 Bates v. State Bar of Arizona, 433 U.S. 350 (1977)
6 Solicitors' Publicity Code, 1990
7 Shivam Gomber, Right to Advertise for Lawyers, Udgam Vigyati The Origin of Knowledge, Vol. 3 (May 2016, ISSN 2455-2488).
8 68% of subjects of a study conducted by NLUD had used a lawyer only once or twice in their lifetimes.
9 John G. Browning, Facebook, Twitter, and LinkedIn—Oh My! The ABA Ethics 20/20 Commission and Evolving Ethical Issues in the Use of Social Media, 40 N. KY. L. REV. 255, 256 (2013).
10 Luthra & Luthra Law Offices v. JCIT, (2018) Income tax Tribunal (India).
11 Evan R. Shirley, Lawyers, Social Networking, and How to Avoid Falling Into Ethical Traps, 14 HAW. B.J. 123, 127 (2011).
12 Merri A. Baldwin, What's a Little Tweet Among “Friends”: Ethical and Liability Risks Posed by Lawyers' Use of Social Media, ST037 A.L.I.-A.B.A. 443, 445–46 (2011).
13 Peshek, No. 6201779, Comm. No. 09 CH 89 (Aug. 25, 2009).
14 Peter A. Joy & Kevin C. McMunigal, Client or Prospective Client: What's the Difference?, Wash. U. Leg. Stud. Res. Paper Series,(2014).
15 James M. McCauley, Blogging and Social Networking for Lawyers: Ethical Pitfalls, Ethics Watch, Ethics Watch, (2010), https://www.vsb.org/docs/valawyermagazine/vl0210_ethics.pdf.
16 N.Y. State Bar Assoc., Op. 972 (2013)
17 Warren E. Burger, The Decline of Professionalism, 63, Fordham Law Review, (1995).
18 Comisky & Taylor,Steven Seidenberg, Seduced, For Lawyers, the Appeal of Social Media is Obvious. It's Also Dangerous, A.B.A. J.(2011).
19 The “Cab Rank Rule” finds mention in the Bar Council of India Rules. The inherent logic behind providing representation to every person is based on the standard rule of thumb that every person is presumed innocent until proven guilty. If a person is not provided legal representation and is not allowed to present his case in the court of law, then his right to fair hearing is impeded and the entire judicial system suffers as a result.
20 M.L. Sarin & Harpreet Giani, Prohibition of Advertisement in the Legal Services Sector, India Law Journal 1(1), http://www.indialawjournal.org/archives/volume1/issue_1/legal_articles_sarin.html.
21 The Bar Council, https://www.barcouncil.org.uk/.
22 M.L. Sarin & Harpreet Giani, Prohibition of Advertisement in the Legal Services Sector, India Law Journal 1(1), http://www.indialawjournal.org/archives/volume1/issue_1/legal_articles_sarin.html.
23 ABA Comm'n on Advertising, Yellow Pages Lawyer Advertising: An Analysis of Effective Elements 13 (1992) (citing ABA Consortium on Legal Services and the Public, Two Nationwide Surveys: 1989 Pilot Assessment of the Unmet Legal Needs of the Poor and of the Public Generally, F. Magid, Attitudes and Opinions of Florida Adults Toward Direct Mail Advertising by Attorneys (1987); Report of Findings: Nevada Lawyers' Advertising Survey, Litigation Technologies (Feb. 1990)
24 Study: $226 Million Spent by Trial Lawyers on Advertising in Quarter 3 of 2018, press release, American Tort Reform Association, (2019), http://www.atra.org/2019/01/10/study-226-million-spent-trial-lawyers-advertising-quarter-3-2018.
25 Elizabeth Colvin, The Dangers of Using Social Media in the Legal Profession: An Ethical Examination in Professional Responsibility, 92 University of Detroit Mercy Law Review, (2012).
Originally published 23 July, 2020
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