Madras High Court: In a writ petition filed as a “Pro Bono Publico” in the interest of legal profession, for directing the Chairman and Members of the Bar Council of India and Bar Council of Tamil Nadu and Puducherry, to take appropriate action against quikr.in, sulekha.com, justdial.com and any other service provider, restraining them from carrying on the business of providing legal services on their web portal or Applications, the division bench of S.M. Subramaniam* and C. Kumarappan, JJ. has issued the following directions:
The BCI was directed to issue Circulars/Instructions/Guidelines to the State Bar Councils within a period of 4 weeks from the date of receipt of a copy of this order, to initiate disciplinary proceedings for misconduct against the Advocates 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 case where he is engaged or concerned.
The BCI was directed to register complaints before the competent authorities under the relevant Act against online service providers/intermediaries 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 as laid down under Rule 36 of the Bar Council of India Rules.
The BCI was directed to initiate all appropriate actions to remove the advertisements published by lawyers through online service providers/intermediaries and to issue advises to the intermediaries not to publish such advertisements barred under Rule 36 of BCI Rules. The Bar Council of India was directed to secure the assistance of Government of India to prevent such unlawful acts by online service providers.
The websites were directed to remove all the contents which are in violation of Rule 36 of BCI Rules within a period of 4 weeks from the date of receipt of a copy of the Order.
Background:
Certain professional misconducts are alleged in the writ petition against the “Online Service Providers”, as they are not only providing various day to day needs and requirements of general public, but also offering lawyer services. Online lawyer services are prohibited under the Bar Council of India Rules and amounts to misconduct under Section 35 of the Advocates Act, 1961. Since no action has been taken by the Chairman and Members of the Bar Council of India and Bar Council of Tamil Nadu and Puducherry, the petitioner initiated the present writ petition.
Analysis and Decision:
The Court was agonised that some of the legal professionals today are trying to adopt a business model. The Court remarked that 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 society. Though a service fee is paid to a lawyer, it is paid out of respect for their time and knowledge.
The Court rejected the view that with the growing need for professional services, a business model can help in its growth further, and said that the tools employed in the profession can be upgraded or changed based on changing circumstances. But the spirit and character which is the Basic Structure of this profession can never be altered.
The Court remarked that law is not about the survival of the fittest, but it is more about the survival of the distressed.
The Court said that the fundamental duty of a lawyer is to uphold the law whilst fighting for his client’s rights. It is not just about securing a favourable order for the client but more about fighting for Justice. Thus, the legal profession stands apart in both spirit and character from the rest. The object of any business is profit but the sole object of the Legal profession is Justice. Truth and Justice can never be traded.
While providing reasons behind no-advertising policy for lawyers, the Court said 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.
The Court said that it is disheartening to learn that a few websites are selling legal services of lawyers for a fixed price. This is forthright against the Bar Council of India Rules and the websites have also independently provided rating services of lawyers without any basis or authority and the lawyers by enlisting themselves in such websites have brought down the nobility and dignity of the profession.
The Court said that these sites have degraded the profession by indulging in selling the legal services for a price. These advertisements interfere with the profession’s ethics and misguide the public. There is a high chance of people getting misguided through these advertisements and it will also serve as a platform for miscreants.
Further, the Court said that such advertisement of lawyers without any regulation can spread misinformation among the public, as these websites hold no authority to provide legal services by enlisting lawyers in their websites nor can they advertise few select lawyers by receiving a commission from them.
The Court also said that in professions such as law, it is difficult to establish a level playing field mainly due to economic factors. Thus, 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.
After taking note of Rule 36 of the Bar Council of India Rules, the Court noted that it prohibits advocates from advertising or soliciting work 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 case where he is engaged or concerned. The only Proviso allowed for advocates is that they can furnish website information as prescribed in the Schedule under intimation to and as approved by Bar Council of India. Hence publication of advertisements as mentioned in Rule 36 by advocates shall be construed as misconduct under the Advocates Act and disciplinary action under the relevant Act and Rules can follow.
Further, taking note of Rule 37 of the Bar Council of India Rules, the Court noted that the online intermediaries engaged in the act of providing a platform for lawyers to publish their information to connect with litigants and the public and to solicit work from them is clearly against principles of professional conduct as mentioned under BCI Rules.
The Court said that in the present case, the lawyers are registering their names by paying charges with the online website companies. Such companies are aiding and inducing to solicit works from the litigants and connecting them with the lawyers. This is clearly an action of “tout” as mentioned in Rule 36, which specifically prohibits touting. Therefore, the Court said that the online websites/intermediaries are estopped from taking shelter under Section 79 of the Information Technology Act.
The matter will next be taken up on 20-08-2024 for reporting compliance.
[P.N. Vignesh v Chairman and Members of the Bar Council, W.P.No.31281 of 2019, decided on 03-07-2024]
*Order by: Justice S.M. Subramaniam
Advocates who appeared in this case :
For Petitioner: Advocate Mohammed Fayaz Ali
For Respondents: Advocate S.R. Raghunathan, Advocate E.K. Kumaresan, Senior Counsel Srinath Sridevan
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