Duty to Colleagues, and the Rule Against Advertising: Rules 36 to 39

The leading case on soliciting is Bar Council of Maharashtra v. M.V. Dabholkar, AIR 1976 SC 242, where advocates practising in the criminal courts stationed themselves at the entrance to the Magistrates' Courts, watched for litigants arriving, and rushed at them in a scrimmage to snatch briefs.

The 2008 proviso and the Schedule

"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 violation of Rule 36 and such advocates are liable to be proceeded with misconduct under Section 35 of the Advocates Act, 1961."

This was added by Resolution No. 50/2008 dated 24 March 2008, and it is the single most practically important change to this Chapter in a student's lifetime.

Three conditions, all of which must be met.

1. The information must be as prescribed in the Schedule.
2. It must be under intimation to the Bar Council of India.
3. It must be as approved by the Bar Council of India.

And the sanction is spelt out in the proviso itself. Any additional other input beyond what the Bar Council has approved is deemed to be a violation of rule 36, and the advocate is liable to be proceeded against for misconduct under section 35. So the proviso is permissive and self-policing at the same time.

The Schedule permits:

1. Name
2. Address, telephone numbers, e-mail id
3. (a) Enrolment number; (b) date of enrolment; (c) name of the State Bar Council where originally enrolled; (d) name of the State Bar Council on whose roll the name currently stands; (e) name of the Bar Association of which the advocate is a member
4. Professional and academic qualifications
5. Areas of practice, for example civil, criminal, and so on

Read item 5 against part three of rule 36. The rule says the sign-board, name-plate or stationery must not indicate that he specialises in any particular type of work. The Schedule allows a website to state areas of practice. The distinction is between stating what work one does and claiming to be a specialist in it, and it is exactly the sort of line a problem question tests.

Rule 37: lending one's name

"An advocate shall not permit his professional services or his name to be used in aid of, or to make possible, the unauthorised practice of law by any law agency."

The mischief is an unqualified agency doing legal work under the cover of an advocate's name. It joins section 33, which bars practice by anyone not enrolled, and section 45, which punishes it with imprisonment up to six months. Rule 37 catches the advocate who makes it possible.

Rule 38: the fee floor

"An advocate shall not accept a fee less than the fee taxable under rules when the client is able to pay the same."

Taught with the fee rules in chapter [Duty to the Client III: Fees, and What an Advocate May Not Charge]. It sits in Section IV because undercutting is competition with colleagues.

Rule 39: appearing where another advocate is already engaged

"An advocate shall not enter appearance in any case in which there is already a vakalat or memo of appearance filed by an advocate engaged for a party except with his consent; in case such consent is not produced he shall apply to the Court stating reasons why the said consent could not be produced and he shall appear only after obtaining the permission of the Court."

The rule sets out a procedure, and a student should be able to state both branches.

Branch one, with consent. The new advocate produces the consent of the advocate already on record and enters appearance.

Branch two, without consent. He applies to the Court, states the reasons why the consent could not be produced, and appears only after obtaining the permission of the Court.

Why the rule exists. A client is free to change advocates; the rule does not stop him. What it stops is a change happening behind the back of the advocate on record, who may have fees outstanding, may hold the papers, and is answerable to the court for the conduct of the case. The second branch means the client is never trapped: if the first advocate unreasonably refuses consent, the court decides.

Note the interaction with the lien question. Since R.D. Saxena v. Balram Prasad Sharma, (2000) 7 SCC 264, holds that an advocate has no lien over the client's papers, the outgoing advocate cannot hold the file hostage while consent is negotiated. Rule 39 governs the appearance; R.D. Saxena governs the file.

A worked example

Ashish has been practising for eight years and wants to build his practice. Six proposals.

A hoarding near the District Court reading "Ashish Rao, Expert in Cheque Bounce Cases". Two breaches of rule 36: it is advertising, and it indicates that he specialises in a particular type of work.

A brass name-plate outside his office giving his name and "Advocate". Permitted. The rule requires only that the sign-board or name-plate be of a reasonable size.

Adding "Former Member, Bar Council of Maharashtra and Goa" to that plate. Forbidden. Rule 36 says the sign-board, name-plate or stationery should not indicate that he is or has been President or Member of a Bar Council or of any Association.

A website giving his name, address, e-mail, enrolment number and date, the State Bar Council on whose roll he stands, his Bar Association, his degrees, and "Areas of practice: civil, criminal". Permitted, if it is under intimation to and as approved by the Bar Council of India. Every item is in the Schedule.

Adding to that website a page of client testimonials and a list of his biggest wins. Forbidden. That is additional other input beyond what the Bar Council has approved, which the proviso deems a violation of rule 36 and makes him liable to be proceeded against under section 35.

Paying a court clerk to send litigants to him. Rule 36 names touts among the forbidden means, and the clerk is a tout within section 45A(7)(d) of the Advocates Act. Ashish faces a disciplinary proceeding; the clerk faces listing and exclusion.

A client arrives whose case is already conducted by another advocate who has filed a vakalatnama. Rule 39: Ashish needs that advocate's consent; failing which he must apply to the Court, state why the consent could not be produced, and appear only with the Court's permission.

What beginners get wrong

Rule 36 does not ban a name-plate. It requires a reasonable size and limits what may appear on it.

Claiming a specialisation is forbidden on a sign-board, name-plate or stationery, even though it is true.

The website proviso is not a general permission to have a website. It is permission to publish the Schedule's items, on intimation to and with the approval of the Bar Council of India.

Going beyond the Schedule is deemed a violation. The proviso says so, and names section 35.

Rule 39 does not prevent a client changing advocates. It requires consent or the court's permission.

Rule 38 is a floor, not a ceiling.

Quick revision

• Rule 36: no soliciting work or advertising, directly or indirectly, by circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing or inspiring newspaper comments, or producing photographs for publication in connection with his cases.
• Sign-board or name-plate: reasonable size; must not indicate that he is or has been President or Member of a Bar Council or Association, that he was associated with any person, organisation, cause or matter, that he specialises, or that he was a Judge or Advocate General.
• Proviso added by Resolution No. 50/2008 dated 24 March 2008: a website is permitted with the information prescribed in the Schedule, under intimation to and as approved by the Bar Council of India. Anything more is deemed a violation of rule 36 and attracts section 35.
• Schedule: name; address, telephone, e-mail; enrolment number, date of enrolment, State Bar Council originally enrolled with, State Bar Council currently on, Bar Association; professional and academic qualifications; areas of practice.
• Rule 37: no permitting his services or name to be used in aid of the unauthorised practice of law by any law agency.
• Rule 38: no fee less than the taxed fee where the client can pay.
• Rule 39: no entering appearance where a vakalat or memo of appearance is already filed, except with that advocate's consent; failing consent, apply to the Court with reasons and appear only with its permission.
• Dabholkar is the leading case on soliciting; section 45A of the Act is the other end of the touting problem.

Test yourself

1. List the means of soliciting or advertising that rule 36 names. Circulars, advertisements, touts, personal communications, interviews not warranted by personal relations, furnishing or inspiring newspaper comments, and producing his photographs to be published in connection with cases in which he has been engaged or concerned.

2. What may an advocate's name-plate not say? That he is or has been President or Member of a Bar Council or of any Association; that he has been associated with any person or organisation, or with any particular cause or matter; that he specialises in any particular type of work; or that he has been a Judge or an Advocate General.

3. On what three conditions may an advocate keep a website? That the information is as prescribed in the Schedule to rule 36, that it is furnished under intimation to the Bar Council of India, and that it is as approved by the Bar Council of India.

4. What happens if a website carries more than the Schedule allows? The proviso provides that any additional other input beyond what the Bar Council of India has approved is deemed to be a violation of rule 36, and the advocate is liable to be proceeded against for misconduct under section 35 of the Advocates Act.

5. State the procedure in rule 39 where consent cannot be obtained. The advocate must apply to the Court stating the reasons why the consent of the advocate already on record could not be produced, and may appear only after obtaining the permission of the Court.

6. A website states "Areas of practice: civil, criminal". A name-plate states "Specialist in civil matters". Are both lawful? The website entry is within item 5 of the Schedule and is lawful if intimated to and approved by the Bar Council of India. The name-plate is not: rule 36 provides that a sign-board, name-plate or stationery shall not indicate that the advocate specialises in any particular type of work.