The article titled When Silence is Compliance: The Real Cost of Rule 36 on India’s Legal Profession published by Bar & Bench on April 7, 2025 critiques Rule 36 of the Bar Council of India (BCI) Rules, suggesting that it has become an oppressive barrier to progress in the legal profession.

However, this critique misconstrues both the origin and enduring purpose of Rule 36.

Rule 36 is derived from Section 49(1)(c) of the Advocates Act, 1961, empowering the BCI to regulate professional conduct. The Rule prohibits lawyers from soliciting work or advertising through any means, including circulars, touts, public interviews and even media publicity of court victories or images. The purpose is to preserve the dignity and ethical sanctity of the profession, not to stifle thought leadership.

This ethical framework treats advocacy not as a commercial pursuit, but as a public duty. Lawyers are officers of the court, not service providers chasing clients based on digital visibility. Hence, Rule 36 acts as a necessary bulwark against the commodification of legal profession.

Contrary to critics, Rule 36 does not ban all forms of public engagement. Lawyers can and do publish articles, engage in debates, give interviews, and maintain websites - so long as these are not vehicles for direct or indirect client solicitation. The 2008 amendment to Rule 36 by the BCI is particularly noteworthy. It allows advocates to publish essential information on personal or firm websites: name, qualifications, areas of practice and contact details. This shows the BCI’s willingness to embrace digital communication without compromising on professional ethics.

A significant concern arises with platforms like Vakil Vetted, which, despite claiming compliance, arguably operate in ways that constitute indirect solicitation. These platforms function as algorithmic matchmakers - filtering lawyers by area, availability, or other backend profiling. Even if such curation is not publicly visible, it still amounts to referral solicitation in substance, violating Rule 36.

In PN Vignesh v. The Chairman and Members of the Bar Council, the Madras High Court dealt with online legal listings on JustDial, Quikr and Sulekha. These platforms listed lawyers under specific categories, highlighted rankings and allowed search-based filtering. The Court ruled that such practices violate Rule 36, as they encourage competitive advertisement and commodify the profession.

The Court emphasised that any structure designed to channel clients toward particular lawyers - even algorithmically - is a form of indirect solicitation. The ruling upheld that legal practice cannot be treated as a business. Rule 36 and Rule 37 of the BCI Rules were reaffirmed as valid restrictions against commercial behaviour, including through intermediaries.

The BCI was instructed to issue circulars to State Bar Councils to initiate disciplinary action against advocates engaging in such advertising. It was also directed to file complaints against the online platforms for aiding and abetting unlawful solicitation. The platforms involved were directed to remove all content violating the Bar Council Rules within four weeks.

The case reinforced the view that ethical obligations apply equally in digital spaces. A platform’s backend design - regardless of public appearance - must comply with the BCI Rules.

A critical error in pro-digital arguments is the artificial separation between “structuring” and “soliciting.” If a platform's structure facilitates client-to-lawyer matchmaking - even through non-public algorithms - it still falls within the mischief of Rule 36. Structured solicitation is not exempt just because it appears neutral or passive.

The article attempts to justify reform by comparing legal advocacy with professions like medicine, accountancy and consulting. But these comparisons collapse under scrutiny:

• Medicine and chartered accountancy: While doctors and accountants may disclose factual information, they are barred from exaggerated or promotional advertising. The  Institute of Chartered Accountants (ICAI) strictly prohibits member advertising. The National Medical Commission also restricts testimonials and outcome-based claims.

• Management consulting: Marketing liberties in this field are irrelevant because it lacks statutory ethical codes and is not constitutionally tied to justice.

• Fundamental differences in law practice: Legal practice is a constitutionally distinct, public-facing function. Lawyers influence liberty, property and justice itself. They are not vendors, and clients are not mere consumers.

Unlike in jurisdictions such as the UK or US, where the legal profession is treated as consumer commodities, India’s legal profession is enshrined as a public function. Under the Indian Constitution, Entries 77 and 78 of the Union List establish that legal practice is governed by the Advocates Act, making it a regulated, ethical duty embedded in the justice system.

Attempts to import liberal legal marketing norms from the West disregard this foundational difference. In India, lawyers cannot be seen as commercial actors, as that would reduce justice to a transactional affair, undermining public trust and the integrity of the courts.

The Supreme Court of India has repeatedly emphasised the unique role of lawyers. In Bar of Indian Lawyers v. DK Gandhi PS National Institute of Communicable Diseases, the Court rejected the idea that legal clients are consumers under the Consumer Protection Act. The relationship is fiduciary, not commercial. The legal profession is unlike any other profession - it serves both individual clients and the public good. To equate lawyers with those who render private services is to erode their constitutional role.

One of the article’s core grievances is that Rule 36 stifles knowledge-sharing and discourages lawyers from posting educational content. This is a flawed reading. Lawyers are free to engage in legal commentary, write blogs, contribute to journals, or even post on social media - as long as such activities are not disguised attempts to attract clients.

The distinction lies in intent and outcome. If content is purely pedagogical, it is not a breach. If the same content is used to drive business or showcase individual services, it crosses the ethical line. For instance, an article analysing arbitration law is acceptable. However, appending a contact link for legal practices turns it into a solicitation device.

The core ethos behind Rule 36 is that law is not a marketplace. Legal practice is a sacred trust reposed in advocates by the Constitution, the judiciary and society. By regulating advertising and client solicitation, Rule 36 maintains the impartiality, dignity and independence of advocates. It ensures that lawyers serve justice, not market trends.

Efforts to weaken or repeal Rule 36 through digital marketing or matchmaking platforms, however well-intentioned, risk turning legal advocacy into a numbers game. Visibility, SEO (Search Engine Optimisation), ratings and testimonials are the hallmarks of commercial entities, not officers of the court.

Rule 36 is not an anachronism. It is a dynamic ethical tool designed to protect the character of legal practice in India. Digital innovation in the profession is welcome, but only within ethical bounds. Technology must support, not subvert the profession’s duty to uphold justice.

The critique offered by the Bar & Bench article fails to grasp the constitutional and moral foundations of Rule 36. It equates regulated ethics with repression and commercial freedom with progress. In doing so, it overlooks the larger purpose of legal advocacy: to serve society, defend rights and act as custodians of the rule of law.

Prof (Dr) Shaiwal Satyarthi is a Professor of Law, Faculty of Law, University of Delhi.

Disclaimer: The opinions expressed in this article are those of the author(s). The opinions presented do not necessarily reflect the views of Bar & Bench.