Opening the market, silencing the profession?

India is inching toward liberalising its legal services sector. The Bar Council of India (BCI) has already formed the Cyril Shroff committee to examine how foreign lawyers and law firms might be permitted to practise here.

However, almost every discussion of liberalisation stops at whether overseas firms will swamp domestic ones. Left unexplored is the mirror image: are Indian lawyers well placed to compete for foreign business once the gates open? The answer, for now, is no, mainly because an antiquated ban on legal advertising keeps them invisible in the global marketplace.

India, like the United Kingdom until the 1980s, still treats the profession as a calling rather than a trade. Rule 36 of the BCI Rules, rooted in colonial-era ideals of “honour”, prohibits direct or indirect solicitation. A 2008 amendment grudgingly allowed advocates to publish bare-bones websites that contain the name, contact, enrolment details and qualifications of the lawyers, provided they swear the information is accurate. Anything more, from showcasing past matters to posting thought-leadership articles, risks disciplinary action.

Compare this to the United States, where Bates v. Arizona (1977) extended First Amendment protection to lawyer advertising, provided it is truthful and not misleading. Alternatively, consider the UK, where the Solicitors Regulation Authority permits outreach that meets standards of honesty and client protection. Both jurisdictions recognise that informed advertising reduces information asymmetry, stimulates price and service competition and helps smaller practices reach clients who might otherwise default to entrenched incumbents.

Foreign clients hire Indian counsel for cross-border mergers and acquisitions (M&A), technology, infrastructure and arbitration work. To choose effectively, they must be able to compare firms on expertise, past deals and thought leadership—precisely the kind of information our rules suppress. The present regime, therefore, favours legacy outfits whose reputations are already well-known, leaving competent but younger practices stranded outside global sightlines. Liberalisation without advertising reform would thus bake oligopoly into the very market we claim to be opening.

The impact is particularly harsh on first-generation practitioners who lack family names, alum networks or international offices. Denied the primary tool of visibility, they rely on informal referrals and directory listings -methods ill-suited to a digitised, borderless economy. Ironically, the restriction that purports to uphold dignity entrenches hierarchy and inhibits the very competition liberalisation seeks.

Modern Indian lawyers do far more than argue cases: they advise on policy, lecture at foreign universities, contribute op-eds and publish specialist newsletters. These activities are not tawdry solicitations; they are knowledge products that signal competence to prospective clients. A blockchain start-up in Singapore selecting Indian counsel for a token-issuance will naturally gravitate toward advocates who write cogently on India’s evolving crypto regime. Rule 36 forces such advocates into silence, eroding both their competitive edge and the overall visibility of Indian legal talent abroad.

Reform need not mean a free-for-all. Financial market regulators offer a blueprint. The Securities and Exchange Board of India (SEBI) has adopted a graduated compliance framework for research analysts and investment advisers: factual disclosures are permitted, promises of guaranteed returns are prohibited and misleading statements are subject to enforcement action. A similar three-tier approach could govern legal advertising: practising advocates and firms may be allowed to list qualifications, core practice areas, representative matters, publications and fee structures, with standard disclaimers, a prohibition on unverifiable claims and random audits. Digital platforms hosting legal content should display the credentials of contributors and enable users to flag inaccuracies.

Such a framework would promote transparency while preserving consumer protection. It would also align India with jurisdictions that already strike a balance between professional ethics and market reality.

Allowing responsible advertising would unlock several gains. Clearer information enables individuals and businesses - whether domestic or foreign - to choose counsel that suits their needs and budgets. Firms would differentiate on expertise, responsiveness and cost, driving service innovation. Consistent, verifiable public profiles would reassure overseas clients that Indian lawyers operate under familiar transparency norms. Most importantly, young practitioners could build reputations through demonstrable knowledge rather than inherited prestige.

Critics argue that opening the door to promotion will commodify the profession, rendering it less valuable. However, silence has never guaranteed integrity; it has merely hidden both excellence and malpractice from public view. A well-regulated market, by contrast, brings conduct into the light, making it easier to police misconduct and reward quality.

India cannot court foreign firms while muzzling its own. Liberalisation that stops at entry permission but denies domestic lawyers the tools to compete will create a two-tier bar: a handful of internationally visible elites and a vast, unseen majority. Updating Rule 36 is, therefore, not an indulgence, but a prerequisite for a level playing field.

Regulation, not prohibition, should guide the profession’s next chapter on advertising. By permitting transparent, factual advertising within clear ethical guardrails, the regulators can foster genuine competition, broaden client choice and project Indian legal expertise onto the world stage. For Indian lawyers to lead, they must be allowed to speak.

Nandita Goyal is a practicing advocate based out of Surat.

Debargha Roy is a practising advocate and policy researcher based out of New Delhi.

Views and opinions expressed are personal.