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Legal ethics: Advertising in an electronic age

Advertising by lawyers has long been a tricky issue in Canada. Once, it couldn’t be done at all — stopped by law society rules. Over the past few years, restrictions have been eased, bit by bit, province by province. Recently, the Competition Bureau of Canada suggested the situation still isn’t good enough and that almost any rules limiting advertising by professionals go beyond legitimate consumer protection. (More on the Competition Bureau later.)

We’re no longer just talking about that big sign on a building by the airport that has a law firm’s name in huge, illuminated red letters; or a personal-injury lawyer’s advertisement on the side of a bus; or the logo-included message placed by a Bay Street firm in the financial pages of a national newspaper proclaiming the number of mega-deals it did in 2007. We now live in a wonderful new electronic age. Welcome to advertising by lawyers on Google.


Here’s how Google advertising works. Pick a key word or phrase likely to be searched and that relates in some compelling way to the legal services you provide. Create an advertisement for those services that includes a link to your web site. Arrange with Google to have your advertisement appear in the shaded “sponsored links” section next to the search results that pop up when your chosen key words are searched. (It’s easy to do all of this online, at www.adwords.google.com) Your hope is that potential clients will be directed in this way to your practice.


How do you pay for Google advertising? This is the interesting part. You pay every time someone clicks on your sponsored link. How much do you pay? The price per click is set by an auction of search terms. When I checked the other day (on www.cwire.org), I saw that if you want your advertisement to appear next to the search term “personal injury lawyer Michigan,” it will cost you US$65.85 every time someone clicks on your link. It’s US$47.74 for “automobile accident lawyers” and US$44.52 for “truck accident lawyers.”


A cursory survey of search terms and sponsored links shows that Canadian lawyers are starting to play this game. The search terms “province of Ontario personal injury lawyer” and “brain injury Canada” each produces one Canadian law firm. The term “immigration lawyers Canada” generates quite a long Canadian list, although some of the advertisers look to be consultants rather than law firms.


Whether or not a click produces business for the advertiser doesn’t matter; the advertiser pays anyway. This creates opportunity for the cyberspace equivalent of sending pizzas at midnight to the girlfriend who dumped you. Just spend the day clicking on the link of a law firm you don’t like and stick it with a big bill for nothing.
Adam Liptak, writing in The New York Times (“Competing for Clients, and Paying by the Click,” Oct. 15, 2007), quotes various experts who believe that sponsored-link advertising results from a baffling economic anomaly: that lawyers tend to charge the same amount as each other for their services. Since lawyers don’t compete on price, suggest these experts, they compete in other ways, like bidding for placement on Google. Liptak also notes that Google advertising is narrowly focused. There is a big difference between putting an advertisement in a general circulation newspaper and putting one next to the results of the search term “truck accident lawyer” or “immigration lawyer Canada.” (Liptak notes that you can place a sponsored link next to “Britney Spears nude” for a mere 21 cents a click. It is unclear what legal services are relevant to this search term.)


Which brings me back to the Competition Bureau of Canada. Last December, the bureau released a study urging self-regulated professions to re-examine their rules — including those limiting advertising — to ensure those rules serve the public good and do not go too far in restricting competition. In a speech to the Economic Club of Toronto, competition commissioner Sheridan Scott said: “Surely it isn’t too impertinent to wonder whether all the rules are necessary, whether any of them are informed more by self-interest than by public interest, and whether changing or dropping some of these rules mightn’t lead to wins both for the overall economy and for consumers individually.” The bureau report comments that some restrictions on advertising by lawyers “go beyond simply preventing false or misleading advertising and, as a result, raise competition concerns in light of the numerous benefits advertising brings to consumers.”


The Competition Bureau report gives a variety of examples of current restrictions on lawyer advertising. In Ontario, lawyers may not use words or expressions such as “from . . . ,” “minimum,” or “ . . . and up” when referring to price. In Nova Scotia, an advertisement may not use words like “simple” or “complicated.”

Newfoundland and Quebec do not allow statements of gratitude in lawyers’ advertisements. Most law societies do not allow a lawyer to claim to be a specialist or expert in a particular field unless he has specialized certification. (Only Ontario has a system of certification.) Most of the large provinces do not allow lawyers, in their advertisements, to compare their fees or the quality of their services to those of other lawyers.


The bureau reports comments, “When consumers cannot compare the prices for legal services, there is little or no incentive for lawyers to compete on price, thereby raising the costs to consumers.”


It may be a new electronic age, with links on Google replacing billboards on highways, but the underlying issues, ethical and economic, remain the same. Why artificially limit advertising, particularly with limitations that help stifle desirable price competition? In particular, why limit comparative advertising about price and quality of services? Click away on sponsored links all you like; the old-fashioned problems remain.

Philip Slayton has been dean of a law school and senior partner of a major Canadian law firm. Visit him online at
www.philipslayton.com


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