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Total ad ban a no go

The Law Society of Upper Canada is looking at making changes to the rules governing lawyer advertising. It has stirred up a hornet’s nest.

While lawyers have until mid-October to comment on the proposed changes, there were quickly calls from some members of the personal injury bar for a total ban on lawyer advertising. PI has seen an explosion of advertising in recent years, which has undoubtedly cost some law firms millions of dollars they might have preferred to pocket or spend elsewhere. Competition in PI is fierce and there is certainly a level of mutual resentment among some of the firms whose names you’ve seen on the sides of buses. Those firms work now predominantly on a contingency-fee basis and getting clients and new files in the door is a constant battle that can at times get nasty. However, their animus is no reason to call for an all-out ban on advertising that would affect every lawyer in every area of practice. It’s just not practical.

And where do you draw the line with such a ban? Web sites, Facebook, Twitter, blogs? Advertising and marketing are no longer just about a poster in a bus shelter or a 30-second spot on the radio. That’s not to say there aren’t lawyers whose self-promotion is not without question. A study released last year by Schulich School of Law professor Elaine Craig raised concerns about the ethics of how many criminal defence lawyers advertise their services on the web. She questioned some of the tactics they used in order to push themselves higher in Google search rankings. These included promoting acquittals of those who appear to be factually guilty and implications of the results of aggressive advocacy in sexual assault cases.

Aggressiveness is not necessarily a bad thing, lawyer Gavin MacKenzie told Law Times. “But there is a difference between being aggressive and boasting on your web site about how you have succeeded in having sexual assault charges being withdrawn by intimidating a complainant by threatening to introduce evidence that is in all likelihood inadmissible.”

Craig and others strongly believe changes to professional rules around advertising are necessary. They are outdated and the myriad ways available for promoting oneself and the firm need to be revisited. And there are issues raised by the personal injury bar that do need to be addressed in order that professional ethics are respected.

Some of the LSUC’s proposed changes answer them. Proposed additions to existing commentary give examples of marketing practices that would contravene the rules. They include “failing to disclose that the legal work is routinely referred to other lawyers for a fee rather than being performed by the lawyer;” “misleading about the size of the lawyer’s practice or the areas of law in which the lawyer provides services;” “referring to fee arrangements offered to clients without qualifications;” and “advertising awards and endorsements from third parties without disclaimers or qualifications.”

Lawyers need advertising to promote themselves and build their businesses in a competitive environment. That advertising can contribute to access to justice as well by “empowering people to understand what services are available, what they are, where they can go, who they can talk to, and what they can cost,” as Osgoode law professor Trevor Farrow says. Law societies need to be clear on what is and isn’t acceptable behaviour and then enforce it.

If you have thoughts, especially if you’re practising in Ontario, make sure your voice gets heard.