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UNDER SCRUTINY: Why can’t lawyers advertise?

1/12/2009

By Stephen Alleyne

IN this competitive world we live in, it’s high time lawyers were given the opportunity to advertise their services in the mass media.

Let’s face it, a law practice is no different from any other business and there is no reason why the secretary at a law office or a lawyer who answers the phone should have to explain to every potential client what areas of the law a lawyer or a firm specialises in, if it in fact specialises.

The same way C.O. Williams Limited is free in a full page ad to tell the world “we move the earth to please” and lists its services, lawyers should be free to advertise, from having the services they offer programmed onto their answering services (the simplest and cheapest method) to, for example, inserting an ad in a newspaper or on a billboard which says: “If you have been seriously injured in a vehicle or industrial accident call (123)GETHELP”, the type often seen in the United States. Or even one like this: “We guarantee that you pay no fees unless we are successful in our litigation” (contingency fees, a topic for a future article).

The law presently does not allow lawyers in Barbados to advertise their services.
Rule 9 of the Legal Profession Rules states that “[a]n attorney-at-law may speak in public or write for publication on legal topics provided that he does not thereby emphasise his own professional competence”. And Rule 10 adds “[t]he best advertisement for an attorney-at-law is the establishment of a well merited reputation for personal integrity, capacity, dedication to work and fidelity to trust and it is unprofessional: (a) to solicit business by circulars or advisements or interviews not warranted by personal relations; (b) to seek retainers through agents of any kind.”

Yes, these two rules state the law on advertising but they are very difficult, if not impossible, to enforce given the myriad mechanisms available to circumvent them.

For example, they do not prevent an employee of a mortgage company from recommending to customers who apply for mortgages that the company’s lawyer also act on their behalf despite a patent conflict of interest. Neither do they prevent the real estate agent who feels that there are only three lawyers in Barbados competent to deal with conveyancing matters from directing her or his customers to one of the three lawyers.

The only form of advertising lawyers are presently permitted in Barbados is by business cards and this is unfortunate in an age that potential clients have the right to know about the legal system and the services being offered in order to make informed decisions.

In an appropriate ad a lawyer should be able to explain to potential clients why in the first example it would be in his best interest to have an independent legal advisor to act on his behalf. And in the second case lawyers should be permitted to say something about their track record in conveyancing matters.

I tend to like the approach taken by the Law Society of Alberta, Canada where lawyers are permitted to advertise. The form and content of advertising in that province, according to the Code of Professional Conduct, is subject to the over-riding interest of protecting the public from misleading, confusing, or deceptive advertising, and must be consistent with the public respect and confidence in the integrity and independence of the profession, the
administration of justice, and associated institutions.

Rule 2 of chapter 5 of the Code of Professional Conduct, Alberta, Canada states:

“A lawyer may advertise, provided that the advertising contains information relevant to the selection of counsel or to the understanding of rights and, further, is:

(a) demonstrably true, accurate and verifiable;

(b) neither misleading, confusing, or deceptive, nor likely to mislead, confuse or deceive;

(c) consistent with public respect and confidence in the integrity of the profession and the administration of justice; and

(d) consistent with these Rules.”
This rule gives lawyers in Alberta the freedom to advertise but it forbids any misrepresentation or omission of law or fact.

Thus if a lawyer wants to advertise his services as a defence advocate he is not permitted to state the number of acquittals he has had without stating the number of convictions. Similarly, an advertisement that states or implies qualitative superiority to a firm or another lawyer is generally prohibited by this rule because this cannot “be verified according to any objective standard”.

I suspect there is fear in Barbados that the legal profession would be watered down if lawyers are allowed to advertise their services. I am not aware of any evidence in any of the jurisdictions where this has happened to suggest that his has been the case.

Potential clients should be able therefore to consult an ad in one form or another in order to assist them in making informed decisions about their legal affairs. I envision that if the Legal
Profession Rules were amended to allow lawyers to advertise, that down the road it would have the effect of increasing the level of efficiency in the profession. It’s a matter the Bar Association should give serious consideration.

(Stephen Alleyne is an attorney-at-law and a former member of the Royal Barbados Police Force. Email: swalleyne@sunbeach.net)

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