Allan Wood | Attorneys can advertise in personal injury matters

Please permit me to respond to the editorial titled ‘Why shouldn’t lawyers put their names in neon?’ published in The Sunday Gleaner on August 1. I will refrain from addressing issues involving any particular attorney given that, as mentioned in the editorial, there is a pending court case.

The editorial portrays a distorted view of the General Legal Council (the council) as a body dominated by QCs who are intent on maintaining the profession as a closed shop restricting advertising by members of the profession. It is unfortunate that before publishing an editorial, notable for its emotive language, no step was taken to obtain the facts from the council.

The council comprises 17 members, 14 of whom are attorneys appointed by the minister of justice on nomination by the Jamaican Bar Association, as well as a representative of the chief justice, a representative of the minister of justice and a representative of the attorney general. It is a statutory body charged with maintaining standards of professional conduct.

The composition of the council reflects a self-regulatory scheme where, through the nominated members with input from the judiciary, the minister of justice and the attorney general, standards of professional etiquette and professional conduct for attorneys are prescribed. The council may also direct that any specified breach of such rules shall constitute misconduct in a professional respect.

In addition, the regulations relating to advertising are administered through a committee of the council. The advertising committee comprises senior attorneys as well as younger members of the profession with varied practices representative of a broad cross section of the profession. This committee makes recommendations to the council.

Up to 1998, the rules of professional conduct in Jamaica completely barred advertising. That bar reflected the common law that governed solicitors and barristers and that bar still obtains in some jurisdictions. For example, the Legal Profession Act of Trinidad and Tobago in the Third Schedule paragraph 7 states that:

“The 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 advertisements or interviews not warranted by personal relations;

(b) to seek retainers through agents of any kind.

The law of Trinidad and Tobago identifies the essential qualities that members of the public seeking legal services require of an attorney-at-law, i.e., personal integrity, dedication to work and fidelity to trust. These essential qualities are not necessarily, if at all, discernible from an advertisement.

In Jamaica, the council removed the absolute bar on advertising in 1998 and the 1998 rules were further amended by the Legal Profession (Canon of Professional Ethics) (Amendment) Rules 2016. Among other things, the 2016 amendment removed the requirement of obtaining prior consent from the council in respect of advertising for personal injury work, a matter that appears not to be appreciated by your editorial. In other words, the council has carried out periodic reviews and amendments to move with the times.

It remains the view of the council and its committee, which carried out consultations in formulating the 2016 amendment, that in addition to prohibiting false and misleading advertising, the rule that prohibits advertising that is vulgar, sensational or of such frequency or otherwise as likely to adversely affect the reputation or standing of any attorney or the legal profession should be maintained.

Why is that? The answer is that attorneys are officers of the court and this places them in a distinct category from other providers of goods and services. The conduct of attorneys-at-law impacts the public perception of the legal profession and the system for the administration of justice, of which attorneys are an integral part. This is also the reason why lawyers are required to dress in court in certain prescribed ways, to address judges and their colleagues respectfully and to conduct themselves in and out of court in a particular way. Accordingly, some restraint is to be expected in respect of the public advertising (including signage) of attorneys as opposed to, by way of example, the advertising of persons in the entertainment and gaming industries.

The further question that arises is who is the arbiter of whether advertising is vulgar, sensational or likely to adversely affect the reputation of the profession. The answer was supplied some years ago by Justice Graham Perkins in the case of Diggs White v Dawkins [1976] 14 JLR 192 at 195, following the English decision of Re A Solicitor ex parte the Law Society [1911-13] All ER 202. The latter case involved the question of whether a solicitor had committed an act of professional misconduct by soliciting debt collection work through a company in which he had an undeclared interest. The English court held that the conduct of a solicitor in his profession must be judged by the rules of his profession and by the standards which the vast majority of the members of the profession make, not only for their brethren but also for themselves. In Jamaica, as held in the Diggs White Case, while the rules are made by the council, the determination of whether the conduct of an attorney constitutes professional misconduct is made independently of the council by the Disciplinary Committee with a right of appeal to the Court of Appeal. Where constitutional issues of free speech are raised, the determination will be made by the Supreme Court with a right of appeal to the Court of Appeal.

The rules governing advertising by the profession in Jamaica are more liberal than exist in some other Commonwealth Caribbean territories which share similar traditions of professional ethics and etiquette. The rules are in the view of the council entirely appropriate to the regulation of advertising by attorneys as officers of the court.

Allan Wood is chairman of the General Legal Council. Send feedback to columns@gleanerjm.com