Gordon Robinson | It’s always about the money

Cawn’t sey mi neva dida warn yu!

I started on this particular hobby horse five years ago while attending a General Legal Council (GLC) mandated continuing legal education seminar on the canons of “ethics” where I was forced to listen to a tone-deaf lecture as to why lawyers shouldn’t advertise (sounded like it was beneath the profession) and why GLC should vet and approve/veto any advertisement.

Feeling like a Uyghur, I usually nap during these forced re-education sessions but, firstly, out of respect and admiration for the tutor and, secondly, because the topic was close to my constitutionally fixated heart, I not only stayed awake but also made one of the only two post-lecture contributions I’ve ever made. I asked the gathering to consider the “new” freedom of opinion and expression mandates in the 2011 Charter of Rights. I didn’t get the impression I was treated seriously (usually a sound reaction to my grumpy old man rants).

Years later, on April 30, 2020, I engaged Jamaican journalist extraordinaire Dionne Jackson-Miller in a twitter exchange. She started it:

“@djmillerJA

This lawsuit claiming General Legal Council restrictions on advertising are unconstitutional was inevitable. High time this is tested in court so the speculation can end. Yes, I’m looking at it later on Beyond the Headlines

@TheTerrible Tout (moi)

Replying to @djmillerJA

I raised this very issue about 3 years ago at a CLPD seminar on GLC advertising restraints. You’d be surprised at who hasn’t (or at least hadn’t up to that point) understood the paradigm shift in Constitutional Law introduced in 2011

@djmillerJA

Replying to @TheTerribleTout

I’ve heard you on it.”

I returned to the pet peeve on August 21, 2021, in a Sunday column headlined Protecting freedom of speech. I wrote then:

“GLC chairman Allan Wood’s assertion in a recent Gleaner article that ‘attorneys are officers of the court and this places them in a distinct category from other providers of goods and services’ is unnecessarily bigheaded and discloses an attitude of superiority that defies Jesus’ teachings of equality. In my opinion, lawyers telling other lawyers what they can or can’t say; how they can or can’t advertise is a clear breach of freedom of speech.”

LANDMARK CASE

So, anybody who has been following my tirades on this topic would have expected the recent decision of the Full Court declaring certain GLC canons restricting advertisement as breaches of the rights to freedom of speech and opinion, unconstitutional, null and void.

Surprise!

The Full Court made some seminal findings in what looks to me like a landmark case (Vaughn Bignall v GLC [2022] JMSC FULL 1) including:

1. Commercial speech, advertising in particular, is protected by the Freedom of Expression guaranteed by the Charter of Rights;

2. The right to Freedom of Expression is “undoubtedly engaged” by the GLC’s advertising Canons but the concept of the regulation of legal advertising is sufficiently important to pass the first test for “demonstrably justified”;

3. The second test (“proportionality”) is satisfied where the means used are rationally connected to the objective; impair the right “as little as possible”; and there’s proportionality between the effect of the measures and GLC’s objective (the more injurious the measures the more important the objective must be).

Against that background the Court found:

A. The Canon barring lawyers from publishing advertisements that were “misleading or deceptive or likely to mislead or deceive or likely to create an unjustified expectation” satisfied all tests and were constitutional. I would only comment that this is already the law of the land in Jamaica and nobody needs the GLC shadowing or duplicating other enforcement options simply because the culprit may be a lawyer but I suppose GLC may need something to do that sounds important.

B. Canons prohibiting lawyers from soliciting business from non-clients (except for institutional entities) and from permitting professional profiles being used to advertise any product, service or commercial organisation satisfy “demonstrably justified” tests as they infringe “as little as reasonably possible” and are proportionate to GLC’s objectives.

C. Canons that place an onus on lawyers to ensure publicity is in accordance with the Canons and to use best efforts to withdraw any improper publicity trespass “as little as reasonably possible” on the attorney’s freedom of expression and are proportional to GLC’s objectives so also pass the “demonstrably justified” test.

D. But Canons II (h) (I) (j) and (k) (iii) [GLC may order the removal, withdrawal or discontinuance of any advertisement or business card; or that a lawyer cease, or limit lectures, talks, public appearances etc, or discontinue offensive publicity] are all unconstitutional, null and void. According to the Court they go “beyond existing sensible regulatory restraints and are in effect unnecessary” which reads to me like a polite way of saying they are “unnecessarily bigheaded and discloses an attitude of superiority that defies Jesus’ teachings of equality.” But that’s the sort of comment a Grumpy Old Man makes in Gleaner columns and would never escape the lips or pen of any Judicial Officer.

E. GLC’s order limiting the claimant’s right to advertise on social media is also unconstitutional as an excessive breach of the right to freedom of expression and the right to disseminate opinion in any media.

F. Orders by the Council and by its Advertising Committee to withdraw certain advertisements also infringed the claimant’s constitutional right to a fair hearing by an authority established by law. Only the GLC’s Disciplinary Committee would be so authorised. In any event, the orders were made pursuant to canons found to be unconstitutional.

In my opinion, the judgment sends a message to GLC not to play the giddy ass with freedom of expression. It’s hunky dory if GLC wants to support existing law that advertisements can’t be deceptive or misleading but, as I wrote in August 2021, “lawyers telling other lawyers what they can or can’t say; how they can or can’t advertise is a clear breach of freedom of speech.”

We are going to have to re-think this notion, instilled by colonial deep-sleep hypnosis, that lawyers are members of an elite group whose morals, ethics and contributions to society are somehow intrinsically higher and better than any other citizen’s. It’s this annoying misconception that still has us dressing up like over-stuffed penguins for open court trials; bowing and scraping to judges who we must call “My Lord” or “My Lady”; and opening and closing every court session with “God save the Queen”. For pity’s sake, God is too busy with the uphill task of trying to answer all our prayers, especially from those of us in casinos with dice in hand.

LAWYER JUST ANOTHER WORKMAN

If we truly want Jamaica to become a Republic in reality rather than by empty symbolism alone, we must first disabuse ourselves of occupational stratification notions and realise that a “lawyer” is just another workman (albeit with different skill sets, obligations and duties) like a mason, teacher, policeman or architect and practising law is just another job.

The main reason lawyers perpetuate this nonsensical exaggeration of their own importance is so they can continue the wholly unnecessary task of being custodians of clients’ funds as if they were friendly banks.

The mind control strategy, meant to deflect logic and avoid transparency, proposes that, since lawyers are intrinsically more ethical than, say, auto mechanics or engineers, then Joe Blow should trust them with millions of his dollars which Joe could easily pay directly to a vendor (as he would in EVERY non-land purchase) after a lawyer has established it’s safe to do so. THAT might make life economically difficult for some lawyers whose clients’ accounts are, for them, easy opportunities to exercise Rinsers’ Rights.

But GLC does NOT want to address that glaring sore on the backside of the legal profession. It’s much easier for all concerned to restrict competition for clients’ cash by using its authority to veto competitors’ advertisements.

So, you see, once again I can trace societal dysfunction back to the fundamental principles of Goodman’s Law. Don’t ask if it’s about the money. It’s ALWAYS about the money.

Peace and love!

Gordon Robinson is an attorney-at-law. Email feedback to columns@gleanerjm.com