Lawyers have been enjoying the right to advertise since 1998 – Wood

The restrictions placed on how lawyers advertise their businesses locally are perceived by critics as draconian, but those curtailments remain the same in spite of the recent ruling of the Supreme Court in the Bignall case with the General Legal Council (GLC).

The GLC is the watchdog group for members of the legal profession, tasked with regulating lawyers and upholding and maintaining the integrity and standards of the profession, among other things, guided by the Legal Profession Act and Legal Profession (Canons of Professional Ethics) Rules referred to as the ‘canons’.

The court, however, has ruled that the manner in which the GLC as a body, and its advertising committee, had been conducting themselves in terms of how they seek to regulate how lawyers advertise was unconstitutional and beyond their power.

The court also ruled that the advertising committee’s power that it wielded in terms of reprimanding practitioners, and making certain orders for supposed breaches of the canons as it relates to advertisements, was unconstitutional and unlawful.

The committee’s main function was to review specific proposed advertisements by individual practitioners and law firms as to their suitability and compliance with the advertising rules, and to make certain recommendations to ensure that advertisements were in keeping with the tenets of the canons.

The ruling follows a claim brought against the GLC by the operator of the law firm Bignall Law, Vaughn Bignall, in which he contended that some of the council’s advertising rules breached his constitutional rights.

Bignall’s primary contention was that the GLC’s rules infringed his right to freedom of expression and his right to disseminate information, as guaranteed in the Charter of Fundamental Rights and Freedoms of Jamaica’s Constitution.

The contentious issue between the two parties arose after the GLC, in September 2018, cited the law firm for breaching the canons, following the publication of a number of advertisements, including the airing of an advertisement on TVJ during the Grammy Awards in January 2018, which was dubbed as “particularly egregious”.

FORMAL COMPLAINT

This resulted in a number of orders being made against the firm by the GLC in September 2018, which included the discontinuation of any further advertisement and for the firm to seek approval from the council before doing any further promotion. The matter was however, escalated by the GLC to its Disciplinary Committee, via a formal complaint against the firm.

The appellate judges, in their decision, ruled that the council was not empowered by the Legal Profession Act (LPA) to impose any such sanction against practitioners, as any supposed breach should be dealt with exclusively by the disciplinary committee, which is provided for by law.

“I have determined that the advertising standards prescribed by the council and which were challenged by the claimant are lawful, but that the council erred in respect of the mechanism for their enforcement,” the judgment said.

The judgment further found that it is the remit of the council to make rules and prescribe conduct that is to be treated as professional misconduct.

Additionally, it added: “ The wide supervisory and rule-making powers delegated to the council enable it to respond to changes which may, by their nature and potential for harm, require the council to take action to reduce, eliminate or prevent harm to the profession or those its members serve.

Consequently, the judges concluded that the council must also be permitted to organise itself and put systems in place which promote compliance to the extent permitted by the LPA.

With the rise of social media and their communication platforms, the judges agreed that there would be a need for the council to concern itself about upholding the standards of the profession.

At the same time, the appellate judges found that the aspects of the canon which speak to orders by the GLC for the removal, withdrawal or discontinuance of an advertisement; the discontinuation of the use of lawyers’ business card; order to cease lectures, talks, public appearances, transmission or publications; as well orders from the council to alter, modify withdraw, remove or discontinue publicity – where the council is of the view that they are not in keeping with the canons –infringed on the lawyers’ right to freedom of expression and to his right to disseminate information, as guaranteed in the Charter of Fundamental Rights and Freedoms of Jamaica’s Constitution.

‘NO LEGAL EFFECT’

The court ruled that those elements of the canons were “unconstitutional, null, and void, and of no legal effect”.

“If the orders made pursuant to canons 11(h), 11(i), and 11 (k) (iii) cannot, except by moral suasion, ensure compliance with the established advertising standards, I am unable to discern the necessity for their inclusion ... . I find the overarching principle emanating therefrom, that where the measures limiting a guaranteed right go beyond existing sensible regulatory restraints, they are, in effect, unnecessary,” the court said.

Meanwhile, Chairman of the GLC, attorney-at-law Allan Wood, while expressing surprise that the view was being perpetuated that lawyers could not advertise before the ruling, emphasised that lawyers have been enjoying the right to advertise since 1998. He noted that with the ruling, nothing has significantly changed with respect to the advertising restrictions.

“We want to make it clear that it is wholly false to convey to the public that advertising to the public was not permissible before the judgment of the court.

“Advertisement by attorneys has been permitted since 1998, and we are dismayed that it is being conveyed to the public, throughout public media, that advertisement by attorneys was not permissible,” he said.

Wood noted that the core regulation prohibits advertisement that is misleading and that advertisements must be compatible with the lawyers’ standing as an officer of the court, and that they should not use their position as an attorney to advertise other goods or services.

However, as it relates to the ruling, he said, “We had a situation where our advertising committee would review advertisements by attorneys, and if something was seen that we thought would be improper they would communicate with the attorneys and try and have them deal with it. If the attorney didn’t deal with it, then we would send it to the council.”

He added: “The council would call in the attorney and initially try to sort it out, and if it couldn’t be sorted out, the council would make an order telling the attorney to do this or that; and if that order was not obeyed, it would then go to the disciplinary committee as a formal disciplinary complaint.”

“Those orders were not enforceable by law; we relied on moral suasion. But the court has found that that is not in keeping with the Constitution, so the council can no longer make those sort of orders. What we will now need to do is, go straight to the disciplinary committee and ask for attorneys to be disciplined,” he explained.

The regulation of advertising for attorneys, he emphasised, is not unique to Jamaica, nut is similar to those in other Commonwealth countries. This is aimed at protecting the public and maintaining the reputation of the profession.

“We recognise, as do other Commonwealth countries, that attorneys are officers of the court and that unregulated advertising can be harmful to the public, in that one can very easily mislead the public, or have advertising which is damaging to the reputation of attorneys generally,” Wood said.

In the meantime, he added, “We are pleased that the Constitutional Court has affirmed the core regulations relating to advertisement, and has clearly stated that there is a need for such regulation in order to protect the public.”

UPDATED ADVERTISING REGULATIONS

Based on the GLC’s updated advertising regulations, advertisements should not be misleading or deceptive, creating unjustified expectations; vulgar or sensational; promote superiority. Furthermore, attorneys should not use their status to promote any particular products, services or commercial organisations.

Among these restrictions is the prohibition of the use of phrases such as:

– ’Advocacy’ or other skills as ‘unmatched’, ‘No. 1 in the field of personal injury’, ‘Better than the rest of’, ‘We win more cases’, ‘Premier criminal/civil advocate’.

– The words ‘and company’, ‘group’, ‘suite’, ‘and associates’ when one is a sole practitioner are prohibited, as such an advertisement suggests a firm of attorneys, when it is not so.

– The words ‘international’ or ‘Caribbean’ in the firm’s name when one practises solely in Jamaica, as such an advertisement suggests a multi-jurisdictional practice.

– The use of a sequence of names that may suggest the existence of a partnership when one is practising as a sole practitioner and liability attaches to a single person.

– Claims or assertions that are not demonstrably true, accurate and verifiable.

– Solicited instant messages and/or broadcasts to persons who are not your clients.

– Overly dramatic or emotive words or pictures.

– Advertisements which include the portrayal of a judge.

– The delivery of flyers to mailboxes or businesses.

– Billboards along a public roadway.

– WhatsApp broadcasts.

– Running ticker-tape ads (‘chyrons’).

– Mass mailings, for example, by electronic media.

– Mass broadcasts and/or social media advertising campaigns, including those offered by Instagram or Facebook, which may result in an attorney’s advertisement frequently appearing in the feeds of targeted sections of the public.

– Bumper stickers.

– Entering into an arrangement with any person, whether an employee or not, for the introduction of a client to the attorney, whether or not for a fee; for example, doctors, members of the constabulary force, porters, nurses, or real estate agents.

However, there were mixed views regarding the enforcement of the restrictions by some lawyers, even as they conceded that there is a need for some form of regulation for advertising campaigns.

“If you are providing quality service and wish for the public to be aware of your existence, I take no opposition in the action. We have to remember that the practice of law is a business. In so far as the advertisements are not misleading and deceptive, lawyers should be able to disseminate information without a big-stick approach over their backs,” reasoned Alexander Shaw.

Noting that many big law firms have websites and can be easily found, while sole practitioners have none, he opined that the playing field is not level.

“Medicine is as serious as law and doctors advertise, so it’s time Jamaica moves along with the changing times. Let consumers choose,” he said, adding that the “guardrails” are necessary to prevent any deception or harm to the public.

MISLEADING

His colleague Kemar Robinson said, “I think there ought to be some restrictions, because there are circumstances where some lawyers are not particularly competent in a specific area and they advertise themselves as such; and that may have grave result, because they don’t have the requisite experience and expertise.

“I think what should happen is that lawyers should be permitted to advertise their competence and the results of what they have accomplished, and let their track record speak for itself,” he said.

At the same time, Robinson said that given the proliferation of the profession, with persons having an increased pool of lawyers from which to choose, advertising is important. But he said the over-the-top advertisement utilising large billboards and bumper stickers, etc, is not necessary, as it is likely to bring the profession into disrepute and cause competition among lawyers where advertising is the focus, as opposed to competence.

Yanique Watson, however, said: “We would welcome some more latitude, but not to the extent of losing the nobility of the profession. But at the same time, we have to balance the economic interest of the attorney, because they are business professionals. The restrictions, as they stand, are very stifling for small firms and sole practitioners.”

While noting that he does not personally believe in advertising his services, Isat Buchanan said he appreciates why some lawyers would want to advertise, but that it should be tastefully done and not be misleading.

“I hope we never get to a place where the media is flooded with poorly edited commercials, reminiscent of ‘it’s here again when dem present goodas round robin’, to invite the public to your services,” he said.

tanesha.mundle@gleanerjm.com