Editorial | Beyond the Bignall ruling

Jamaica’s judicial system has many serious challenges that need urgent attention. Stopping lawyers from advertising, or otherwise soliciting clients, unless done in a pompous, supercilious fashion, is not one of them.

That, in part, is why we had hoped for a comprehensive strike-down of the General Legal Council’s (GLC) canons on advertising and are, therefore, disappointed in Justice Carole Barnaby’s ruling last week in Vaughn Bignall’s case against the GLC. She removed elements of the rules but left what, from a liberal market perspective, is the offensive core.

Hopefully, Mr Bignall will appeal, taking a shot at full vindication, Preferably, Parliament will act to make explicit the right of lawyers to advertise, subject, like most other people seeking to entice business, to requirements of the Fair Competition Act and the Fair Trading Commission.

Such a move would help to widen access to the justice system to ordinary Jamaicans, who often find it difficult to navigate its arcane corridors, and often believe, not without reason, that they cannot pay to squeeze through its crevices.

Such an action would not make the GLC irrelevant. Chairman Allan Wood, QC, and his team would have more time to look after more important issues.

Vaughn Bignall has been an attorney for more than two decades. His offices are in that building at the corner of Hagley Park Road and Maxfield Avenue in Half-Way Tree that used to have the big ‘BIGNALL’ sign at the top of the building, which the GCL found to be offensive (vulgar?) and in breach of its rules on advertising.

OFFENDED BY CONTENT

Mr Bignall used to advertise in traditional media, on social media platforms, and via electronic billboards, but the GLC complained and ordered him to cease and desist. They were offended by his content. Mr Bignall was summoned to what he interpreted to be disciplinary meetings. He challenged the GLC in court, which was the basis of last week’s unanimous decision by Justice Barnaby on behalf of a three-member panel of the Full Court.

Mr Bignall’s primary contention was that the GLC’s rules infringed his rights to freedom of expression and his right to disseminate information as guaranteed in the Charter of Fundamental Rights and Freedoms of Jamaica’s Constitution. Justice Barnaby rejected his claims to the GLC canons with respect to those that broadly:

. Establish the right of attorneys to advertise, once the advertisement is not “deceptive or misleading ... or unlikely to create unjustified expectation”. Which is the underlying principle of advertising in Jamaica;

. Prevent lawyers from directly or indirectly applying to businesses or firms that are not their clients unless it is customary for those institutions to accept application for legal services;

. Give the council the power to cease lectures, talks, public appearances, or publications; and

. Obligate attorneys to have control of publicity about their practice and firms and respond immediately in the event of information that does not meet the expected standard of propriety.

While Justice Barnaby accepted that the canons infringed constitutional rights, she held that they met the constitutional tests for abridgement on the basis of being “demonstrably justified in a free and democratic society”.

With respect to the legal role of the GLC and its objectives as a legislated regulatory body, Justice Barnaby said: “In our contemporary society which is characterised by a proliferation of social and other media and communication platforms with expansive and often immediate access to content, I believe that advertising justifiably gives concern to a body established to uphold the standards of a noble profession, which has its very foundation in the integrity and dignity of each of its members.” Which might be said of undertakers and any other group of providers of services who expected to perform with dignity, skill, and competence.

However, the judge ruled to be “unconstitutional, null, and void, and of no legal effect” a number of the advertising canons – 11(h), 11(i), 11(k) (iii) – under which the GLC ostensibly had power to order attorneys to rectify alleged advertising breaches. Yet, on closer look, there was no authority in those regulations to sanction lawyers for breaches.

Said Justice Barnaby: “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.”

EASY FIX

This, if the GLC is determined, is a relatively easy fix. And the council is unlikely to be detained for too long by the court’s ruling that the hearings being convened against Mr Bignall breached his constitutional rights to a fair hearing.

There are, however, more fundamental principles at stake, notwithstanding Justice Barnaby’s assumption that the advertising rules were in protection of the nobility of the legal profession.

The limitations on advertising do not specifically perpetuate a closed shop for the big-name lawyers or those who happen to have their cases mentioned regularly in the media. They, nonetheless, establish barriers for the younger professionals who are not in big firms, have no name recognition, and are struggling to get a leg up. And limiting the availability of information also limits the public’s access to lawyers generally, but especially to the younger ones who may be even brighter and more proficient and professional and willing to work for less than some with famous shingles. The upshot: large swathes of Jamaicans left without affordable access to justice.

The greater responsibility for the GLC at this time is to see beyond the archaic looking-over-the-nose presumptions about nobility and integrity in favour of more rigorous oversight on how lawyers and speedier resolution of real complaints is now the case. If the GLC, on the matter, can’t get out of the way, Parliament should act.