Access to justice
Truth and education in legal advertising
Advertising legal services is no longer prohibited in Canada, but many lawyers are still learning how to use it effectively.
Part of the reason is that many still believe that advertising is undignified. We look at our American counterparts and often shake our heads at the lengths lawyers there go to get their name out.
But what if we recognized the educational value of advertising in helping to make better-informed decisions? What if legal advertising was focused on explaining the options available to the client, and informing them of their rights? What if legal advertising was more about the client, and less about us?
Historically, legal advertising was prohibited because of concerns about it being detrimental to the image of the profession. Also of concern was that it would lead to a race to the bottom, with competitors slashing prices to attract clientele.
Since the rules have been relaxed, none of that has happened. If anything, legal services have become more unaffordable. Legal advertising hasn’t changed how we do business; but it is changing how firms approach business development.
Legal advertising is still highly regulated. Rule 4.2 of the Model Code prevents lawyers from unduly raising expectations for outcomes or success, using emotional appeals, or even suggesting “qualitative superiority.” Lawyers are largely limited in Canada to advertising their name and their type of practice, which begs the question why lawyers should bother to advertise in the first place.
Some lawyers have poured enormous sums into advertising, establishing the first point of contact with clients before passing them on to other firms to recoup their expenses through referral fees. These campaigns have grown so large in some cities that they have directly impacted the revenue stream of established and reputable mid-sized firms.
This referral-only type of marketing misses the mark, as the goal is to publicize a phone hotline or website rather than share any information about any services provided. The benefit to the public or the legal community is more questionable.
Our requirement that ads must be “consistent with the high standards of professionalism” is probably part of the reason we haven’t seen Canadian lawyers advertise in the same way as the U.S. At the same time, the Association of Professional Responsibility Lawyers (APRL) in the U.S. released a report this summer calling for even less restriction in legal advertising.
I’m not sure that’s entirely a good idea. Elements of the Model Code unique to Canada are still beneficial.
We are prevented from taking advantage of vulnerable persons or making disparaging remarks about others, and prohibited from suggesting or implying a lawyer is aggressive. Common misconceptions abound that an aggressive lawyer is a better lawyer, but the bar understands that incivility usually protracts proceedings unnecessarily and imposes a significant burden on the justice system.
Legal advertising in the U.S. changed following the Bates v. State Bar of Arizona ruling in 1977. Two lawyers opened a firm with the goal of providing cost-effective legal services to those of modest means but ineligible for legal aid. In order to make these services available to the public, the court concluded these lawyers had to communicate it in the form of marketing.
Today, cost is a significant barrier for almost all consumers of legal services. Alternatives such as unbundled services or using paralegals in Ontario are rarely understood, and as lawyers we could improve how we communicate our services.
What matters even more than cost is effectiveness. Contrasting alternatives conveys effectiveness even better than touting past results. Legal advertising should really be about legal education, explaining how the legal system works, and why certain strategies or approaches are more effective than others.
Family law litigants learn about mediation and collaborative law only after formal proceedings have started. Clients on contingency fees rarely understand disbursements or fees until it’s time for settlement. Store-bought wills will probably work for many people. The smallest estate complication though will usually justify spending on legal advice instead. The criminal justice system is simply daunting to everyone.
Legal marketing should be about dispelling commonly held myths about the legal system, often imparted through pop culture. It means emphasizing alternative dispute mechanisms at the outset.
Qualitative superiority of one set of legal services over another is as much about process as it is about outcomes. Educating the public about that process better manages client expectations and may also attract the type of legal work we enjoy the most.