Ethical and effective advertising

Legal advertising has an obvious purpose. The best advertising is memorable and informative, and assists members of the public to find lawyers who can assist them with their legal problems. Effective advertising generates business and increases profits.

Lawyers are required to maintain high standards of professionalism and are subject to rules that protect the public from irresponsible and misleading advertising. When clients choose a lawyer, they are making an important decision, and are trusting their lawyers with their well-being and resources. Clients are potentially vulnerable, as many are not able to verify the accuracy of statements about the quality or cost of a lawyer’s service. Many potential clients may take lawyers’ advertising at face value, often at a time when they are facing significant stress and may not know where to turn.

The Law Society of Alberta implemented a new Code of Conduct in 2011. Alberta adopted the Federation of Law Societies’ Model Code advertising rules, with some modifications. Overall, the introduction of new rules did not significantly change the regulation of lawyer advertising in Alberta.

Lawyer advertising rules do not purport to regulate or define “good taste”, but they do prohibit misleading, confusing or deceptive advertising. Advertising must not bring the profession or administration of justice into disrepute, and marketing must be in the best interests of the public and consistent with high standards of professionalism.

The rules apply to all forms of communication in which lawyers offer or market their legal services. Print ads are no longer the primary focus, as lawyers advertise on online platforms, social media, television, radio, and at sport stadiums, to name a few.

Few disciplinary hearings arise from violations of advertising rules, in Alberta or in other provinces. In Alberta, lawyers usually modify their advertising on a voluntary basis when the Law Society raises concerns. The Law Society of Ontario has, however, amended its rules to deal more specifically with lawyers’ advertising practices, and Ontario lawyers have recently been disciplined for misleading advertising. Law societies may be prompted to revisit their approach to advertising in light of the increasing number of venues in which lawyers promote their services.

Protecting the public interest

The Alberta Code of Conduct requires that advertising must:

• not be false, misleading, confusing or deceptive, or likely to mislead, confuse or deceive;
• be demonstrably true, accurate and verifiable;
• not suggest qualitative superiority to other lawyers;
• not raise expectations unjustifiably;
• not take advantage of a vulnerable person or someone who has suffered a traumatic experience;
• not amount to coercion, duress, or harassment;
• be in the best interests of the public and consistent with a high standard of professionalism;
• not bring the profession or the administration of justice into disrepute;
• not suggest or imply a lawyer is aggressive;
• not disparage or demean other persons, groups, organizations or institutions;
• not use testimonials or endorsements that contain emotional appeals;
• not refer to the lawyer’s degree of success in past cases, unless such statements are accompanied by the qualification that outcomes will vary according to the facts in individual cases;
• not advertise that they are specialists or experts in Alberta. This means lawyers should avoid the use of derivative words such as “specialize” or “expertise”, though they can advertise preferred practice areas;
• not advertise that the firm makes loans to clients;
• ensure information about fees, disbursements, “other charges” and taxes is accurate;
• not disclose confidential client information without client consent.

Some examples of advertising practices that breach the Code of Conduct include:

• statements that a lawyer has obtained the largest settlements in the province or country: Settlements are not reported, and are typically confidential, making their amounts impossible to verify. Promises of large settlements create unreasonable client expectations. Advertising about potential outcomes should always be qualified to ensure clients understand their cases must be decided on their own merits.
• stating the lawyer or firm is the “leading” lawyer or firm or is “the best” or most experienced in the city, or in a certain practice area: These statements suggest qualitative superiority. Firms will sometimes claim to be the best or top choice, or purport to rely on third party rating services that state they have been ranked in that manner. The use of third party ratings may be misleading when they refer to awards, rankings or third party endorsements that are not bona fide or are likely to be misleading, confusing or deceptive. Advertising that relies on a third party ranking may be misleading when it does not genuinely reflect the performance of the lawyer and the quality of the services provided by the lawyer, is not the result of a reasonable evaluative process, or is conferred as the result of a payment rather than as the result of a legitimate evaluation of the quality of the lawyer’s service. In contrast, references to awards or honours that genuinely reflect a lawyer’s professional or civic service do not contravene the rules.
• including “& Company”, “Group” or “& Associates” in the firm name of a solo practitioner:This language is misleading about the extent of the firm’s resources.
• derogatory references to the billing practices, ethics or skills of other lawyers and law firms: In an example from Ontario, a lawyer was sanctioned for suggesting that his firm obtained high settlements for clients, often after clients contacted the firm for a second opinion or he had salvaged files other lawyers had bungled.
• a reference to numbers or types of successful outcomes: Statements about past successes can potentially be misleading. Is the success due to the lawyer’s skill or the strength of the case, the fact pattern, etc? And what does it mean to have been “successful”?
• suggestions that a lawyer or firm is aggressive, through images of aggression, like dogs or dragons, or references to being “tough”: This contravenes the Code by suggesting the lawyer is aggressive. For example, some lawyers refer on their websites to newspaper articles describing their aggressive cross-examination of witnesses. These advertising practices are attempts to do indirectly what lawyers are not able to do directly, and amount to touting of superiority or aggressiveness.
• manipulating online ratings or creating false online reviews or testimonials.

Referral services are another form of lawyer advertising. A lawyer must not split fees with, or pay referral fees to, any non-lawyer who refers clients to the lawyer. Lawyers are also prohibited from giving other financial or non-monetary rewards to non-lawyers for the referral of clients. Compensation cannot be directly related to a specific client matter, whether based on a fee per file or a percentage of billings. Lawyers may, however, pay for reasonable advertising costs, including flat fees for lawyer referral services.

The rules do not prevent lawyers from engaging in promotional activities or making reasonable expenditures on promotional items or marketing activities that may result in the referral of clients. Lawyers are allowed to take clients for meals, to provide tickets to sporting or other events, or to sponsor client functions.

Canadian lawyers are creative in how they advertise their legal services. Many use online platforms and social media to provide relevant legal information to a target audience of potential clients. In addition to complying with advertising rules, lawyers should develop advertising that is consistent with their firm’s vision and goals. The tone of a lawyer’s advertising is often reflected in the clients that the firm attracts.

Ultimately, lawyers should be aware of how clients search for firms and what type of information they are seeking. Referral and ranking services might not be the most frequently used tools and firms may be better served by ensuring they have an informative website. Clients are best served when they can access information about the firm’s range of experience, and the types of cases the firm handles. Above all, clients need to have a clear understanding of what to expect when they hire a lawyer.