The Rules of Advertising
The Model Code
Following the SCC decision in Royal College that professional bodies should and could regulate legal advertising to protect the public’s interests, law societies enshrined rules in their codes of professional conduct regulating the form and content of legal advertisements.
The Canadian Bar Association promotes harmonized standards of professional conduct. While some law societies have adopted the language in the Federation of Law Societies of Canada’s (FLSC) Model Code of Professional Conduct, there are important distinctions between the law society codes in different jurisdictions. Although the Model Code’s basic principles have been adopted with some consistency, it is imperative lawyers consult the code(s) of conduct in their jurisdiction(s) to ensure compliance with their respective professional obligations. Do not assume that a rule in one jurisdiction is the same or similar to a rule in another jurisdiction.
The relevant sections in the Model Code are sections 2.1, 3.3-1, 4.1-2, 4.2-1, and 4.3.
General Rules
The Model Code sets out the overarching principle of integrity to guide a lawyer’s conduct:
2.1 INTEGRITY
2.1-1 A lawyer has a duty to carry on the practice of law and discharge all responsibility to clients, tribunals, the public and other members of the profession honourably and with integrity.
The duty of integrity applies to a lawyer’s practice and associations with clients, tribunals, and notably, the public. In the commentary, the Model Code highlights the fact that public confidence in the administration of justice and in the legal profession may be eroded by irresponsible conduct. As a result, a lawyer’s conduct should reflect favourably on the legal profession and inspire confidence, respect, and the trust of clients and the community. Based on this principle, lawyers should avoid even the appearance of impropriety.
Advertising, as it is broadly defined in this toolkit, is a significant source of communication between lawyers and the general public and lawyers must take care when creating content to avoid any behavior that conflicts with their duty of integrity.
Advertising Rules
To help lawyers uphold the professional duty of integrity, the Model Code includes several rules that specify how a lawyer may market their professional services:
MAKING LEGAL SERVICES AVAILABLE
4.1-2 In offering legal services, a lawyer must not use means that:
- are false or misleading;
- amount to coercion, duress, or harassment;
- take advantage of a person who is vulnerable or who has suffered a traumatic experience and has not yet recovered; or
- otherwise bring the profession or the administration of justice into disrepute.
Although this section does not pertain directly to advertising and marketing, it does specify that when offering services, a lawyer must not use means that are false or misleading or otherwise bring the profession or administration of justice into disrepute. (We will see later that these requirements are easily overlooked and a lawyer who does not carefully consider these principles may easily contravene them.)
MARKETING
Marketing of Professional Services
4.2-1 A lawyer may market professional services provided that the marketing is:
- demonstrably true, accurate and verifiable;
- neither misleading, confusing or deceptive, nor likely to mislead, confuse or deceive;
- in the best interests of the public and consistent with a high standard of professionalism.
In the commentary, the Model Code offers examples of behaviours that may contravene this Rule:
- Stating the amount of money recovered for a client or referring to the lawyer’s degree of success unless accompanied by a statement that provides past results are not indicative of future results and that the outcome will vary according to the facts of individual cases;
- Suggesting qualitative superiority;
- Raising expectations unjustifiably;
- Suggesting or implying the lawyer is aggressive;
- Disparaging or demeaning other persons, groups, organizations or institutions;
- Taking advantage of a vulnerable person or group; and
- Using testimonials or endorsements that contain emotional appeals.
ADVERTISING NATURE OF PRACTICE
4.3-1 A lawyer must not advertise that the lawyer is a specialist in a specified field unless the lawyer has been so certified by the Society.
The commentary for this Rule states that the purpose of advertisements is to help potential clients choose a lawyer with the appropriate skill and knowledge for their particular legal matter.
Many law societies have formulated other ethical duties on legal advertising that members must follow. In Ontario, for example, commentary for Rule 4.2-1 states that lawyers should not refer to awards, rankings, and third-party endorsements that are not bona fide or are likely to be misleading. Further, the Ontario commentary states that including terms like “best”, “super” and “#1” contravene this Rule.
Additional Rules
In addition to the specific rules on advertising and the general duty to act with integrity, the code of conduct may contain additional rules that affect a lawyer’s ability to advertise. For example, the duty of confidentiality in the Model Code is common across many jurisdictions.
CONFIDENTIAL INFORMATION
3.3-1 A lawyer at all times must hold in strict confidence all information concerning the business and affairs of a client acquired in the course of the professional relationship and must not divulge any such information unless:
- expressly or impliedly authorized by the client;
- required by law or a court to do so;
- required to deliver the information to the Law Society; or
- otherwise permitted by this rule.
USE OF CONFIDENTIAL INFORMATION
3.3-2 A lawyer must not use or disclose a client’s or former client’s confidential information to the disadvantage of the client or former client, or for the benefit of the lawyer or a third person without the consent of the client or former client.
These rules obligate lawyers to hold all information concerning their clients in strict confidence, subject to several exceptions. According to the commentary for this rule, lawyers should not unnecessarily disclose that they have been retained by a person about a particular matter whether that person is a current client or not.
Overview
Although we focus on the rules and requirements in the Model Code, every lawyer is responsible for reviewing and adhering to the requirements of the regulatory body of their jurisdiction(s). Despite differences between jurisdictions, however, the rules on legal advertising may all be distilled to one basic principle: advertisements cannot be misleading.1
You can find more information about the specific rules and requirements in each law society’s Code of Conduct:
Learn More:
Law Society of Alberta “Ethical and Effective Advertising”