Legal marketing is back in the news this week, after the Toronto Star’s scathing article about practices at Diamond & Diamond, a group of lawyers who advertise, among other things, that they are a “top rated team of personal injury lawyers across Ontario.”
In addition to focusing on Diamond & Diamond’s allegedly troublesome use of referrals, the Star article also outlined the groups purportedly problematic use of marketing campaigns and misleading advertising.
As many lawyers are aware, there is generally no problem with marketing your firm or your services, so long as any marketing and advertising is done within the parameters outlined by the Law Society of Upper Canada (LSUC) in its Rules of Professional Conduct (the Rules).
Indeed, in recent years lawyers have been relying on traditional marketing practices, and, even more recently, have also (wisely) begun to harness the power of social media and are active on Twitter, Facebook, on blogs, and across other platforms. Having a social media presence is permissible under the Rules where the fundamental ethical tenets of the legal profession are maintained.
Proposed Changes to Rules of Professional Conduct on Marketing and Advertising
As we’ve previously written about, in 2015, the Law Society of Upper Canada (LSUC) announced proposed changes to the Rules on legal marketing and advertising, and subsequently sought input from the legal community on their proposals.
In November 2015, the LSUC’s Professional Regulation Committee reviewed the profession’s collected insights and determined that additional information was required before making any substantive changes to its marketing and advertising rules.
An Advertising and Fee Arrangements Working Group was established, and, between March and May of 2016, the Group held focus group meetings with various stakeholders, including legal associations and organizations, law firms, hospital General Counsel, and individual lawyers, to obtain a deeper understanding of current marketing practices and issues.
In June 2016, the Working Group issued an interim report outlining some of the feedback collected, and requested input from lawyers and paralegals on potential regulatory responses. The Working Group is expected to provide a final report with recommendations to the Professional Regulation Committee and Convocation in 2017.
Suggestions made by the Working Group in their interim report include:
- More transparency with additional charges for services that are advertised as “all in” pricing (such as disbursements and taxes that may ultimately increase a client’s bill) particularly in the area of Real Estate law;
- Increased transparency with respect to contingency fee pricing, including disclosure of usual contingency rates and arrangements by practitioners who operate under this model;
- Fair disclosure of services being offered, particularly for firms who frequently refer work out to other firms (this is undoubtedly a response by the Working Group to practices such as those undertaken by Diamond & Diamond);
- Full disclosure of the nature of any award or honour listed by a lawyer or law firm on their website, including any fees paid or arrangements made that may have had an effect on the award.
The Working Group also made a number of policy statements, including:
The Working Group is of the general view that lawyers and paralegals soliciting work that they are not permitted to provide, are not competent to provide, or do not intend to provide are misleading consumers. The public is entitled to expect that lawyers and paralegals are themselves offering to provide the legal services that they advertised.
We will continue to follow developments with the recommendations as they proceed to the next stage of consultation, and will provide updates as they become available.
In the interim, existing rules about marketing and advertising by lawyers and law firms continue to apply.
Current Rules of Professional Conduct on Advertising
Under the current Rules, lawyers may market legal services as long as their marketing is:
- Demonstrably true, accurate and verifiable;
- Is not misleading, confusing or deceptive and is unlikely to mislead, confuse, or deceive;
- Is in the public’s best interests and is consistent with a high standard of professionalism.
Specific examples of marketing that violates these rules are:
- Advertising a specific sum of money that the lawyer has recovered for a client or making reference to the lawyer’s degree of success in past cases unless such statements are accompanied by a disclaimer that past results are not indicative of future results, and that any damages recovered and ultimate outcomes are fact specific and case dependant;
- Suggesting “qualitative superiority” to other lawyers;
- Unjustifiably raising expectations;
- Suggesting or implying that the lawyer providing services is aggressive;
- Disparaging or demeaning other individuals, groups, organizations, or institutions;
- Taking advantage of vulnerable groups or persons;
- Using testimonials that contain “emotional appeals”.
In addition to the above, lawyers cannot advertise that they are an expert or a specialist in a particular legal practice area, such as labour law or family law, unless they have been certified as a “Specialist” by the LSUC.
Lawyers may, however:
- advertise their areas of practice, including any that they prefer to practice;
- indicate that their practice is restricted to a certain practice area or areas;
- include a description of the lawyer’s or the firm’s proficiency or experience in a particular practice area.
In all such instances, any such representations made cannot be misleading, and must be “demonstrably true”.
Lawyers may advertise their fees. However, where a lawyer or firm advertises fees, that advertising must:
- be reasonably precise with respect to what specific services are offered for each quoted fee;
- be clear if additional amounts, such as disbursements or taxes, will be charged in addition to the fee;
In addition, where fees are advertised the lawyer and/or firm must adhere to the advertised fee in every matter.
Complaints about Lawyer Marketing
According to the Advertising and Fee Arrangements Working Group’s June 2016 interim report, the Law Society has received or initiated more than 390 complaints pertaining to lawyer and paralegal advertising since 2011.
A specialized investigation team has been established to look into and respond to these complaints. The team’s mandate is to:
- identify licensees who may be in violation of the current Rules on advertising;
- contact the licensee with the goal of resolving a violation where that violation is minor (for instance, where is involves a minor wording or language issue);
- refer such minor matters for further investigation where they cannot be resolved directly with the licensee;
- develop a process to follow up on resolved matters;
- to investigate matters where identified issues are significant;
- address the matter by staff, or refer to the Proceedings Authorization Committee where further regulatory action is required following an investigation;
- initiate disciplinary proceedings in serious cases.
It is evident that the Law Society has been taking, and will continue to take potential violations of the Rules surrounding marketing and advertising seriously. It is critical for lawyers and law firms to market themselves effectively while adhering to their professional obligations.
Contact Umbrella Legal Marketing for Your Marketing Needs
At Umbrella Legal Marketing, we specialize in and are passionate about helping firms with marketing and re-branding, while ensuring that the Rules of Professional Conduct are followed. We only work with lawyers and law firms. We understand the legal market, the legal community, as well as the ethical and practice standards that govern the profession. We will work with you and your firm to maximize your presence online, and attain more visibility.
Contact us by email at firstname.lastname@example.org or at 416 356 4672.