At the February 2017 Convocation meeting, the Law Society of Upper Canada (LSUC) amended its conduct rules governing the advertising of legal services.
The new advertising rules are intended to strengthen existing advertising and marketing requirements and provide guidance on best practices in advertising. These changes come after months of review, meetings, and interim reports by LSUC’s Advertising and Fee Arrangements Working Group (“Working Group”).
The Working Group was concerned with the proliferation of potentially false or misleading advertising by Ontario lawyers and paralegals. The LSUC expects all licensees to comply with both the letter and the spirit of the applicable ethical rules, and the Working Group’s recommendations regarding advertising are designed to further clarify these responsibilities.
- A lawyer can only market legal services if 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 is consistent with a high standard of professionalism.
- “Marketing” includes: advertisements and other similar communications in various media as well as firm names (including trade names), letterhead, business cards and logos;
- Examples of marketing that may violate these rules:
- Stating an amount of money that the lawyer has recovered for a client, unless that statement is accompanied by a further statement that past results do not indicate future results, and that the amount recovered and other litigation outcomes will depend on the specific facts in individual cases;
- Referring to the degree of success in past cases, unless that statement is accompanied by a further statement that past results do not indicate future results, and that the amount recovered and other litigation outcomes will depend on the specific facts in individual cases;
- Suggesting “qualitative superiority” to other lawyers;
- Raising expectations;
- Suggesting/implying that the lawyer is “aggressive”;
- Disparaging or demeaning other persons, groups, organizations, or institutions;
- Using testimonials or endorsements which contain emotional appeals.
- These requirements apply to different forms of marketing, including advertisements about the size, location and nature of the lawyer’s practice and about awards, rankings and endorsements from third parties.
- Examples of marketing that does violate these rules:
- Marketing of services that the lawyer is not able to perform to the standard of a competent lawyer;
- “Bait and switch marketing”: i.e.- marketing that attracts clients through offers of services, prices, or terms that are different than those usually provided to clients;
- Marketing that fails to clearly and prominently disclose the practice of referring clients to other lawyers for a fee (or other benefit);
- Failing to expressly indicate whether the marketed services will be provided by licensed lawyers or licensed paralegals (or both);
- Referring to awards, rankings, and third party endorsements* that are not bona fide or that are likely to be misleading, confusing, or deceptive;
- Taking advantage of a vulnerable person or group.
*Awards and Rankings
- Awards” and “rankings” includes superlative titles such as “best, “super”, “#1” and similar
- Awards, rankings, and third party endorsements that violate this rule include those that:
- Do not genuinely reflect the performance of the lawyer/the quality of services provided by that lawyer, but seem to do so;
- Are not the result of a “reasonable evaluative process”;
- Are given, in part, as a result of payment of a fee or other benefit rather than as a result of a legitimate evaluation of the performance and quality of the lawyer;
- The lawyer could not demonstrate compliance with this rule (at the time of reference to the award, ranking, or third party endorsement).
- Specific care should be taken regarding awards, rankings, and third party endorsement in mass advertising including internet advertising, newspaper advertising, television advertising, and on billboards, taxis, buses, etc.
- In the context of mass advertising (see above), specific care must be taken to ensure that references to awards, rankings, and third party endorsements are particularly clear and straightforward since there is little chance for clients to appreciate context.
- References to awards and honours that are “genuine reflections of professional or civic service” do not violate the rule. For example, mentioning that a lawyer has been honoured for their service by the Federal or Provincial government, the Law Society, or a professional organization.
- Lawyers should take care to ensure that such awards and honours reflect a “genuine and responsible assessment of the lawyer in the public interest”.
- Any reference to awards, rankings, and third party endorsements must:
- be demonstrably true, accurate and verifiable;
- not be misleading, confusing, or deceptive, or likely to mislead, confuse or deceive; and
- be in the best interests of the public and is consistent with a high standard of professionalism.
- Marketing must be consistent with a high standard of professionalism.
- Marketing practices must conform to the requirements of Ontario’s human rights laws.
- Examples of marketing that may be inconsistent with a high degree of professionalism include images, languages or statements that:
- Are racist, violent, or sexually offensive;
- Take advantage of a vulnerable person or group;
- That refer negatively to other licensees, the legal profession, or the administration of justice.
- A lawyer marketing legal services shall (i.e. must) specifically identify that they are licensed as a lawyer in all of their marketing materials.
- The public must be aware that there are both lawyers and paralegals that are licensed by the Law Society, and must be able to understand whether they are retaining a lawyer or a paralegal.
Second Opinion Services
- Marketing of second opinion services is prohibited.
- While providing a second opinion is a valuable service to clients, marketing of such services is commonly carried out in order to obtain a retainer not to provide a second opinion. This is an inappropriate “bait and switch” tactic.
- A lawyer may advertise fees charged for legal services where the advertising:
- is reasonably precise as to the types of services offered for each fee quoted;
- states whether other amounts (such as disbursements and taxes) will be charged in addition to the fee;
- the lawyer strictly adheres to the advertised fee in every single applicable case.
The full report of the Professional Regulation Committee can be accessed here.
Contact Umbrella Legal Marketing for Knowledgeable Assistance with your Firm’s Marketing Needs
At Umbrella, legal marketing is all we do. We specialize and are passionate about helping law firms with their marketing needs, while ensuring that the Rules of Professional Conduct and the ethical standards of the profession are maintained. We understand the legal market, the legal community, and the LSUC’s guidelines and expectations. This deep knowledge of the industry is reflected in all aspects of the customized legal marketing strategies we create for our clients. We work hard to position our clients as respected authorities in their practice areas while keeping within the marketing standards of the profession.
Contact us by email at email@example.com or at 416 356 4672 for more information.