“The prohibition of advertising serves only to restrict the information that flows to consumers… Advertising is the traditional mechanism in a free market economy for a supplier to inform a potential purchaser of the availability and terms of exchange.
“[…] In the absence of advertising, an attorney must rely on his contacts with the community to generate a flow of business. In view of the time necessary to develop such contacts, the ban in fact serves to perpetuate the market position of established attorneys…”
Columnist and barrister Dr Emir Crowne takes aim at ban on attorney advertising in Trinidad and Tobago:
On 7 January 2018 the President of the Law Association of Trinidad and Tobago (the “LATT”), Mr Douglas Mendes SC, issued an email to the LATT’s membership reminding us of the absolute prohibition against attorney advertising set out in Part B of the Third Schedule to the Legal Profession Act, Chap 90:03 (1986). His email indicated that:
“The Council of the Law Association has noted with increasing concern a proliferation of publications in the print and social media which appear to violate the Code of Ethics governing advertising by members of the profession as set out in clauses 5 and 6 of Part B of the Third Schedule to the Legal Profession Act.
Members are reminded that a breach of these clauses amounts to professional misconduct in respect of which disciplinary proceedings may be brought before the Disciplinary Committee. Members are also reminded of the Protocol on the Exercise of the Disciplinary Powers of the President of the Law Association recently circulated to the membership.”
Clause 5 in particular sets out a complete prohibition against lawyer advertising. It states that an “Attorney-at-law shall not in the carrying on of his practice or otherwise permit any act or thing which is likely or is intended to attract business unfairly or can reasonably be regarded as touting or advertising.”
However, in my respectful view, the complete prohibition against lawyer advertising is unconstitutional. The prohibition against lawyer advertising is a direct intrusion into the constitutionally protected right to “freedom of thought and expression” (ibid, ss 4 (i)). The mere fact that such expression would be commercial in nature, does not change the analysis.
The US Supreme Court grappled with this very issue in Bates v State Bar of Arizona, 433 U.S. 350 (1977) (“Bates”) and held that a similar prohibition in Arizona offended lawyers’ right to free speech. Justice Blackmun, in delivering the majority opinion of the Court, set out the somewhat elitist rationale for the restriction:
“It appears that the ban on advertising originated as a rule of etiquette, and not as a rule of ethics. Early lawyers in Great Britain viewed the law as a form of public service, rather than as a means of earning a living, and they looked down on ‘trade’ as unseemly.” (ibid, p 371 citing H Drinker, Legal Ethics 5, 210-211 (1953))
But as the Court rightly noted:
“[…] Habit and tradition are not, in themselves, an adequate answer to a constitutional challenge. In this day, we do not belittle the person who earns his living by the strength of his arm or the force of his mind.
“Since the belief that lawyers are somehow ‘above’ trade has become an anachronism, the historical foundation for the advertising restraint has crumbled.” (ibid, pgs 371 – 372)
The Court emphasised that the public, and the administration of justice itself, is actually harmed when lawyers cannot advertise their services—the fees for those services in particular. Justice Blackmun held that:
“The alternative—the prohibition of advertising—serves only to restrict the information that flows to consumers. Moreover, the argument assumes that the public is not sophisticated enough to realise the limitations of advertising, and that the public is better kept in ignorance than trusted with correct but incomplete information. We suspect the argument rests on an underestimation of the public. In any event, we view as dubious any justification that is based on the benefits of public ignorance.
“[…] But advertising by attorneys is not an unmitigated source of harm to the administration of justice. It may offer great benefits. Although advertising might increase the use of the judicial machinery, we cannot accept the notion that it is always better for a person to suffer a wrong silently than to redress it by legal action…
“Advertising can help to solve this acknowledged problem [of 70% of the population not being reached or adequately served by the legal profession]: advertising is the traditional mechanism in a free market economy for a supplier to inform a potential purchaser of the availability and terms of exchange. The disciplinary rule at issue likely has served to burden access to legal services, particularly for the not-quite-poor and the unknowledgeable.” (ibid, pgs 374 – 377)
So where does this leave us? In my view, the complete ban against lawyer advertising cannot survive constitutional scrutiny. It is true that the LATT should retain some jurisdiction to regulate advertising that may be fraudulent or misleading, but the complete ban should be re-considered.
The prohibition is rooted in an antiquated and elitist ideology that the practice of law rises above other businesses or trades. In the end, however, the blanket prohibition against advertising harms the public and impedes access to justice.
For instance, there are many matters that are amenable to a flat fee structure; the public should have access to that information and have the benefit of selecting counsel that meets their needs, both financially and legally.
Even the UK, which we relish comparing ourselves to, permits legal advertising. It is time for the LATT to grapple with the issue and the benefits of advertising and open competition. As the US Supreme Court rightly pointed out in Bates:
“In the absence of advertising, an attorney must rely on his contacts with the community to generate a flow of business. In view of the time necessary to develop such contacts, the ban in fact serves to perpetuate the market position of established attorneys. Consideration of entry barrier problems would urge that advertising be allowed so as to aid the new competitor in penetrating the market.” (ibid, pg 378)
That “the ban in fact serves to perpetuate the market position of established attorneys” should not be overlooked. The ‘inner bar’, which apparently is ‘stretched thin’, may have a vested interest in maintaining the status quo.
In the absence of meaningful competition—through advertising—the ‘market dominance’ of the inner bar prevails.
In the end, we can no longer pretend that the practice of law is some closed circle of ‘friends’. It is a vibrant and diverse group of individuals who seek to further the administration of justice, the public good and earn a livelihood.
Any other view is simply naïve, outdated and perhaps self-serving to a select few.