Walking the Fine Ethical Line with Lawyer Advertising and Marketing

Understanding why lawyers are prohibited to advertise

The legal profession has long restricted the ability of lawyers to advertise, distinguishing the legal services market from other service markets. Avoiding commercial advertisements, as a source of information on the legal market, was a part of the market’s distinctiveness.[1] However, to this day, advertising and solicitation among lawyers is one of the most contentious areas in legal ethics.

Is market entry obstructed or assisted by advertising? Does the legal profession exhibit fraudulent promotion and is it more prone to such activities than other professions? What are the ethical considerations to be addressed and understood, if any? Do we need to update the national rules of professional conduct? The question of lawyer advertising is just the tip of an iceberg.

This paper is to answer these questions in the light of the relevant research on legal advertising, offer an overview of the legal restrictions on advertising in Bosnia and Herzegovina (BiH)[2] and finally, propose much-needed amendments to the national rules of code of conducts.

 

“The most worthy and effective advertisement possibleis the establishment of a well – merited reputation for professional capacity and fidelity to trust.”

This is a general prohibition against legal advertising, released in Canons of Professional Ethics of the American Bar Association in 1908, justified on the grounds that advertising was unnecessary[3] and that the aim of the prohibition is to protect the image of the profession and to prevent undue influence. Arguably, building a good reputation may have been an effective form of promotion but it could hardly be the most effective method for every lawyer, especially for new entrants that cannot rely on personal contacts alone.

To grasp the logic behind the prohibition, it is necessary to understand the historical background. These rules and prohibitions can be traced back to the English Bar etiquette in the 1800s, where the legal profession is considered a public calling, rather than the commercial profession.[4] More precisely, this prohibition has its roots in the English class structure; a structure that operated in the form of a cartel.[5] At a certain point, mostly all aspiring barristers of Inns of Courts were the sons of wealthy families and this was happening at a time when the upper classes slandered “trade” as such, and commercial competition was considered crass.[6] Rather convenient.

This raises doubts in the argument that advertising and solicitation inherently lead to mistrust and threatens to discredit the legal profession. Several authors that argue against advertising claim that the dignity and reputation of the lawyer would suffer. However, historical background and the current state of legal practices across a number of jurisdictions lead us to the conclusion that the respective prohibitions are in place for a simple and quite a commercialized reason. That reason is to maintain the competitive advantage of already established or “inherited” law firms in the legal market. It seems that has little to do with the noble notions such as equal access to justice or the legal profession’s reputation. The access to justice is more likely to be undermined by the strict compliance with the obsolete ethics rules, which in turn keep the public uninformed of the importance and availability of legal services. In contrary, much more would be accomplished by free and unrestricted advertising and marketing.[7]

  1. Legal Ethics of Advertising and Restrictions

In general, the legal profession has usually been subject to close regulation providing for either a total ban on advertising or restrictions, both on manner and content.[8] For example, in the USA, lawyers advertise their services to obtain clients in various ways. The United States Supreme Court held that lawyers have the right to First Amendment protections of commercial free speech and that the States may not ban them from advertising with certain guidelines requiring lawyers to advertise their services in ways that are not false or misleading.[9] On the other hand, regulation of lawyer advertising in the EU is stricter than in the USA and it has been noted that countries in the north tended to be lightly regulated and countries in the south were heavily regulated.[10] The European Commission condemned total barriers to advertising in the legal profession, advocating for liberalisation of the legal profession through the elimination of the barriers to advertising in order to ensure their free competition on the market.[11] On this note, many EU countries have abandoned traditional rules on lawyer advertising in terms of allowing some of advertising but it is far from the relaxed regulations as in the USA.

As for the state of practice in BiH, advertising is more restrictive and more heavily regulated than in the rest of the EU countries, providing the lawyers with a “laundry list”. In Federation of BiH, lawyers are prohibited to advertise their activities and solicit clients, in particular, they are prohibited to use a third party or any other intermediary to solicit new clients; to advertise in the media; to post adds or to send circular letters; or any other advertising that would have been done in an inappropriate manner for a legal profession, by unacceptable means or with unlawful or untruthful content.[12] In addition, according to the FBIH Rulebook on the Bar Examination, information allowed to be published on lawyer’s website are limited to a lawyer’s name, professional qualifications, qualification date, specialization in a legal area and the knowledge of foreign languages, with an obligation to notify the Bar Association once website is fully operational.[13] In Republika Srpska, advertising is regulated similarly. The lawyers are banned from publicly praising their knowledge and skills, particularly, to emphasize, share or present themselves in electronic form or publicly or to make any other announcements offering its services.[14]

  1. Advertising and Delivery of Legal Services

Legal advertising has a positive and negative effect on the profession, and this article advocates for the benefits thereof. In short, legal advertising can help raise awareness of the general public on the legal issues and the availability of legal services and it may provide a practical service to people in search of legal advice. The public needs information about the services that attorneys have to offer and the fees they charge.[15] The first comprehensive market research conducted in the USA[16], on the incidence of personal legal problems and the use of lawyers, indicated that the public was generally unaware of their “legal problems”, did not have sufficient methods to seek out qualified legal assistance, and is unfamiliar and predominantly concerned on the cost of legal services.[17] The situation is rather similar in BiH. Based on the most recent research, the method frequently used in the selection of a law firm was recommendation or personal awareness of the office (brand). Furthermore, 82% of respondents said that the recommendation of family, friends or colleagues is the primary source of information, and for 16% of the respondents, a crucial factor is personal knowledge or brand and reputation of the law office. While 37% of the respondents said that reputation is the first criteria in law firm selection and 35% respondents said this was actually the most important criteria.[18] Also, for 43% of respondents, the price was an important criteria. However, despite the fact that the price is regulated and publicly available; the clients are unsure and afraid of how much will they be charged. The official tariff is difficult to read and interpret for a non-lawyer person, which adds to the list of the reasons why people refrain from seeking legal help and ask for legal assistance only when it is a moment too late. Having said this, some possible arguments for the marketing liberalisation of the legal profession and in favour of amendments to the national code of conducts and relevant by-laws are:

  • Opening of the Legal Market for New Entrant Lawyers

One of the key principles of FBIH Code of Conduct[19] is that lawyers are recommended for their expertise, ability, success, reputation and trust, gained through their work and behaviour. This seems to be one of the key arguments against the advertising. However, this ban on commercial advertising perpetuates the market portion of established lawyers and advertising may permit rather than prevent the young attorney from competing in the market.[20] It can be considered quite selfish to prevent young lawyers from acquiring a share of legal business and to prevent information about the availability of legal services from reaching the masses. This is especially difficult for new entrants as they cannot rely on their prior experience and successes. How do they stand a chance in competing with thousands of already established lawyers and competing solely on personal recommendation and word of mouth marketing? This seems like an oxymoron and quite convenient to keep the legal market quite closed and restricted to the existing and established lawyers. The situation is similar to the 1800s in England.

  • Advertising as a Source of Information and Raising Awareness on Legal Issues

The critics suggest that advertising will undermine the legal profession’s sense of dignity and encourage a decline in the quality of service.[21] Surely, advertising and marketing can be demeaning and degrading for profession’s public perception if used aggressively and untruthfully but that is the case with any profession. The best analogy that can be drawn is advertising in tax, banking, brokerage and accounting services. Since 1918, American banking services have been advertised. The dignity and the reputation of bankers do not appear to have suffered.[22] On the contrary, if used well and properly, advertising may improve public perception of lawyers since surveys indicate that lawyers presently enjoy low public esteem.[23] It seems that unfamiliarity with lawyers is the cause of contempt towards them. For both lawyers and accountants, studies suggest that a majority of people do not know or understand what these professionals do.[24] Based on research, persons with personal experience in doing business with lawyers tend to rate them higher than those that did not have any prior experience. Hence, advertising can help in informing the public of what lawyers do and when one is required, and it may also increase the volume of legal business, especially among first time-users. It is believed that significant public contact with lawyers would improve public perception of the profession.[25]

  1. Conclusion

Legal advertising does not mean a degradation of the legal profession nor does it imply unethical consequences. Clients today need information about the types of services lawyers provide in the areas of their expertise, and the fees they charge, the exact reason why advertising can be and is beneficial to the legal profession. Advertising will help new entrants and increase competitive pressure, while at the same time informing the inexperienced public of the choices they have.[26]

Clearly, abuses will happen. Unscrupulous advertising is merely a manifestation of the individual lawyers within the legal profession and it should not be generalized.[27] However, advertising should not be prohibited or overly restricted, but clear, uniform standards should be put in place.

It seems that walking the fine ethical line with lawyer advertising and marketing is not that hard at all and restrictions should be eliminated in the BiH legal system as well as across the EU as competitive advertising can be truthful, in good taste and not be misleading.[28]

***

Synopsis

Emina Zahirović-Pintarić is the representative of European Research & Training Network for Bosnia and Herzegovina and she currently works as the legal technical expert for International Financial Corporation (IFC), World Bank Group and USAID Regional Project of the establishment of National Trade Facilitation Committee in the process of accession of BiH to World Trade Organisation (WTO). She holds a Bachelor’s degree in Law at University of Sarajevo and LLM in International Law at University of Westminster in London, UK. She has seven years of diverse legal experience in private, non-profit and governmental sector, acting in advisory, supporting and consultancy-based positions. She practiced commercial, corporate, competition law, data protection law, public interest law, immigration law and human rights law. She worked as an associate for international, regional and national law firms such as Descartes Solicitors in the UK, BDK Attorneys at Law from Serbia, Wolf Theiss, Transparency International BiH, and Official Gazette BiH. Emina can be reached at emina.zahirovic88@gmail.com.

[1] Mitchell, Chester N. "The Impact, Regulation and Efficacy of Lawyer Advertising." Osgoode Hall Law Journal 20.1 (1982) : 119-137. http://digitalcommons.osgoode.yorku.ca/ohlj/vol20/iss1/4, accessed on 23 November 2018

[2] Author’s note: Considering the complex constitutional organization of Bosnia and Herzegovina, consisting of the state level of BiH, two entities (Federation of Bosnia and Herzegovina and Republika Srpska) and District Brcko District, this research refers to relevant Code of Conducts of FBIH and RS and it will be referred jointly as BiH, unless different solutions are provided, which will be indicated respectively. Also, it should be noted that Advocacy Law on a state level has not been adopted yet. It is in the parliamentary procedure as of July 2018.

[3] Andrews, Birth of a Salesman: Lawyer Advertising and Solicitation (Chicago: ABA Press, 1980) at p 1.

[4]„History of Attorney Advertising”, http://sociallyawkwardlaw.com/attorney-advertising-regulation/history-of-attorney-advertising/, accessed on 25 November 2018

[5] Andrews, Birth of a Salesman: Lawyer Advertising and Solicitation (Chicago: ABA Press, 1980) at p 1.

[6] Andrews, Birth of a Salesman: Lawyer Advertising and Solicitation (Chicago: ABA Press, 1980) at p. 85

[7] Morley Walker, Advertising by Lawyers: Some Pros and Cons, 55 Chi.-Kent L. Rev. 407 (1979), available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol55/iss2/7, accessed on 22 November 2018

[8] A. Caron „The Legal Profession between Regulation and Competition“, January 2008, available at http://static.luiss.it/siti/media/1/20080121-Caron_Competition-legal-profession.pdf, accessed on 2 December 2018

[9] A. Filabi, G.D. Green, K.G. Standard “Comparative Legal Ethics: The United States and the European Union”, available at http://www.nysba.org/Sections/International/Seasonal_Meetings/Paris_2016/Coursebook/Plenary_2/Comparative_Ethics_Panel_Paper.html, accessed on 25 November 2018

[10] Competition and the European legal professions, J. Goldsmith Secretary General of the Council of the Bars and Law Societies of the European Union (CCBE), available at https://assets.budh.nl/advocatenblad/article_pdf/20084662/basis_pdf_oid.pdf, accessed on 24 November 2018

[11] Ibid.

[12] Article 27 (4) of the Code of Ethics of Bosnia and Herzegovina, published on 17 May 2005, available on http://www.advokomfbih.ba/kodeks-advokatske-etike/, accessed on 13 August 2018

[13] Article 27 (3) of the Code of Ethics of Bosnia and Herzegovina

[14] Code of Ethics of the Bar Chamber of Republika Srpska, available at http://advokatskakomora.ba/latn/wp-content/uploads/2016/06/KODEKS-ETIKE-ADVOKATA-AK-RS_lat.pdf, accessed on 28 November 2018

[15] Dobrowalski, Lauren (1994) "Maintaining the Dignity of the Profession: An International Perspective on Legal Advertising and Solicitation," Penn State International Law Review: Vol. 12: No. 2, Article 5., Available at: http://elibrary.law.psu.edu/psilr/vol12/iss2/5, accessed on 26 November 2018

[16] See generally B. CURRAN and F. SPALDING, THE LEGAL NEEDS OF THE PUBLIC (1974).

[17] Morley Walker, Advertising by Lawyers: Some Pros and Cons, 55 Chi.-Kent L. Rev. 407 (1979), Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol55/iss2/7, accessed on 25 November 2018

[18] J. Poturović „Uticaj procesa odlučivanja klijenata o angažmanu advokatskih kancelarija, te zakonskih i etičkih ograničenja, na korištenje marketinških strategija advokata pojedinaca u Kantonu Sarajevo“, februar 2014., magistarski rad, available at https://www.academia.edu/13075829/Uticaj_procesa_odlu%C4%8Divanja_klijenata_o_anga%C5%BEmanu_advokatskih_kancelarija_te_zakonskih_i_eti%C4%8Dkih_ograni%C4%8Denja_na_kori%C5%A1tenje_marketni%C5%A1kih_strategija_advokata_pojedinaca_u_Kantonu_Sarajevo, accessed on 26 Novemer 2018

[19] Note: The Code of Ethics of Republika Srpska does not provide for such principle.

[20] Morley Walker, Advertising by Lawyers: Some Pros and Cons, 55 Chi.-Kent L. Rev. 407 (1979), available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol55/iss2/7, accessed on 22 November 2018

[21] Ibid.

[22] Ibid. p. 8

[23] Mitchell, Chester N.. "The Impact, Regulation and Efficacy of Lawyer Advertising." Osgoode Hall Law Journal 20.1 (1982) : 119-137.http://digitalcommons.osgoode.yorku.ca/ohlj/vol20/iss1/4, p.10.

[24] Ibid.

[25] Mitchell, Chester N.. "The Impact, Regulation and Efficacy of Lawyer Advertising." Osgoode Hall Law Journal 20.1 (1982) : 119-137.http://digitalcommons.osgoode.yorku.ca/ohlj/vol20/iss1/4, p.10.

[26] Ibi Mitchell, Chester N.. "The Impact, Regulation and Efficacy of Lawyer Advertising." Osgoode Hall Law Journal 20.1 (1982) : 119-137.http://digitalcommons.osgoode.yorku.ca/ohlj/vol20/iss1/4, p.10.d.

[27] Dobrowalski, Lauren (1994) "Maintaining the Dignity of the Profession: An International Perspective on Legal Advertising and Solicitation," Penn State International Law Review: Vol. 12: No. 2, Article 5., Available at: http://elibrary.law.psu.edu/psilr/vol12/iss2/5, accessed on 26 November 2018

[28] Morley Walker, Advertising by Lawyers: Some Pros and Cons, 55 Chi.-Kent L. Rev. 407 (1979), available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol55/iss2/7, accessed on 22 November 2018