On February 28, 2017, the Professional Regulation Committee of the Law Society of Upper Canada presented a report to Convocation with a series of recommendations designed to create a new “code of conduct” for lawyer advertising. A copy of this report is attached at the end of this post.
The Rules of Professional Conduct already set out the parameters for lawyer advertising, which begs the questions: Why does the LSUC think it necessary to create a new set of regulations. And why now?
The Report cites complaints and investigations related to claims and awards featured in television, radio and outdoor advertising primarily by personal injury lawyers. Personal injury lawyer advertising is ubiquitous. You can’t turn on the radio, drive on any roadway in Ontario, or even visit the men’s room without seeing the smiling face of a personal injury lawyer claiming to be Toronto’s top PI firm, and flaunting an award of one kind or another.
I won’t comment on the creative excellence of all this advertising, except to say that it all blends together into one sea of “top settlements” and “you don’t pay until we win”. I will, however, concur with the essence of the LSUC’s concerns that the claims made in the advertisements are unsupported and, in some cases misleading, and that the awards cited are not genuine. They are, in fact, awards that you pay to have “awarded” to you based on some metric created by a clever marketing firm to extract sums of money from lawyers whose egos drive them to pursue an ever-escalating quest for fame and, of course, fortune.
Personal injury lawyers should not be permitted to promote phony awards or claims of superiority. It’s false and misleading advertising. But we don’t need the LSUC to launch an investigation and spend vast amounts of time and money on creating a Report to Convocation with a bevy of new restrictions to be imposed on lawyers who have the effrontery to plaster their names on the tops of taxi cabs and over urinals. The Rules of Professional Conduct already prohibit claims of superiority over another practitioner, and claims regarding results. The LSUC need only remind its members of these rules and warn them not to cross the line – or discipline them if they do.
More important, regulatory bodies already exist to ensure that false or misleading advertising is removed from the marketplace. The first such body is the Advertising Standards Council of Canada. Any consumer who believes an advertisement of any kind contains false or misleading claims (or is offensive or in bad taste, or just doesn’t like the creative, for that matter) can click on the link below and make a complaint to Ad Standards, who will investigate the complaint and compel the advertiser to correct or withdraw the offending ad if the complaint is upheld. http://www.adstandards.com/en/ConsumerComplaints/howToSubmitAComplaint.aspx
The second body is Telecaster, who is responsible for reviewing and approving all television advertising, and must assign a telecaster ID approval number before a broadcaster is allowed to air the advertisement.
Both bodies require that the advertiser be able to support the validity of all claims presented in the advertising. Telecaster may even require an indemnity letter wherein the advertiser takes responsibility for the validity of the claims. If it can be demonstrated that the claims are not supported, the advertiser’s Teecaster number can be revoked and PRESTO!, they’re off the air.
From where I sit, the advertising industry is already sufficiently regulated. The LSUC does not need to appoint itself an arbiter of advertising standards above and beyond these two worthy and inescapable entities. Should a consumer address a complaint about a lawyer’s ad to the LSUC’s attention, the LSUC ought to refer the consumer to Ad Standards or Telecaster. Or the LSUC may file its own complaint to these bodies.
It seems that the LSUC is of the belief that lawyers breathe rarified air and drink a special blue kool-aid that elevates them to an echelon that can only be regulated by its own exalted brotherhood. Hence the special report on lawyer advertising and recommendations on how the LSUC can extend its control over its membership by passing judgment on the worthiness of lawyer advertising messages.
Thankfully, the report stopped short of endowing LSUC with the power to determine what advertising is in “good taste” and befitting of the dignity the LSUC is striving to create for lawyers in Ontario. Heaven forbid we should ever descend to the level of American lawyer advertising.
Thank goodness the LSUC is there to tell us what to say and how to behave.
Read the news story below for a precis of the LSUC’s conclusions.