A. INTRODUCTION
10.1 In our Discussion Paper, Advertising and Specialisation, published in 1981, we tentatively suggested a number of changes in the restrictions on individual advertising by solicitors. We outline those suggestions below, and we mention some of the responses which were made to them. A number of suggestions and responses on points of detail are referred to in subsequent chapters.
B. OUR SUGGESTIONS
10.2 We discussed in the Paper a number of advantages and disadvantages of the present restrictions on advertising. 1 In the light of that discussion we 2 formed the tentative view that the present restrictions should be relaxed substantially. We described three general approaches which in our view, merited particular consideration. 3 We referred to them as the Narrow, Medium and Broad approaches, according to the range of advertising which they would permit These three approaches correspond to the third, fourth and fifth of the categories which we described at the end of the previous chapter of this Report; it was our view that the first and second of those five categories were excessively restrictive and did not merit further consideration.
Three Possible Approaches
10.3 Under the Broad Approach, 4 advertising was to be required to comply with four basic rules, namely that
- it must not be false or misleading in any material particular;
- it must not claim superiority for the advertising solicitor over any or all other solicitors;
- while it may make clear the intention of the solicitor to seek custom, it must not be vulgar, sensational or otherwise of such a character as to be likely to bring the profession into disrepute; and
- it must not contain testimonials or endorsements concerning the advertising solicitor.
10.4 Under the Medium Approach, 5 the four basic rules mentioned above were to be supplemented by restrictions applying to advertisements about four special areas, namely
- fields of practice;
- fees;
- clientele; and
- speed of service.
In these special areas, only specified types of information could be advertised and certain requirements about terminology would have to be observed.
10.5 Under the Narrow Approach, 6 the four basic rules would have to be observed, but in addition advertisements in all areas (rather than only in the four special areas mentioned above) would be confined to certain specified types of information In the four special areas these types of information would be the same as under the Medium Approach.
Our Tentative Preferences
10.6 We suggested in our Paper that the Medium Approach is preferable to the Narrow Approach and, at least in the short term, to the Broad Approach. 7 We said, however, that we were not opposed to the adoption of the Narrow Approach on an interim basis, accustoming the profession to change. But we considered that if such an approach was adopted, it should not become entrenched without a proper review after a fixed period of, say, two years. We emphasised that the Narrow Approach would allow certain types of advertisement in the four special areas - fields of practice, fees, clientele and speed of service. It was our view that if these areas were omitted the Narrow Approach would not constitute a sufficient relaxation of the restrictions, even on an interim basis.
Particular Media
10.7 In addition to these suggestions about a general approach, we made a number of suggestions about advertising in particular media. 8 We mention some of them below.
10.8 Radio and Television. The majority of us said that we were presently of the view that advertising should be permitted on radio and television to the same extent as in print, although we did not expect that such advertising would become extensive. 9 Mr Conacher, however, did not favour advertising on radio and television being permitted. 10
10.9 Signs and Brochures. We suggested that, generally speaking, restrictions on the content of office signs and brochures should be the same as for other forms of advertising, such as newspaper advertisements. 11
10.10 Directories.We made a number of detailed suggestions for the inclusion of additional information about solicitors in the Telephone Directory (both Yellow and White Pages), the Legal Services Directory, and the Law Almanac. 12 We also suggested that the existence of the Legal Services Directory should be advertised more widely than at present and on a regular or recurrent basis. 13
C. SOME RESPONSES
10.11 A number of responses, both formal and informal, were elicited by our Discussion Paper. Each of them has been taken into account in the formulation of this Report. We mention below two of the formal responses which we received in relation to individual advertising by solicitors.
10.12 In its response, 14 the Law Society of New South Wales reiterated its wish to relax the present restrictions by introducing new regulations along the lines which it had proposed earlier. 15 These proposed new regulations reflect an approach which is narrower than the Narrow Approach described in our Paper in particular, they would allow very little advertising in relation to the four special areas. The Society did not indicate approval of any further relaxation beyond its proposed new regulations, and it specifically rejected our Medium Approach. 16 It did not agree with our suggestion that solicitors should be permitted to ,advertise on radio and television, 17 but it went some way towards our suggestions concerning signs, brochures and directories by indicating that restrictions on advertising in these media “should be the same, so far as is possible, as for other printed publications”. 18
10.13 Another response was from Edward H O’Brien Pty Ltd, the advertising contractor for the Yellow Pages of the telephone directory. 19 The company’s submission referred to the Law proposed new regulations and pointed out that they are more restrictive in relation to advertisements in the Yellow Pages than advertisements in newspapers and periodicals. The company said, as we had in our Discussion Paper, that the restrictions for the Yellow Pages should be the same as for printed publications generally.
10.14 The New South Wales Bar Association’s response to our Paper confined itself to our suggestions in relation to barristers. 20 We refer to it in chapter 15.
FOOTNOTES
1. See chapter 9.
2. Mr RD Conacher expressed reservations in relation to some of the views expressed by us in the Paper. Due to his subsequent retirement from the Commission he has not been involved in the preparation of this Report.
3. See pp.137-145.
4. For a full description of this approach, see Advertising and Specialisation, pp.137-137.
5. For a full description of this approach, see Advertising and Specialisation, pp.138-140.
6. For a full description of this approach. see Advertising and Specialisation, pp.142-143.
7. For our reasons, see Advertising and Specialisation, pp.145-148.
8. For the suggestions in detail, see Advertising and Specialisation, chapter 11.
9. See pp.153-154.
10. See p.154 and chapter 15.
11. See pp.154-155.
12. See pp.155-160.
13. See p.159.
14. “Advertising and Specialisation” (Submission No.412).
15. P.15.
16. P.19.
17. Pp.21-22.
18. P.22.
19. Submission No.415.
20. “Advertising and Specialisation” (Submission No.406).
