A. INTRODUCTION

14.1 We consider in this chapter two forms of attraction of business by solicitors, namely

• community discussion;
• solicitation.

B. COMMUNITY DISCUSSION

I. Introduction

14.2 We use the term “community discussion” by solicitors to cover statements made by them

• in public (for example, in the press or on television): or
• at meetings of social clubs or other private organisations.

The statements may be on legal or non-legal matters. ¹

14.3 Some forms of community discussion may also constitution advertising or solicitation, in which case they would be subject to the restrictions which we describe in Part III (in relation to advertising) or later in this chapter (in relation to solicitation). In the present section, we consider only those restrictions concerning community discussion as such.

II. The Present Position

14.4 Neither the present regulations in relation to attraction of business, nor the Law Society’s proposed new regulations, deal explicitly, with community discussion by solicitors. But the Law Society has issued many advisory rulings in this area, ² the tenor of which is that generally speaking,

• discussion in public is not permissible unless it is anonymous or does not indicate that the speaker or writer is a solicitor;
• addresses to club meetings are permissible provided that the invitation to deliver them has not been solicited and that they are arranged in good faith for the benefit of club members.

Approval may be sought from the Law Society to depart from these restrictions.

III. Our Discussion Paper

14.5 In our Discussion Paper, Advertising and Specialisation, we described the liberal policy towards community discussion by solicitors which has been adopted by the Law Society in England and the Law Institute in Victoria. ³ The English policy is stated as applying “where a solicitor takes part in radio or television broadcasts, gives a talk or lecture or an interview to the press or contributes an article or writes a letter to the press or writer or edits a book, whether on a legal or non-legal subject.” ⁴ It consists of the following basic principles:

“[S]ubject to the general principle that a solicitor Must have regard at all times to the need to uphold the good name of the profession:

(a) A solicitor may be identified by name, profession and town and when writing to the press or writing a legal text book may give his business address;

(b) the solicitor may give particulars of any special qualifications or specialised knowledge directly relevant to the subject matter of his appearance, broadcast, talk, interview or publication;

(c) a solicitor should not permit to be published anything identifying or likely to identify clients for whom he or his firm acts or has acted except where the subject matter of the broadcast, talk, interview, article or book relates specifically, to the affairs of a client or former client and the publication and reference to the client is with that clients consent and is not designed to advertise the solicitor;

(d) a solicitor should not seek or inspire an interview with the press except on the instructions of his client and on that clients business, he may however, allow himself to be interviewed by the press for the purpose of supplying them with biographical details about himself where the press wish to write up a personality, piece or pen picture about him, provided that he takes care to exclude from the information Supplied to the press any reference to his clients, his type of practice or the name of his firm. He may also supply or permit the press to publish a photograph of himself;

(e) a solicitor must not, with a view to attracting or inviting instructions, enter into correspondence with listeners, viewers or readers who are not already his clients.

Subject to the above mentioned principles, there is no objection to a solicitor permitting prior announcements or subsequent reports to appear in the press relating to his appearances on television or a radio broadcast, a talk, article, letter or book.”⁵

14.6 In our Discussion Paper we suggested that, subject to a few variations, the English policy should be introduced in New South Wales. In its response to our Paper, the Law Society of New South Wales agreed generally with our suggestion although it disagreed with some of our suggested variations.⁶

14.7 Since the completion of our paper the English policy quoted above has been supplemented in four principal respects: ⁷

(i) item (d) has been extended to apply to interviews with all media rather than only with the press;

(ii) solicitors must discontinue interviews of the kind described in item (d), unless the interviewer agrees not to publish a reference to their types of practice or the name of their firm;

(iii) solicitors may give interviews about their work or type of practice, provided they do not supply any information which could identify any of their clients and that they discontinue the interview if the interviewer does not agree to refrain from identifying them or their firm;

(iv) in particular circumstances, solicitors can approach their law society for an exemption from the restrictions in (ii) and (iii) above.

IV. The Need for Change

14.8 In our view, it is in the interests of both the public and the legal profession that solicitors should be allowed to participate in community discussion of issues, and to give some information about themselves which is relevant to those issues and to the perspectives from which they view them. This applies especially to legal issues, upon which lawyers have special qualifications to comment But it is also important that they, like their fellow citizens, should be free to make public comment on non-legal issues and, in doing so, to provide general information about themselves, including their occupation and other biographical details. Moreover, the line between legal and non-legal issues is not easy to draw; a lawyers comment on the main causes of domestic violence, for example, may stem from lengthy experience in family law work.

V. Our Recommendations

14.9 We recommend that, generally speaking, the policy enunciated by the Law Society in England in relation to community discussion by solicitors should be adopted in New, South Wales. We have described that policy in paragraphs 14.5 and 14.7 above. It would probably be sufficient for this policy to be embodied in a statement by the Law Society of New South Wales, rather than in statutory regulations.

14.10 We recommend, however, that the policy in New South Wales should vary in two respects from the English one. First, under the English policy, solicitors are permitted to make public statements in letters or articles written on their initiative, but are prohibited from seeking interviews with media representatives in order to make the same public statements by another means. In our view, both types of conduct should be permissible, and item (d) in the English statement should be varied accordingly. Secondly, items (b) and (d) restrict the types of information which solicitors can disclose about themselves and their practices. If our recommendations in Part III of this Report are accepted, solicitors will be able to advertise other types of information about themselves, we see no reason why they should not be allowed to communicate similar information in the course of making public statements, provided that the information is relevant to the subject matter of the comments. The Law Society of New South Wales agrees with the first of these recommended variations, but it considers that the second variation offers too much scope for abuse by solicitors. ⁸

C. SOLICITATION

I. Introduction

14.11 We use the term “solicitation” to include public or private communications which

• are intended, or are likely, to attract business; and
• are directed towards a particular person or organisation, or to a relatively small number of people.

Advertising is public and is more generally directed than solicitation but the boundary between it and solicitation is one of degree rather than clear-cut. ⁹

14.12 We concentrate in this chapter on three types of solicitation namely solicitation

• by public media (such as newspapers, television and so on; but not including face-to-face communication such as at public meetings);
• by mail (but not including mail addressed by solicitors to present or former clients);
• by the use of business cards.

II. The Present Position

14.13 The present regulations, and the Law Society’s proposed regulations, do not deal specifically with solicitation. The most relevant of the general prohibitions in the regulations are “touting” and “applying for or seeking instructions’, but the prohibition on “unfair attraction of business” may sometimes be of relevance in this context. ¹⁰ In practice, the restrictions on solicitation are to be found primarily in the considerable number of rulings made by the Law Society on various aspects of this topic, ¹¹ rather than in the regulations. We summarise below the effect of those rulings in relation to the three types of solicitation under consideration, and we mention certain respects in which the position in New South Wales differs from that in some other places.

14.14 Public Media. Generally speaking, solicitors in New South Wales are prohibited from engaging in solicitation by public media. By contrast, in some parts of the United States solicitation is subject only to the same restrictions as apply to advertising. ¹²

14.15 Mail to Non-Clients. Generally speaking, solicitors in New South Wales are prohibited from soliciting by mail addressed to persons other than their present or former clients. There are limited exceptions to this general prohibition. For example, a ruling of the Law Society states that, under some circumstances and subject to certain conditions, a solicitor acting for a building society may write to a borrower from that society, offering his or her legal services. ¹³ In many other parts of the world, solicitation of non-clients by mail is generally prohibited. However, it is permissible in some parts of the United States, subject to certain restrictions. ¹⁴

14.16 Business Cards. The present ruling by the Law Society of New South Wales about business cards is as follows:

“There is no objection to the use by a solicitor of a visiting card not larger than normal size, upon which is stated his name, degrees if desired, address and telephone number, with the addition of the description ‘solicitor’ and his firm-name, provided that such use is discreet and is confined to occasions on which it is proper that he should establish his professional identity.” ¹⁵

Similar rulings apply in many other jurisdictions.

III. Some Relevant Considerations

General

14.17 Some types of solicitation can play a valuable role in communicating information about legal services. They can be better directed, and can provide fuller information of greater relevance to the recipient, than may be possible through advertising. They can be substantially more economical than advertising. Indeed, in some circumstances, the achievement of a similar effect by advertising may be exceedingly difficult or even impossible.

14.18 The principal dangers of solicitation arise from the possibility of duress or coercion being brought to bear on particular individuals and, if the solicitation occurs in private, from the reduced possibility of abuses coming to light and being provable. The dangers of duress and of invasion of privacy are particularly acute when the solicitation is face-to-face.

14.19 In the light of these general comments, we turn now to the three types of solicitation under consideration in this chapter.

Public Media

14.20 Public soliciting of instructions from individuals with a common problem can fulfill an important social role in the public interest. Individual would-be litigants can benefit from locating others with a similar cause of action who may be willing to share the expenses of research, negotiation the conduct of a test case or, if feasible, a class action. The judicial system may benefit from a resultant reduction in the number of separate lawyers involved in complex or inter-related actions.

14.21 The desirability of facilitating contact between clients with a similar problem, and of facilitating their use of shared legal resources, can be seen in the recent cases concerning Agent Orange, Thalidomide, and the Mt Erebus aircraft crash. Injustices may presently go unremedied because those suffering them are not aware of the harm caused to them (for example, asbestosis) or believe that nothing can be done at a price which they can afford. Lawyers who offer assistance in these causes should not be unreasonably impeded in contacting prospective clients.

14.22 Our earlier definition of public media excluded face-to-face communications, such as at public meetings. This exclusion greatly reduces the danger of duress or coercion arising from solicitation in addition, it might be desirable to require that any solicitation must be done by, and in the name of, one or more of the potential litigants, rather than by a practitioner. But such a procedure may not always be possible and, in any event, it may be little more than cosmetic.

14.23 In its response to our Discussion Paper the Law Society did not argue that solicitation in public media should be prohibited absolutely, but it said that the approval of the Society should be required on each occasion. ¹⁶

Mail to Non-Clients

14.24 Use of the mail can be a valuable means of communicating information about legal services to particular sectors of the community. It can be directed more precisely than many forms of advertising, and it can provide a convenient document to be kept by recipients until they need a lawyer. In some instances, it may be less cost effective than the use of, for example, local newspapers or radio. But that possibility raises a matter of judgment for the individual practitioner in the particular circumstances; it does not justify a general prohibition on use of the mail.

14.25 The principal arguments against permitting solicitation by mail are: being private, there is a greater risk that breaches of the restrictions may go undetected, the receipt of unsolicited mail is a nuisance and an invasion of privacy; some recipients may feel undue pressure to utilise the practitioners services, and, recipients may be concerned about the nature and source of the information which led the practitioner to write to them. In our view, each of these arguments has strength but the dangers can be reduced greatly by the introduction of certain controls. For example, there could be a requirement that the form of material to be mailed, and the manner of selection of addresses, must be notified to the general regulatory body a prescribed period before being posted. We describe other possible controls later in this chapter. ¹⁷

Business Cards

14.26 Business cards provide a convenient method of establishing a solicitors identity as suck and of conveying certain basic information about how he or she may be contacted. They could also be used to convey other basic information about a solicitor s practice, and it may be argued that any type of information which could be advertised publicly by a solicitor should be able to be included on a business card. On the other hand, the use of business cards constitutes a form of face-to-face solicitation with the attendant dangers to which we have referred earlier. It may be appropriate to expand somewhat the range of information which can be put on a card, without extending the range as far as we have recommended earlier in relation to advertising generally.

IV. Our Recommendations

14.27 Some relaxation of the present general prohibition on solicitation by solicitors could provide substantial advantages for both the public and the profession However, some types of solicitation would have undesirable consequences. Accordingly, this is an area in which cautious experimentation with limited changes may be necessary before considering substantial reforms. We recommend such changes in the following paragraphs.

Public Media

14.28 We recommend that solicitation in public media should be permitted, provided that

• it complies with the same restrictions as we recommended earlier in relation to advertising (including, for example, a prohibition on solicitation which is false, misleading or disreputable to the profession), save that an indication of willingness to accept work from a particular class of clients could be more specific than would be permissible under those restrictions; ¹⁸
• it does not involve concern duress or harassment;
• details of the intended solicitation are notified to the general regulatory body a prescribed period in advance.

We recommend that these restrictions should be embodied in regulations.

14.29 Several points should be made in relation to these recommendations. First, we emphasis that our definition of solicitation by public media excludes face-to-face solicitation. ¹⁹ Secondly, although we recognise that solicitation by public media is unlikely to involve coercion, duress or harassment, we consider that a specific prohibition of such conduct is desirable. Thirdly, although we have not recommended that the prior approval of the regulatory body should be required, the requirement of prior notification to that body gives it considerable power to prevent solicitations which it considers to be undesirable. In most cases an indication of disapproval by the regulatory body would be sufficient to deter a solicitor from proceeding with a proposed solicitation. ²⁰ Such disapproval would, no doubt be taken into account by disciplinary tribunals in the event of disciplinary charges being brought for breach of the regulations. In cases of substantial importance, the regulatory body could initiate an urgent change in the regulations in order to prohibit a proposed solicitation.

Mail to Non-Clients

14.30 We recommend that solicitation of non-clients by mail should be permitted, subject to the same restrictions as we have recommended above for solicitation in the public media, and to the following additional restrictions:

• a copy of any material to be mailed, and a description of the manner of selection of addressees, should be supplied to the general regulatory body a prescribed period before mailing;
• if more than one mailing is to be made to an address, a reply-paid card should be included in the first mailing so that the addressee may indicate that he or she does not wish to receive further material, and it would be prohibited for a solicitor to send further material after receiving such an indication.

Business Cards

14.31 We recommend addition of the following items to those which the Law Society’s present ruling permits to appear on solicitors’ business cards:

• such information about the solicitors fields of practice as would be able to be advertised in accordance with our recommendations in Part III of this Report;
• languages spoken by the solicitor;
• jurisdictions outside New South Wales in which the solicitor is entitled to practise.

FOOTNOTES

1. On our usage of the term “community discussion” and other terms concerning attraction of business, see para.8.3 of this Report.

2. See R Atkins, New South Wales Solicitor’s Manual (3rd ed., Law Society of NSW, Sydney, 1975), pp.226-237.

3. See pp.163-165 of our Discussion Paper. See also A Guide to the Professional Conduct of Solicitors (Law Society, London. 1974), pp.99-100; K Gifford, Legal Profession Law and Practice in Victoria (Law Book Co., Sydney, 1980), pp.233-234.

4. See A Guide to the Professional Conduct of Solicitors (note 3 above), p.99.

5. See A Guide to the Professional Conduct of Solicitors (note 3 above), pp.99-100.

6. “Advertising and Specialisation” (Submission No.412), pp.22-23.

7. See Guardian Gazette (1981), vol.

8. “Advertising and Specialisation” (Submission No.412), pp.22-23.

9. On our usage of the terms “advertising”, “solicitation”’ and other terms concerning attraction of business, see pira.8.3 of this Report.

10. The relevant regulation is quoted in para.8.5 of this Report.

11. See Atkins (note 14.4.1 above), and Law Society of New South Wales, “Advertising” (Submission No.218).

12. See L Andrews, Birth of a Salesman (American Bar Association, Chicago, 1980).

13. See Atkins (note 2 above), pp.231-233.

14. See, for example, Andrews (note 12 above); Ohralik v. Ohio State Bar Association, US Reports (1978), vol.436, p.477; In re Primus, US Reports (1978), vol.436, p.412.

15. See Atkins (note 2 above), p.228.

16. “Advertising and Specialisation” (Submission No.412), p.23.

17. Paras.14.30-14.31.

18. See para.12.23.

19. See para.14.12.

20. On this point, see para.6.16.