A. INDIVIDUAL ADVERTISING AND OTHER ATTRACTION OF BUSINESS
8.1 We consider in this Part and in Part IV, the extent to which conduct by lawyers which is intended, or is likely, to attract business to their practice should be subject to regulation We refer to this whole field of conduct as attraction of business.
8.2 Many different expressions are used in statutory regulations and elsewhere to describe different types of attraction of business. Examples include “advertising”, “touting”, “solicitation”, “unfair attraction of business” and “seeking instructions”. 1 The meaning and inter-relationship of these expressions is rarely defined with clarity and often the same expression is used differently by different people.
8.3 In this Report we are concerned with four broad categories of attraction of business by lawyers. These categories are not mutually exclusive but they reflect distinctions which are ,commonly drawn in discussions of this general topic. They may be summarised as follows.
We use this term to cover communications which are made publicly and are likely, or are intended, to attract business to an individual practice or practitioner rather than to the profession generally.
This term is used to cover comments made by lawyers about particular legal or non-legal issues, whether made in public or at meetings of community organisations and the like. Some community discussion may also constitute advertising or solicitation.
We use this term to cover public or private communications which are directed towards Attracting business from a particular person or a small number of people, rather than being directed more generally. Solicitation may or may not occur face-to-face with the person or persons to whom it is directed. When occurring in public, solicitation also constitutes advertising and may constitute community discussion.
- Institutional Advertising
This term is used to cover public communications which are likely, or are intended, to attract business for the profession as a whole, or for a large group of practitioners, rather than for a particular practice or practices.
B. THE PRESENT POSITION
8.4 At present, there are tight restrictions on the means by which lawyers in New South Wales may attract business. We mention here the principal restrictions; more detailed descriptions of the present position are given in subsequent chapters.
Solicitors
8.5 The principal restriction on attraction of business by solicitors is regulation 29 of the Solicitors (General) Regulations, made by the Law Society of New South Wales under the Legal Practitioners Act, 1898. 2 At the time of writing, regulation 29(1) provides that:
“A solicitor shall not directly or indirectly apply for or seek instructions for professional business or do or permit in the carrying on of his practice any act or thing which can reasonably be regarded as touting or as calculated to attract business unfairly.”
Regulation 29(2) provides that, with certain limited exceptions:
“A solicitor shall not, except with the consent in writing of the Council of the Law Society, publish any advertisement....”
The exceptions concern the insertion of certain types of information in recognised legal directories, and limited advertising by country practitioners in their local newspapers in relation to matters such as opening hours and changes of address.
8.6 In addition to regulation 29, there are rulings of the Law Society Council in this area. 3 We refer to many of them in subsequent chapters. It is often unclear, however, whether a particular ruling is an interpretation of a statutory prohibition in regulation 29 (and, if so, of which prohibition), or a decision about whether to exercise the Council’s discretion to approve advertisements which would otherwise be prohibited by the regulation, or an opinion as to whether certain conduct is unethical although not prohibited by regulation. The Council’s rulings are not legally binding, but they would be likely to have great influence on the way in which the Solicitors Statutorv Committee and the Supreme Court would exercise their disciplinary powers in this area.
8.7 In 1979, the Law Society Council announced its intention to amend regulation 29 in order to allow greater scope for individual advertising by solicitors. 4 The proposed new regulations are at an advanced stage of preparation. 5 Their principal significance is that they would allow solicitors to advertise certain specified types of information about themselves in newspapers and periodicals. They also would extend somewhat the types of information which can be advertised in certain legal directories. The proposed relaxation would be significant, but the restrictions on individual advertising and other attraction of business would continue to be very tight. Pending the making of these new regulations, the Law Society Council has exercised its powers under regulation 29(2) by approving applications by lawyers to advertise in newspapers along lines which would be permissible under the proposed new regulations. 6
Barristers
8.8 There are no statutory provisions concerning the attraction of business by barristers. However, the New South Wales Bar Association, to which the great majority of practising barristers belong, has made rules on this subject The rules are generally regarded by barristers as being definitive and would be likely to be given great weight by the Supreme Court when exercising its disciplinary jurisdiction over barristers, whether they be members of the Bar Association or otherwise.
8.9 The two principal rules of the Association in this field are as follows:
“72. A barrister shall not directly or indirectly do or cause or allow to be done anything for the purpose of soliciting employment as a barrister or which is likely to lead to the reasonable inference that it is done for that purpose.
73. A barrister shall not directly or indirectly do or cause or allow to be done anything for the purpose of or with the primary motive of personal advertisement of himself as barrister or which is likely to lead to the reasonable inference that it is done for that purpose.” 7
C. A NEED FOR CHANGE?
8.10 In recent years, restrictions on certain forms of attraction of business by lawyers have come under criticism from official bodies and other commentators in many parts of the common law world. 8 Most of the criticism has centred on tight restrictions in relation to individual advertising. Critics say that such restrictions impede public access to legal services, and that by inhibiting competition, innovation and efficiency within the profession they impede the development of better and more economical legal services. Critics say also that such restrictions unfairly hamper new practitioners and small practices in their efforts to attract sufficient business to become, or remain, viable.
8.11 On the other hand, supporters of a general prohibition against individual advertising argue that such advertising can lead to undue competition between practitioners, and thus may cause a decline in the quality of service and in practitioners’ devotion to their clients’ interests ahead of their own. 9 They argue that advertising would encourage a more commercial approach within the profession thus reducing clients’ trust in their lawyers and also increasing the likelihood of lawyers neglecting their ethical duties to the courts. The cost of advertising, it is said, would outweigh any savings which might result from competition, and it would be borne ultimately by clients. Small or new practices, it is argued, would be unlikely to have the financial resources to match the advertising of larger or more established practices.
8.12 Additional arguments apply to individual advertising, and other attraction of business, by barristers. 10 It is said by supporters of the present prohibitions that barristers do not need to advertise because they receive work only from solicitors, who are readily able to identify barristers well- suited to their clients’ needs. Opponents of the present prohibitions, however, argue that some solicitors are not readily able to identify suitable barristers for particular cases, and that in any event clients are entitled to choose their barrister themselves. Moreover, they say, the fact that individual advertising by barristers may not often be necessary does not mean that it should be prohibited.
D. THE SCOPE OF THIS PART
8.13 We have given in this chapter an introductory outline of the principal restrictions on attraction of business by lawyers in New South Wales, and of the arguments for and against relaxing those restrictions. In the remainder of this Part we consider in detail one aspect of attraction of business by lawyers, namely individual advertising by solicitors. In Part IV we consider other types of attraction of business by solicitors, the general question of attraction of business by barristers, and institutional advertising by groups of lawyers.
FOOTNOTES
1. See, e.g., Solicitors (General) Regulations, reg.29 (NSW): Solicitors (Professional Conduct and Practice) Rules 1979 (Victoria).
2. Section 86.
3. Many of them are collected in R Atkins, New South Wales Solicitor’s Manual (3rd ed., Law Society of NSW, Sydney, 1975).
4. See Law Society Journal (NSW) (1980). Vol.18, p.309.
5. The description of the proposed regulations in this Report is based on the drift published in the Law Society Journal, April 1982, at pp.222-224.
6. See Law Society of New South Wales, “Advertising and Specialisation” (Submission No.412), p.15.
7. New South Wales Bar Association, Rules.
8. The criticisms referred to in this paragraph are described in greater detail in our Discussion Paper, Advertising and Specialisation (especially chapter 9), and later in this Report (especially chapter 11).
9. The arguments referred to in this paragraph are described in greater detail in the sources referred to in note 8 above.
10. The arguments referred to in this paragraph are described in greater detail in the Sources referred to in note 8 above.
