A. INTRODUCTION

9.1 In this chapter we look at

• the present position in relation to individual advertising by solicitors in New South Wales;
• some developments in legal professions outside New South Wales, and in professions other than law, in relation to individual advertising.

B. THE PRESENT POSITION IN NEW SOUTH WALES

I. Introduction

9.2 We have referred earlier to regulation 29 of the Solicitors (General) Regulations which prohibits “applying for or seeking instructions”, “touting”, “attracting business unfairly” and “publishing an advertisement”. ¹ Of these four prohibitions, the third and fourth are the most likely to be relevant to individual advertising; the first two, it would appear, are directed principally at solicitation. ²

9.3 The terminology of these prohibitions is somewhat general, but there are two other sources which help to define the line between permitted and forbidden advertising by solicitors. They are, firstly, the exceptions to the prohibition against advertising which are listed in regulation 29 itself, and secondly, rulings made by the Law Society Council. We have referred earlier to the question of the legal status of the Council’s rulings. ³

9.4 We summarise below various important aspects of the existing regulations and Council rulings on individual advertising by solicitors. We do so under four heads, namely

• advertising in newspapers, periodicals and directories;
• advertising on radio and television;
• advertising on office signs, brochures and business cards;
• incidental advertising.

Under each head we also describe the changes, if any, which would be effected by the Law Society’s proposed new regulations in relation to advertising which, as we mentioned earlier, are in an advanced stage of preparation. ⁴

9.5 We conclude our summary of the present position by referring to certain legislation concerning consumer protection and restrictive practices which may be relevant to advertising by solicitors in New South Wales.

II. Newspapers, Periodicals and Directories

The Present Regulations

9.6 At present, advertising in these types of publication is prohibited by regulation 29, subject to exceptions specified in the regulation itself. Those exceptions relate to

• advertising of basic information (such as name, name of practice, address and telephone number) in “recognised” legal directories;
• advertising of certain information by country solicitors in limited circumstances;
• advertising undertaken with the consent of the Law Society Council.

9.7 The power of the Law Society Council to approve advertising which otherwise would be prohibited by regulation 29 has led to two significant developments in the last few years. First, as we mentioned in Part II, ⁵ the Law Society published in 1981 a Legal Services Directory, containing basic information about individual practices, such as their name and location, languages spoken by their principals or staff, fields of practice in which they are “willing to provide assistance”, and whether they are willing to provide a 30 minute initial interview for $20. Several thousand copies of the Directory have been distributed for use at government offices, court houses, police stations, libraries, solicitors’ offices and legal aid centres. Secondly, having announced in 1979 its intention to amend regulation 29 to allow greater scope for advertising, ⁶ the Law Society Council has approved some advertisements on the basis that they are in compliance with the proposed new regulations. Early in 1982 the Society informed us that 188 such advertisements had been approved. ⁷ For example, solicitors have advertised in newspapers their name, the name of their practice, their address and telephone number, their opening hours, and such phrases as “full range of legal services” and “legal aid applications attended to”.

The Proposed Regulations

9.8 The main differences between the proposed regulations and the existing regulations are that under the proposed regulations

• a few additional types of information could be advertised (notably in relation to languages spoken and fees for an initial consultation); and
• instead of being confined principally to legal directories, advertisements could be published in newspapers and periodicals.

We summarise the proposed regulations in the following four paragraphs.

9.9 Types of Publication. The proposed regulations would permit solicitors to advertise on an unlimited number of occasions in newspapers and periodicals (except those declared by the Law Society Council to be “unsuitable” for the purpose), the Law Almanac, other “legal directories” or “law lists” approved by the Council, and the telephone directory.

9.10 Size and Format. There would be restrictions, aimed at avoiding “undue prominence”, on the size and format of advertisements in newspapers, periodicals and the telephone directory. The controls on format relate to matters such as the use of colour, symbols and borders. In practice, the Law Society Council could apply similar controls over legal directories.

9.11 Content. The permissible content would vary according to the type of publication. The broadest range would be in relation to newspapers and periodicals. It may be summarised under the following heads.

• Basic Information

  name; occupation (ie. “solicitor”); name of practice; personal and business addresses and telephone numbers (including cable, telegraphic, telex addresses etc); opening hours; agents and associated firms.

• Qualifications and Appointments

  date of admission; right to practise in other jurisdictions; right to practise on own account academic awards; honours or awards conferred by the Crown; appointment as a notary public or Commissioner for affidavits; subject to approval by the Law Society Council membership of a “non-legal professional body”.

• Changes in Practice

  commencement, change in constitution or termination of a practice; establishment or closure of an office.

• Languages Spoken

  languages spoken by solicitors or staff in the practice.

• Fees

  fees charged for an initial consultation of a stated maximum duration (provided the fees are not below those specified under any relevant scale).

Most of this information could also be advertised in approved legal directories, although only some of it could be included in the Law Almanac. Advertisements in the telephone directory would be confined, generally speaking, to names, addresses, telephone numbers, status as a “solicitor”, and languages spoken. The proposed regulations would not explicitly permit advertisements concerning fields of practice; the position concerning such advertisements is described in Part II of this Report.⁸

9.12 Other Matters. In their present form, the proposed regulations would not permit employed solicitors to advertise. The proposed regulations would give the Law Society Council a general power to approve in writing an advertisement which would otherwise be prohibited by the regulations.

III. Radio and Television

9.13 Advertising on radio and television is totally prohibited under the present regulation 29. It would also be prohibited under the proposed regulations.

IV. Office Signs, Brochures and Business Cards

The Present Regulations

9.14 The existing regulations do not deal explicitly with attraction of business by use of office signs, brochures or business cards. However, rulings by the Law Society Council closely restrict the use of office signs, prohibit dissemination of anything in the nature of a brochure, and allow only limited use of business cards.

9.15 The Councils ruling on office signs says that they

“shall be no more than reasonably necessary to assist a member of the public seeking legal services to obtain such services and shall not

(a) be in bad taste;

(b) be unnecessarily large, conspicuous or numerous; ....”⁹

Save with the Councils approval office signs must not be on premises other than those in which the practice is located.¹⁰ The ruling on business cards requires them to be of “normal size”, and to contain only the solicitor s name, name of practice, degrees, address, telephone number, and the description “solicitor”. ¹¹ Use of business cards by a practitioner must be “discreet and is confined to occasions on which it is proper that he should establish his professional identity.”¹²

9.16 Some aspects of the use of brochures and business cards relate to solicitation and, accordingly, they are considered in chapter 14 of this Report.

The Proposed Regulations

9.17 The proposed regulations do not deal explicitly with the use of office signs, brochures or business cards. The Law Society Council presumably takes the view that business cards and office signs which are permissible at present would continue to be permissible under its proposed regulations. But if those regulations were introduced, the question would arise whether solicitors could advertise in office signs, brochures and business cards the same range of information as the regulations would entitle them to advertise in newspapers. For example, could office signs include details concerning fees for initial consultations? Such expanded use of these means of advertising might be regarded as contravening the new regulations, subject to the Councils power to approve exceptions.

V. Incidental Advertising

9.18 By “incidental” advertising we mean advertising which is undertaken primarily for a purpose other than the attraction of legal work, but which also is intended, or is likely, to attract such work. Despite some differences in wording, the intent of the present regulations and the proposed regulations does not seem to differ significantly in relation to incidental advertising. The proposed regulations are expressed a little more clearly on this point and it is them which we quote here. They would prohibit the seeking of instructions for “professional business”, the unfair attraction of “business”, and the publication of advertisements “which can reasonably be regarded as calculated to attract business to a solicitor’s practice”. Thus, for example, a solicitors advertisements for new staff would be prohibited if the advertisements could reasonably be regarded as calculated to attract business to the practice.

9.19 The Law Society Council has made a number of rulings in relation to incidental advertising. It does not seem likely that they would be affected by the proposed amendments to the regulations. An example of a Council ruling in this area concerns solicitors advertisements seeking information about the whereabouts of missing persons. The Council has ruled that such an advertisement must be confined to the classified advertising sections of newspapers if the name of the solicitor s practice is to be mentioned in it. ¹³ Another ruling concerns display advertisements by solicitors seeking legal or non-legal staff, and it states, amongst other things, that such advertisements must not include “any reference to or comment about the advertiser s field of practice. ¹⁴

VI. Consumer Protection and Restrictive Practices Legislation

9.20 We have summarised above the principal restrictions on advertising by solicitors in New South Wales, namely, regulations made under the Legal Practitioners Act and rulings made by the Law Society Council. But brief mention should be made of two other forms of control which may become relevant in this area, namely, consumer protection legislation and restrictive practices legislation.

Consumer Protection

9.21 The New South Wales Consumer Protection Act, 1969, makes it an offence for providers of services, including solicitors, to engage in advertising which to their knowledge is “false or misleading in any material particular”. ¹⁵ Other provisions which may be relevant to advertising by solicitors are the consumer protection provisions of the Commonwealth Trade Practices Act 1974. These provisions relate to activities in the course of trade or commerce and, amongst other things, they make it an offence to “engage in conduct that is misleading or deceptive or is likely to mislead or deceive”, to “falsely represent that services are of a particular standard, quality or grade”, or to “make a false or misleading statement concerning the need for any good or service”. ¹⁶ However, the scope of the Act is limited by the Commonwealth Parliament’s constitutional power and its applicability to the activities of New South Wales solicitors is substantially restricted. ¹⁷

Restrictive Practices

9.22 The Commonwealth Trade Practices Act also contains provisions for regulating restrictive practices in the public interest. ¹⁸ As we have mentioned, the applicability of the Act to New South Wales solicitors is substantially restricted. Moreover, all statutory regulations, including those concerning advertising by solicitors, are exempt from the Act. ¹⁹ But rulings made by the Law Society Council in relation to advertising by solicitors may not be exempt if they impose restrictions going beyond those in the regulations themselves.

9.23 No attempt has been made to apply the Trade Practices Act to New South Wales solicitors. But it has been applied to non-statutory rules about advertising made by professional associations of engineers in Australia. ²⁰ Prior to 1981, these rules prohibited advertising by engineers, save to a limited extent in technical journals, on signs at the sites of projects, and in brochures handed out in response to inquiries. The restrictions were not as tight however, as those which presently apply to solicitors in New South Wales. In 1981, the Trade Practices Tribunal held that the engineers’ rules were contrary to the restrictive practices provisions of the Trade Practices Act. ²¹ The rules were changed to allow any form of advertising by engineers provided that it meets such requirements as being “truthful” “dignified” and “free from any matter that could bring disrepute to the profession”. ²² The Tribunal authorised the new rules, having rejected a proposal that advertising about fees should continue to be prohibited.

C. SOME DEVELOPMENTS ELSEWHERE

I. An Outline

9.24 In our Discussion Paper, Advertising and Specialisation, we described in detail a number of significant developments in legal professions outside New South Wales, and in some professions other than law, in relation to restrictions on advertising. ²³ We do not repeat all of that description here, but we do give a brief outline of the position in relation to lawyers in Australia, the United Kingdom, Canada and the United States, and in relation to the medical engineering and accounting professions in Australia.

9.25 In Australia, the restrictions on advertising by lawyers outside New South Wales are broadly similar to those which presently apply in New South Wales (that is, prior to the introduction of the Law Society’s proposed new regulations). ²⁴ However, some newspaper advertising is permissible in Western Australia, ²⁵ and the Law Institute of Victoria has decided to relax its present restrictions. ²⁶ At the time of writing, the new restrictions in Victoria are in the course of formulation.

9.26 In the United Kingdom, the Monopolies and Mergers Commission recommended in 1976 a very substantial relaxation of the restrictions on advertising by solicitors, which at that time were similar to those which presently apply in New South Wales. ²⁷ Since them the Royal Commission on Legal Services in Scotland has endorsed the Monopolies and Mergers Commission’ s recommendations, ²⁸ and less extensive, but nevertheless major, relaxation has been recommended by the Royal Commission on Legal Services in England and Wales. ²⁹ Some relaxation has occurred since these three Commissions reported, ³⁰ but the British Government has expressed “regret” that the changes “do not meet in full the recommendation of the Monopolies and Mergers Commission”. ³¹

9.27 In Canada, the restrictions in each province were, until 1976, generally similar to the present ones in New South Wales. Since then, however, a considerable range of advertising has become permissible in a number of provinces, including the most populous ones. ³² Further relaxation was recommended in Ontario in 1980 by the Professional Organisations Committee. ³³ But in Manitoba a substantial relaxation introduced in 1978 was largely reversed early in 1982. ³⁴

9.28 In the United States, restrictions on advertising were somewhat similar to those which presently apply in New South Wales, until the Supreme Court of the United States held in 1977 that the freedom of speech provisions of the Constitution of that country guarantee lawyers certain rights to advertise. ³⁵ The American Bar Association responded by drafting two Proposals (A and B) for consideration by individual States. ³⁶ Each Proposal allowed a considerable range of advertising, but Proposal B was the more liberal of the two. Approximately half the States have adopted rules broadly similar to Proposal A, and most of the remainder have rules broadly similar to Proposal B. ³⁷ The American Bar Association is presently considering draft Model Rules of Professional Responsibility, part of which would relax the restrictions still further than was suggested in Proposal B. ³⁸

9.29 Until recent years, the restrictions on advertising by the medical engineering and accountancy professions in Australia were similar to those which apply to lawyers in New South Wales. In 1979, however, the principal professional associations of accountants relaxed their rules to a significant extent. ³⁹ In 1981, as mentioned earlier in this chapter, legal action under the Trade Practices Act led to a substantial relaxation of the restrictions on advertising by engineers. ⁴⁰ The Health Commission of New South Wales favours greater scope for advertising by doctors ⁴¹ and in mid-1982 the State Government announced that certain types of doctor will be allowed to advertise in newspapers and other printed publications such information as opening hours, languages spoken, surgery fees, and information about bulk-billing. ⁴²

II. The Range of Restrictions

9.30 The existing or proposed restrictions on advertising to which we have referred above may be classified into the following five broad categories.

9.31 General Prohibition. In this category, very little advertising is permitted other than in legal directories. Examples include the present restrictions on solicitors throughout Australia and the United Kingdom. ⁴³

9.32 Small Approved List. In this category, it is permissible to advertise in a range of publications, including newspapers, but only such types of information as are specified in a small list may be advertised. In particular, little, if any, information about fees or fields of practice can be advertised. The proposed new regulations for solicitors in New South Wales provide an example of this category. The present rules for lawyers in Ontario and Quebec, and for accountants in Australia, provide other examples. ⁴⁴

9.33 Extensive Approved List. In this category, the list of information which may be advertised is broader, especially in relation to fees and fields of practice. Examples include Proposal A of the American Bar Association (and the rules based on that proposal which are in force in many parts of the United States) and the existing rules in British Columbia. ⁴⁵

9.34 General Approval with Broad Restrictions. An example of this category is a rule in which the basic test is whether the advertisement is false or misleading, but which also has a number of prohibitions relating, for example, to particular types of claims about fees or fields of practice. Examples include Proposal B of the American Bar Association (and the rules based on that Proposal which are in force in many parts of the United States) and the present rules in Alberta. ⁴⁶

9.35 General Approval with Few Restrictions. An example of this category is a rule which prohibits false or misleading advertisements and includes some other prohibitions relating, for example, to claims of superiority over other practitioners and to undignified presentation. The current draft Model Code of the American Bar Association, the rules of the professional associations of engineers in Australia, and the proposals of the Monopolies and Mergers Commission in the United Kingdom, fall within this category. ⁴⁷

FOOTNOTES

1. See para.8.5.

2. We consider solicitation in chapter 14.

3. See para.8.6.

4. See para.8.7.

5. See para.3.19.

6. See Law Society Journal (1980), vol.18, p.309.

7. Law Society of New South Wales, “Advertising and Specialisation” (Submission No.412), p.15.

8. See paras.3.17-3.20 and 4.12-4.13.

9. See Law Society of New South Wales, “Advertising and Specialisation” (Submission No.412), p.20.

10. See source cited in note 9 above.

11. See R Atkins, New South Wales Solicitor’s Manual (3 rd ed., Law Society of NSW, Sydney, 1975), p.228.

12. See source cited in note 11 above.

13. See Atkins (note 11 above), p.227.

14. See Atkins at p.229.

15. Section 32(1).

16. Sections 52(1), 53(aa) and 53(f).

17. See our Discussion Paper, Advertising and Specialisation, pp.104 and 216.

18. See, in particular, sections 45 and 90. For a summary, see our First Report on the Legal Profession Inquiry, paras.7.1-7.11: and our Discussion Papers, The Structure of the Profession, pp.212-214, and Advertising and Specialisation, pp.103-104. See generally, W Pengilley, Trade Associations, Fairness and Competition (Law Book Co, Sydney, 1981).

19. See section 51(1).

20. For a fuller description of its application to these rules, see our Discussion Paper, Advertising and Specialisation, pp.119-120, and ACEA in Trade Practice Land (Association of Consulting Australia, Sydney, 1981).

21. See Association of Consulting Engineers, Australia, Trade Practices Tribunal Decision, 27th February, 1981 (Australian Trade Practices Reporter, p.40-202).

22. Association of Consulting Engineers, Australia, Rules, rule 4(k).

23. See pp.104-120.

24. For some further details, see our Discussion Paper, Advertising and Specialisation, p.105.

25. See Law Society of Western Australia, Professional Conduct Rulings, ruling 3(m)-(o).

26. See Law Institute Journal (1982), vol.56, p.264.

27. See Solicitors’ Services: A Report on the Supply of Services of Solicitors in England and Wales in relation to Restrictions on Advertising (HMSO, London, 1976). esp. p.40. See also our Discussion Paper, Advertising and Specialisation, pp.107-108.

28. See the Commission’s Report (HMSO, Edinburgh 1980, Cmnd.7846), chap.6, esp. para.6.36.

29. See the Commission’s Final Report (HMSO, London, 1979. Cmnd.7648). chap.27.

30. See our Discussion Paper, Advertising and Specialisation, pp.106-107.

31. Guardian Gazette (1979). vol.76, p.521. See also the comments of the Director-General of Fair Trading, reported in Law Society Gazette (1982). p.95; and the editorial in the New Law Journal (1981), p.1018.

32. See our Discussion Paper, Advertising and Specialisation, pp.109-113.

33. See the Committees Report (Ontario Government Bookstore, Toronto, 1980), pp.191-202, esp. 201-202.

34. See National (1982), Vol.19, no.3.

35. See Bates and O’Steen v. State of Arizona US Reports (1977), vol.433, p.350. For a description of developments in the United States, see L Andrews, Birth of a Salesman (American Bar Association, Chicago, 1980), and our Discussion Paper, Advertising and Specialisation, pp.113-118.

36. See American Bar Association Journal (1977), Vol.63, p.1234. For a summary of the proposals, see our Discussion Paper, Advertising and Specialisation, pp.114-116.

37. See Andrews (note 35 above).

38. Proposed Final Draft (1981), rules 7.1-7.5; Alternative Draft (1981), disciplinary rules 2-101 to 2-106.

39. For a summary of these changes, see our Discussion Paper, Advertising and Specialisation, p. 120.

40. See para.9.23.

41. For a fuller description, See Our Discussion Paper, Advertising and Specialisation, p.118.

42. See The Australian, 5th June 1982, p.3.

43. For a summary of these restrictions. see Advertising and Specialisation, pp.106-109.

44. For a summary of these restrictions. see Advertising and Specialisation, pp.112, 120.

45. For a summary of these restrictions, see Advertising and Specialisation, pp.109-111, 114-115.

46. For a summary of these restrictions, see Advertising and Specialisation, pp.111-112, 115-116.

47. For a summary of these restrictions, see Advertising and Specialisation, pp.107-108, 117-118, 119-120.