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Report 33 (1982) - Third Report on the Legal Profession: Advertising and Specialisation

Summary of Principal Recommendations

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INTRODUCTION

The following is a summary of the principal recommendations made by the Commission in this Report. The recommendations relate to three general topics, namely

specialisation and related matters;
individual advertising by solicitors;
other attraction of business (ie. community discussion and solicitation by solicitors, attraction of business by barristers, and institutional advertising).

The scope of these topics, and our usage of the words italicised above, is explained in chapters 2 and 8 of the Report.

SPECIALISATION AND RELATED MATTERS (Part II of the Report)

I. Solicitors (Chapter 6)

Advertising about Willingness to Accept Work in Particular Fields (paras.6.10-6.21)

R.1 (1) Solicitors should be permitted to advertise

their willingness or unwillingness to accept work in particular fields of practice;
their willingness or unwillingness to accept work directly from clients, whether generally or in particular fields.

(2) Such advertisements should be subject to the rules which we recommend below (recommendations 13-20) in relation to advertising in general. Accordingly, they should be able to appear in newspapers and other printed publications, and on radio and television, but they should not be permitted to be false, misleading, disreputable to the profession, or to claim superiority over other solicitors (see recommendation 13).

R.2 (1) From time to time, the general regulatory body for solicitors should publish lists of terminology which it considers suitable for use in advertisements of the types described in recommendation 1. For example, it should suggest terms for describing particular fields of practice (including "General Practice"), and it should give detailed definitions of these terms, where appropriate. In addition it should publish examples of terms which it does not consider suitable because, for example, they are misleading.

(2) If solicitors wish to use terminology which the regulatory body has defined, they should be required to use it in accordance with that definition and to supply a copy of that definition to any client or would-be client, who requests it.

(3) If solicitors wish to use terminology which has not been suggested by the general regulatory body, they should be required to notify that body a specified period in advance. It should not be compulsory, however, to obtain the approval of that body, provided that the terminology complies with the restrictions referred to in recommendation 1. The requirement of prior notification should not apply to advertisements in publications which circulate principally or solely amongst lawyers.

R.3 (1) The types of information included in the Legal Services Directory should be expanded to allow solicitors to indicate whether they do not accept work directly from clients, either generally or in particular fields.

(2) The list of fields in the Directory should be kept under review with the assistance of non-lawyers who are familiar with the needs and perspectives of users or would-be users of legal services.

R.4 The Legal Services Directory should be supplemented by a Referrals Directory intended principally for use by members of the legal profession. By contrast with the Legal Services Directory, this Directory should contain information about individual solicitors in a practice rather than the practice as a whole, and the fields of practice listed in it should tend to be narrower and should be considerably greater in number.

Other Advertising about Fields of Practice (paras.6.22-6.42)

R.5 (1) Solicitors should not be permitted to advertise themselves in terms such as “specialists” or “experts” in particular fields, whether subject to meeting specified qualifications or otherwise.

(2) We are not necessarily opposed, however, to a scheme which permits solicitors, subject to meeting certain requirements, to advertise themselves as, for example, "preferring" or "being specially interested in" particular fields.

(3) If such a scheme is established, the requirements for advertising under it should be modest. For example, they should not involve substantial levels of concentration in a particular field, attendance at lengthy courses of continuing legal education the successful completion of written or oral examinations, or the provision of references from other lawyers.

R.6 (1) We do not positively recommend the establishment of a scheme of the kind described in recommendation 5(2) and (3). But we recommend that, if it is introduced, it should be a low- medium scheme along the following lines.

(2) Subject to meeting certain qualifications, solicitors would be permitted to advertise themselves as having certain "preferred' fields of practice, or as being “specially interested” in particular fields, or in such equivalent terms as are approved by the general regulatory body.

(3) The qualifications for advertising under the scheme would be:

three years in active practice as a lawyer;
(i) for two years prior to commencing to advertise, attendance at specified continuing legal education (say, 20 hours each year); (ii) for each year after commencing to advertise, attendance at specified continuing legal education (say, 20 hours f or each of the first two years after commencing advertisements, and 10 hours for each subsequent year); and
payment to the general regulatory body of a modest registration fee for each field advertised, the fee to be used to defray the cost of administering the scheme.

(4) Advertising under the scheme would be restricted to certain broadly-defined fields, such as those listed in the present Legal Services Directory. One field would be General Practice. There would be no limit on the number of fields in which any one practitioner could advertise, provided that he or she meets the specified requirements.

(5) The scheme, and especially the determination of the requirements for advertising under it, would remain both in law and in practice, under the control of the general regulatory body for all solicitors rather than of associations of practitioners interested in particular fields.

Special Interest Associations (paras. 6.43-6.51)

R.7 (1) Associations of people interested in particular fields of practice ("special interest associations") can be beneficial, but they should not be permitted to become, in reality, the regulatory bodies for solicitors who work in those fields.

(2) Distinctions in law or official practice (such as the practice of courts the Government or general regulatory bodies of the profession) should rarely, if ever, be based on whether or not a solicitor belongs to a special interest association.

(3) In our First Report we recommended vesting the Law Society Council with statutory power to regulate restrictive practices amongst practitioners who are subject to its governance see recommendation 44 of that Report). The restrictive practices covered by that recommendation include those which are engaged in by solicitors as members of special interest associations.

II. Barristers (Chapter 7)

Advertising about Willingness to Accept Work in Particular Fields (paras.7.7-7.9)

R.8 Barristers should be permitted to advertise about their willingness to accept work in particular fields to the same extent as we recommended in recommendations 1 and 2 above in relation to solicitors, save that it may be appropriate to restrict barristers to advertising in Publications which circulate principally or solely amongst lawyers.

R.9 The Bar Association should arrange for the publication of a directory in which barristers may indicate their willingness or unwillingness to accept work in particular fields. The directory should be similar in nature to the Referrals Directory which we have recommended above in relation to solicitors (see recommendation 4) and could be combined with it.

Other Advertising about Fields of Practice (para.7.10)

R.10 (1) Barristers should not be permitted to advertise themselves in terms such as “specialists” or “experts” in particular fields, whether subject to meeting specified qualifications or otherwise.

(2) We do not recommend the establishment of a "preferred fields of practice" scheme for barristers but we do recommend that if such a scheme is established it should be along the lines of the scheme described in recommendation 6 in relation to solicitors.

Special Interest Associations (para.7.11)

R.11 We make the same recommendations in relation to special interest associations which include barristers as we made in recommendation 7 above in relation to special interest associations which include solicitors.

In an Undivided Profession (para.7.12)

R.12 In our First Report we recommended the abolition of the present division of the profession into barristers and solicitors. If that recommendation is adopted, the recommendations which we have made above in relation to barristers (recommendations 8-11 of this Report) should be applied to all practitioners who do not accept work directly from clients, whether or not they are in sole practice (as barristers presently are) and whether they are subject to the governance of the Bar Council or that of the Law Society Council.

INDIVIDUAL ADVERTISING BY SOLICITORS (Part III of the Report)

I. A General Scheme (Chapter 12)

Basic Rules (para. 12.16)

R.13 Generally speaking, advertising by solicitors should be permitted, subject to the following four basic rules:

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;
it must not contain testimonials or endorsements concerning the advertising solicitor.

Special Areas (paras.12.19-12.28)

R.14 Advertising by solicitors in relation to any of the following areas, namely

fields of practice;
fees;
actual or potential clientele;
speed of service;

should be subject to special restrictions, in addition to those described in recommendation 13 above. We describe these special restrictions in recommendations 15 and 16 below.

R.15 An Approved List. Advertising in the four special areas should be confined to the types of information on the following Special Areas List

Fields of Practice:

Fees:

Actual or Potential Clientele:

Speed of Service:

R.16 Controls on Terminology. (1) From time to time, the general regulatory body should publish lists of terminology which it considers suitable for use in advertisements about types of information on the Special Areas List. For example, it should suggest descriptions for particular fields of practice (eg. “family law”), and for particular services in relation to which solicitors might wish to advertise their fees (eg. “standard family company incorporation”). It might also give detailed definitions of some of these descriptions. In addition, it should publish examples of terms which it does not consider suitable because, for example, they are likely to be misleading.

(2) if solicitors wish to use terminology which the regulatory body has defined, they should be required to use it in accordance with that definition and to supply a copy of that definition to any client, or would-be client, who requests it.

(3) If solicitors wish to use terminology which has not been suggested by the general regulatory body, they should be required to notify that body a specified period in advance. It should not be compulsory, however, to obtain the approval of the general regulatory body, provided that the terminology complies with the rules described in recommendations 13 and 15 above. The requirement of prior notification should not apply to advertisements in publications which circulate principally or solely amongst lawyers.

N.B. It may be considered that the scheme recommended above (recommendations 13-16) constitutes too great a relaxation of the present restrictions, at least in the immediate future. We do not take that view, but in case it is adopted, we describe in Appendix II of the Report a scheme which might be suitable for implementation pending introduction of our recommended scheme. We emphasise that this interim scheme would allow advertising in the four special areas to the same extent as would be permissible under the scheme recommended above. If the scheme prohibited such advertising it would not, in our view, constitute an adequate relaxation, even on an interim basis.

II. Particular Media (Chapter 13)

Generally speaking, recommendations 13-16 apply to advertising in any medium. But we make the following recommendations in relation to particular media.

Radio and Television (para.13.5)

R.17 (1) Subject to (2), advertising on radio or television should be permitted, provided that it complies with the rules in recommendations 13-16 above.

(2) We do not anticipate that radio or television advertising is likely to become widespread, atleast in the near future. If problems of over-use occur eventually, consideration could be given to introducing restrictions on frequency and expenditure.

Signs and Brochures (paras.13.6-13.8)

R.18 (1) Subject to (2), advertising by signs or brochures should be permitted, provided that it complies with the rules in recommendations 13-16 above.

(2) We do not necessarily object to specific restrictions on the size and appearance of office signs, provided that they are necessary to avoid advertisements which by reason of their size or appearance, are vulgar, sensational or otherwise likely to bring the profession into disrepute. But the restrictions should not be aimed at prohibiting content which could be advertised in other media.

Telephone Directory

R.19 Advertising in the classified section (Yellow Pages) of the telephone directory should be permitted, provided that it complies with the rules in recommendations 13-16 above.

Legal Services Directory

R.20 (1) The Legal Services Directory should include the following types of information, in addition to those which it presently contains:

(i) willingness or unwillingness to accept work directly from clients, rather than only from instructing practitioners;

(ii) the names of principals and employed solicitors in each practice;

(iii) types of credit card accepted;

(iv) date of admission as a solicitor;

(v) after hours or emergency telephone numbers;

(vi) (provided it fits in a small space made available next to each practice's entry), any information such as opening hours, which solicitors would be permitted to advertise in other printed publications;

(vii) (in a part of the directory separate from the main listings), admission as a lawyer in other jurisdictions.

(2) The Directory should be advertised widely and repeatedly in accordance with a continuing plan. A thorough and independent survey of the level and pattern of use of the Directory should be conducted.

OTHER ATTRACTION OF BUSINESS (Part IV of the Report)

I. Community Discussion and Solicitation by Solicitors (Chapter 14)

Community Discussion (paras.14.9-14.10)

R.21 (1) Solicitors should be allowed to participate in community discussion of legal and non-legal issues, and to give some information about themselves which is relevant to those issues and to the perspectives from which they view them.

(2) The existing rulings of the Law Society of New South Wales in this area are unduly restrictive. Subject to certain modifications, the statement of principles which has been adopted by the Law Society in England (see paras.14.5 and 14.7 of this Report) should be adopted in this State.

Solicitation (paras. 14.28-14.31)

R.22 Public Media. Solicitation in public media (such as newspapers, radio and television; but not including face-to-face communication such as at public meetings) should be permitted, provided that

it complies with the same restrictions as we recommended earlier (see recommendations 13-20) in relation to advertising (including, for example, a prohibition on advertising 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;
it does not involve coercion, duress or harassment;
details of the intended solicitation are notified to the general regulatory body a prescribed period in advance.

R.23 Mail to Non-Clients. Solicitation of non-clients by mail should be permitted, subject to the same restrictions as we have recommended above for solicitation in public media (see recommendation 22), 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.

R.24 Business Cards. The range of information which may be shown on a business card should be extended to include the following items:

(i) such information about the solicitor s fields of practice as would be able to be advertised in accordance with recommendations 13-16 above;

(ii) languages spoken by the solicitor;

(iii) jurisdictions outside New South Wales in which the solicitor is entitled to practice.

R.25 (1) Barristers should be permitted to advertise to the same extent as we recommended above in relation to solicitors' (see recommendations 13-20), save that it might be appropriate to restrict barristers to advertising in publications which circulate principally or solely within the legal profession.

(2) If (1) above is not accepted, at least the following types of information should be allowed to be advertised by barristers, in addition to basic information such as name, address and telephone number:

(i) commencement of practice as a barrister;

(ii) change of address or telephone number;

(iii) willingness to accept work in particular fields of practice;

(iv) knowledge of foreign laws;

(v) date of admission;

(vi) fixed fees for clearly specified services.

Community Discussion (paras.15.25-15.26)

R.26 (1) Barristers should be allowed to participate in community discussion of legal and non-legal issues, and to give some information about themselves which is relevant to those issues and to the perspectives from which they view them.

(2) The existing rules and rulings of the New South Wales Bar Association in this area are unduly restrictive and some what unclear. The relevant rules of the English Bar (rules 102 and 104) should be adopted, with minor modification in this State.

Solicitation (para.15.27)

R.27 (1) Barristers should be permitted to use business cards of the type, and in the circumstances, permitted by rule 106 of the English Bar.

(2) We recommended in our First Report that the present prohibition on barristers visiting solicitors' offices should be abolished or relaxed substantially.

In an Undivided Profession

R.28 If the division of the profession into barristers and solicitors is abolished (as recommended in our First Report), the recommendations made above in relation to barristers (recommendations 25-27) should be applied to all practitioners who do not accept work directly from clients, whether or not they are in the sole practice (as barristers presently are) and whether they are subject to the governance of the Bar Council or that of the Law Society Council.

III. Institutional Advertising (Chapter 16)

R.29 (1) Institutional advertising of a predominantly promotional nature is acceptable provided that it is accurate, fair and temperate, and that it is financed solely or principally by the profession itself rather than from public funds. It would be unsatisfactory if the profession restricted its institutional advertising to reactive campaigns against competitors, rather than initiating positive campaigns in areas of unmet need.

(2) The profession should not concentrate its institutional advertising on promotional goals. Informational advertising, whether in conjunction with promotional material or otherwise, is an important means by which the profession can demonstrate its high ideals of public service.

(3) Institutional advertising and community legal education should not be regarded as the exclusive preserve, or responsibility, of solicitors. The Bar should take initiatives in this area or, perhaps preferably, contribute human and financial resources to joint projects with bodies such as the Law Society and the Law Foundation.

(4) The Law Society and the Bar Association should consider the preparation of a manual and the provision of funds, in order to facilitate institutional advertising by groups of lawyers who practise in the same locality or in the same field of practice.

(5) In the areas of institutional advertising and community legal education particular emphasis should be placed on the needs of disadvantaged sectors of the community. We refer especially to economic, linguistic and geographical disadvantages. Non-lawyers closely familiar with the particular target audience should usually play a leading role in devising and implementing projects.

(6) The primary goals of institutional advertising should be helping members of the public to prevent legal problems from arising, to identify an appropriate source of assistance when they do arise, and to find their way to such a source. In many instances it will be feasible to achieve these goals, but not to communicate detailed information or advice about particular problems.

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