National Competition Policy Review of the Legal Profession Act 1987


Chapter Eight - Advertising



8.1 Principle 3 of the COAG Working Party report states that lawyers should have the freedom to inform their clients by means of advertising and promotion and related forms of information disclosure, subject only to rules which prevent false, misleading or deceptive representations and conduct.

8.2 The Legal Profession Reform Act inserted section 38J into the Act, which provided that a solicitor or barrister could advertise in any way they saw fit, subject only to the limitations set out in the Trade Practices Act 1974 and the Fair Trading Act 1987, or any similar legislation. The removal of restrictions on advertising was consistent with the recommendations of the Law Reform Commission and is also consistent with the approach adopted by the Trade Practices Commission[24].

8.3 Only the Regulations made under the Act can impose greater restrictions on solicitors' and barristers' advertising. The rules of the professional Councils cannot do so. The removal of restrictions on advertising is consistent with competition policy because it promotes the provision of information in the marketplace, facilitating consumer choice and competition among practitioners. However, several jurisdictions still allow professional associations to make rules restricting advertising.[25]

8.4 There have been few complaints from solicitors or barristers or members of the public about the advertising of solicitors since the removal of restrictions on advertising. Apart from the difficulties of defining and regulating vulgar or sensational advertising, the marketing value of such advertising appears to be questionable.[26[]]


QUESTIONS

A. Has competition been engendered by the removal of restrictions on advertising by lawyers?

B. Is there any evidence that the removal of restrictions on advertising, other than those proscribing false, misleading and deceptive conduct, have harmed the public?

C. Has the removal of advertising restrictions been of benefit?

D. Are there arguments in favour of the reintroduction of controls on advertising by solicitors? What matters would be addressed by any controls?

E. How can the reintroduction of controls be reconciled with the application of competition policy to the profession?

Footnotes

[24] LRC 33 (1982), Recommendations 13-20; it is noted that the Law Reform Commission recommended that some restrictions on vulgar or sensational advertising be retained; see also TPC Report, 177.

[25] Queensland Law Society Act 1952, s 5A(1)(hb)(i); Legal Profession Act 1993(Tas), s 17(g)
Footnotes

[26] It is noted that in 1997, when amendments to the Workers Compensation Act 1987 and the Workers Compensation Regulations commenced, they restricted the ability of lawyers and agents to advertise their willingness to act for clients in workers compensation matters. While these amendments fall outside the scope of the terms of reference, it is noted that they have modified the regulation of solicitors and barristers who practise in the area of workers compensation.