New marketing rule
Lawyers must take care in marketing track record or testimonials
A new rule passed by the Benchers in April prohibits lawyers from stating or implying in any marketing activity that they are aggressive, and sets requirements for lawyers when advertising their past successes or when using testimonials.
The changes are set out in new Rule 4.2 in Chapter 14 "Marketing of Legal Services" of the Professional Conduct Handbook. That Rule reads:
4.2 A lawyer must not do any of the following in any marketing activity:
(a) state or imply that the lawyer is aggressive,
(b) state an amount of money that the lawyer has recovered for a client or refer to the lawyer’s degree of success in past cases, unless such statement is accompanied by a further statement that past results are not necessarily indicative of future results and that the amount recovered and other litigation outcomes will vary according to the facts in individual cases,
(c) use a testimonial unless the content of the testimonial complies with Rule 4.
Rules 4 and 4.1 set the context for all lawyer marketing activities and state:
4. Any marketing activity undertaken or authorized by a lawyer must not be:
(d) reasonably capable of misleading the recipient or intended recipient, or
(e) contrary to the best interests of the public or to the maintenance of a high standard of professionalism.
4.1 Any marketing activity undertaken or authorized by a lawyer must be in keeping with the dignity and reputation of an honourable profession.
Last year the Benchers had planned to bring into effect more restrictive provisions than those now in Rule 4.2. Lawyers would not only be barred from implying they are aggressive, they would have been prohibited from stating their success in past cases or using testimonials in marketing.
The reason for restrictions is to ensure that marketing is not misleading or unseemly and does not bring the profession into disrepute.
The Ethics Committee has noted that statements of past recoveries (in the absence of other information) provide the public with no rational basis to decide whether or not to retain a lawyer. For example, a statement that a lawyer has recovered a $1 million judgment for a client is misleading if the client has no way to assess whether that was a reasonable recovery in the circumstances.
The Ethics Committee consulted the profession last year about implied lawyer aggression, client testimonials and statements of past successes in marketing: see the March-April, 1999 Benchers’ Bulletin. The Committee received a number of thoughtful submissions, most from the trial bar. There was a diversity of viewpoints – some lawyers agreed with the proposed prohibitions, but many disagreed, in particular over prohibiting testimonials and statements of past recovery.
For the Ethics Committee, there was another key issue: would prohibitions on testimonials and statements of past recoveries be constitutionally sound? The Law Society commissioned a legal opinion from Robin Elliot and Phillip Bryden, both faculty members at UBC law school and Associate Counsel with Heenan Blaikie in Vancouver, who considered the proposed changes in light of the leading decision on professional advertising, Rocket v. Royal College of Dental Surgeons of Ontario  2 SCR 232, and other authorities.
In the view of Mr. Elliot and Mr. Bryden, a blanket prohibition against lawyers using testimonials and statements of past success in their marketing would violate their guarantee of freedom of expression under section 2(b) of the Charter of Rights. In considering whether prohibitive rules could be saved under section 1 of the Charter as necessary to protect professionalism or suppress misleading information, Mr. Elliot and Mr. Bryden expressed considerable doubt that the rules represented the least restrictive means of achieving these regulatory objectives.
In light of this opinion and the serious impact of blanket prohibitions on B.C. lawyers, the Ethics Committee proposed to the Benchers that the rules be revised in two important respects. First, lawyers could advertise their past recoveries or past successes, but would need to provide a disclaimer to the effect that past results are not necessarily indicative of future results and that the amount recovered and other litigation outcomes will vary according to the facts in individual cases. Second, lawyers may use client testimonials, but only if the content of the testimonial is true and verifiable and complies with Rule 4 in other respects.
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Lawyer viewpoints … on marketing
Here are a few extracts from letters from lawyers to the Ethics Committee last Spring on a proposed prohibition on marketing testimonials and statements of past success.
On testimonial advertising …
"We believe that the provision of testimonials can be very helpful to assist the public in choosing a lawyer, as long as the testimonials are true and not misleading."
"The best-selling tool that any type of professional or advisor has to expand their client base is the word-of-mouth of satisfied clients. The use of a documented and authorized testimonial is a powerful advertising tool that does nothing more than represent a factual statement of a client."
"If a testimonial advertisement offends the current Rules 4 and 5, it should, of course, not be allowed, However, there is certainly no need to ban this type of advertising in its entirety simply because it might be abused. The same can be said about any form of advertising."
"… A person hiring a lawyer to conduct an ICBC case, needs to know that ICBC may not be offering them the best dollar for their injuries. There are two ways to express this 1) ‘ICBC may not offer you fair compensation’ or 2) ‘I tried to settle my own whiplash case with ICBC and the most they would offer me was $6,000. I hired lawyer X and he settled my case for $56,000, which included business losses as well as pain and suffering - Mr. X, West Vancouver.’
From the point of view of a consumer, which message makes more sense?"
On lawyers stating past successes …
If a lawyer has been successful in obtaining substantial awards for clients, what is ‘inherently misleading’ about truthfully stating this fact? Surely the public is not so unsophisticated that they will be hoodwinked by a lawyer’s truthful statements about past performance?"
"It reminds me of the riddle: "Q: What is the easiest way to get a million-dollar settlement (judgment)? A: Mishandle a two-million dollar claim."
"… If the Law Society wants to do something about the present marketing that is going on, then perhaps some attention should be paid to the kinds of claims that are presently being made, and the lack of disclaimers in those ads."