Introduction
In Liberia to advertise as a Lawyer or a firm is a violation of the Code of Morale and Professional Ethics thus subjecting Lawyers to punishment.
The Code of Moral and Professional Ethics Rule 27. “It is unprofessional to solicit professional employment by circulars, advertisement, personal communications or interviews not warranted by usual personal relations. It is not improper however to hang up a shingle or signboard showing the counsel ‘ s office address and hours of work, simple professional cards are also in order.” It is therefore improper and unprofessional for a lawyer to advertise himself for retainer in a prospective case
The ban on advertisements by legal professionals has its origin in England, founded on the Victorian notions developed during the British rule.
The prohibition of legal advertising is based on its adverse effects on professionalism as commercialization of the legal professional was believed to undermine the lawyer’s sense of dignity and self-worth.
Other reasons for the prohibition include misleading nature of advertisements and the loss of quality in services.
It is believed that advertising would lead to unhealthy competition whereby legal professionals would resort to practices such as fee undercutting and focus less on the quality of the services provided by them, in addition to incurring advertisement expenditure.
This paper attempts to analyze the reasons for prohibiting advertisements by legal professionals, the nature and extent of the prohibition, the constitutional validity of the prohibition and the efficacy of banning advertisements by legal professions in Liberia Rules in the present-day situation.
This paper argues that the law practice in Liberia should be revolutionize and remove from its current practice to catch-up with the moving development of this world.
The intent of this idea is that law is noble and benevolent profession and should not be seeing as business but the reality is, this profession is both a business and noble one.
One who ponder what is the rationale of such law and whether it is applicable in today’s world?
Does it serve the best interest of the public or just to boost the prestige of the legal profession?
Right to information V Rules 27 (Twenty-Seven)
The practice in Liberia by not allowing advertisement by lawyers has been characterized as an issue of curtailment of their freedom of speech and expression. Whether such advertisement amount to commercial speech and if so, whether such speech finds protection within the ambit of Article 15 of the Liberian Constitution.
This piece, however, argues that instead of focusing the debate from the lens of violation of lawyer’s freedom of expression, it would be more revealing if the focus is shifted to analyzing the issue from the perspective of the citizens’ right to information. Therefore, it will be argued that the lawyers’ right to advertise flows directly from the right to information of the common citizen and any curtailment on the lawyers’ right, is by extension, a violation of Article 15, rights of not lawyers, but that of the common citizenry.
Section 1.4 (C) of the Freedom of Information Act says the right of access to information includes both a right to request and receive information, and an obligation on the part of the entity to disseminate essential information that the public would generally want to know, including their core functions and key activities.
Article 15 of the 1986 Constitution of Liberia states “that every person shall have the right to freedom of expression.” It states that right encompasses the right to hold opinion without interference, the right to freedom to speech, the right to academic freedom.
It asserts further that the right shall not be curtailed, restricted or enjoined by government save during an emergency declared in accordance with this Constitution or freedom may be limited only by judicial action in proceedings grounded in defamation or invasion of the rights of privacy and publicity or in the commercial aspect of expression in deception, false advertising and copyright infringement. (Emphasis supplied). (1986 Constitution of Liberia Article 15)
Subsequently, it has been held that rendering professional legal services is a business proposition, and advertisement of the same as such comes within the definition of commercial speech.
Due to the ban on advertisements, in order to avail appropriate legal aid, one can only rely on “friend of friend” or word of mouth, thereby denying the consumers and potential clients of a standardized criteria for determining a “good lawyer”.
Advertising is necessary for the recipient public, as it plays a vital role in aiding the consumers in the process of selecting an appropriate lawyer.
Litigants have no way to shortlist practitioners specializing in a particular field of law. For these reasons, no reasonable interpretation can justify that the ban on advertising is serving any social or public purpose.
The restrictions on advertising denies the public at large of proper and effective guidance in availing the appropriate kind of legal service for their purpose, thus acting contrary to the constitution or public purpose.
Monopoly by old firms and Lawyers
This is a general observation that big firms have the power and resources to publicized their services through means other than direct advertisements, such as sponsoring events, hosting seminars and conferences, etc. However, it is imperative to take cognizance of the fact that smaller firms do not have the resources to publicized in this manner, placing them in a position of disadvantage. Permitting advertisements would prevent monopolizing the market and provide medium and small sized firms a platform to disseminate information about their services.
United Kingdom View
Though initially, owing to the traditional Victorian notions, legal advertising was prohibited in the UK, subsequent to the review by the Monopolies and Mergers Commission in 1970 and the Office of Fair Trading in 1986, whereby the advantages of letting legal professionals advertise were highlighted, the ban in the UK was lifted.
In the UK, the law governing legal advertising is contained under the Solicitors’ Publicity Code, 1990, which has been amended and published in 2016 according to the changing needs of the hour.
Under Chapter 8 of the Code, publicity by a legal professional ought not to be misleading, but should provide sufficient information to ensure that clients and others can make informed decision thus addressing the right to information of the clients.
Further, every letterhead, website and e-mail of the legal professional should read “authorized and regulated by the Solicitors Regulation Authority (SRA)”, the name under which it is licensed and the number allocated to it by the SRA.
The restrictions on advertising are limited by the SRA. Unsolicited approaches in person or by telephone in order to publicized practice is prohibited.
Legal professionals are also allowed to publish their fees provided the same is not pitched at an unrealistically low level. However, details of fees cannot be advertised without making it clear that additional charges may be payable.
United States of America View
In the United States, advertising of services by members of the profession of law is typically permitted but regulated by state court and bar association rules.
Before the Canons of Professional Ethics were published by the American Bar Association (ABA) in 1908, advertising within the legal profession was common. The ABA believed that lawyer advertising was unprofessional and shone a negative light on the profession of law.
They also realized that a court was a place where parties can “inflict heavy losses on one another”.
The ABA wanted to prevent the bringing forth of cases wherein there was no basis for their claim. Lawyers were still allowed to be included in law directories which contained the lawyer’s basic information, including their name and contact information.
They were also allowed to print business cards and use professional letterhead, but otherwise advertising was strictly prohibited.
The Chicago Bar Association believed that “The most worthy and effective advertisement possible…is the establishment of a well-merited reputation for professional capacity and fidelity to trust”.
In the Bates v. State Bar of Arizona case, the Arizona State Bar argued against advertising by law firms because they believed that advertising would place too much burden on the legal system. They believed that the advertising may be too effective and dangerously increase litigation.
They also believed that lawyers would raise the cost of their services in order to compensate for their increased overhead due to the additional cost of advertising. Another fear was that the legal profession would be viewed as a common trade rather than the noble profession they believed they were part of.
Bar associations and consumer advocates were concerned that the members of the public would not protect themselves against false or misleading lawyer advertisements. The bar also argued that legalizing advertising would cause more and more people to pursue a career in law.
They also believed that an increase in advertising would promote a larger client base and would make it harder for lawyers to serve their clients.
In 1972 John Bates and Van O’steen were admitted to the State Bar of Arizona. Immediately after their admittance to the bar the pair began working for the Maricopa County Legal Aid Society. After working there for a period of two years they founded their own practice.
As a firm they handled cases for clients who could not qualify for government grants despite moderate incomes. Bates and O’steen decided that, rather than charge expensive fees for their services, they would focus on a large volume of cases in order to generate their income; as such, the firm focused its practice on low-fee cases such as uncontested divorces, adoptions, simple bankruptcy cases, and name changes.
They realized that in order to obtain the necessary volume they needed to advertise their name and their services to the public. Bates and O’steen placed an advertisement in the Arizona Republic on February 22, 1976.
The State Bar acted reviewed the case. Both Bates and O’steen were suspended from practicing law for six months in accordance with the regulations of the State Bar of Arizona.
Bates and O’steen petitioned the Arizona Supreme Court to review their case on the grounds that a total ban on advertisement violated the Sherman Antitrust Act and the First Amendment to the United States Constitution.
The state supreme court rejected both of their claims, but did reduce their suspensions, in part, because the court believed that Bates and O’steen advertised as a way to test the constitutionality of the ban on advertising within the legal industry.
The Supreme Court of the United States recognized that they had the power to review judicial decisions of lower courts and set the case for argument.
Chief Justice Warren E. Burger threw out the claim that a total ban on advertising by lawyers and law firms was in violation of the Sherman Antitrust Act.
He based his position on the precedent set in Goldfarb v. Virginia State Bar. This case set the precedent that “lawyers engage in trade or commerce,” and lawyers and the practice of law were therefore NOT exempt from the Sherman Antitrust Act.
On the claim of the violation of free speech, the Supreme Court ruled in favor of Bates and O’steen, stating that Arizona’s ban of advertising “inhibit[ed] the free flow of information and kept the public in ignorance”.
The Supreme Court therefore removed the ban on advertising. However, they still allowed the State Bar to “regulate” advertising in order to make certain that the information presented was true and did not mislead others or make false claims. State bar associations across the country quickly began to lift their bans on advertising.
Conclusion
Though there are certain drawbacks of permitting advertising by legal professionals, we need to consider the fact that the indirect methods of advertising are presently taking place at a large scale, due to which the profession is already subject to the disadvantages of legal advertising even when advertising has not been permitted.
However, due to the restriction on direct advertising, we are unable to benefit from the positives of legal advertising. In the age of information and commercialization, the reasons based on the ground that law is a “noble” profession cannot be sustained because consumers of legal services are entitled to obtain the best value for their investment, similar to any other service.
Every litigant ought to be provided with a platform from where he can identify the most suitable legal professional.
In the opinion of this Paper, advertising per se ought not to be barred. Instead, as long as an advertisement promotes legal awareness and gives consumers i.e. clients and potential clients, an opportunity to evaluate the competence of a legal professional, it should be permitted by way of regulating it.
Recommendations
The Liberian National Bar Association (LNBA) should lay down specific rules as to the subject matter and kind of advertising that may be permitted. This fulfils the need for advertising, while at the same time, sufficient checks and balances are provided for in order to prevent unscrupulous advertising.
The advantage of such a mechanism is that it would enable the LNBA to retain a regulatory role in preserving the high standards of the profession, and simultaneously provide a fair ground for lawyers to publicize their services and for consumers to exercise their right to information.
References
Constitution of Liberia (1986)
Freedom of Information Act (2010)
http://docs.manupatra.in/newsline/articles/Upload/C74B86B2-2614-4B56-A50D-8D498A841418.pdf