By Jordan Bélanger, University of Montreal
The practice of advertising legal services has long been a subject of ethical debate within the legal profession. Lawyer advertising was traditionally considered professional misconduct, as it was feared that soliciting clients would erode public confidence in the profession. Following increasing competition in the legal market, the prohibition on lawyer advertising was lifted by Canadian regulators in the early 1980’s. In today’s legal market, many practitioners routinely advertise their services through print, broadcast and online media, most notably in Ontario where a number of personal injury law firms make use of mass media advertising campaigns. Such marketing tactics in the area of personal injury law are raising concerns in the legal community, namely that public confidence in the legal profession is being undermined.
Rules of Professional Conduct
According to the Law Society of Ontario’s (“LSO”) Rules of Professional Conduct (“Rules”), “a lawyer may market legal services only if the marketing:
- is demonstrably true, accurate and verifiable;
- is neither misleading, confusing, or deceptive, nor likely to mislead, confuse or deceive; and
- is in the best interests of the public and is consistent with a high standard of professionalism.”
Although the Rules’ marketing provisions are formulated in general terms that confer much discretion to legal practitioners, their commentary provides some insight as to what types of advertising may be reprehensible. For instance, it suggests that advertisements should not indicate qualitative superiority to other lawyers, raise expectations unjustifiably, or use testimonials and endorsements which contain emotional appeals. The Rules further regulate the manner in which fees are advertised and require lawyers to identify themselves as such in their marketing materials. It should be noted that, for the most part, regulators only intervene in the most egregious cases, as few disciplinary decisions have dealt with advertising issues.
Despite the principles outlined in the Rules, personal injury advertising has sparked a renewed interest in the matter of professional ethics and the marketing of legal services. In southern Ontario, many firms practicing in this area are resorting to advertising techniques that play into the public’s misconceptions of lawyers by making unverifiable claims like “we win or it’s free,” “we’re experts”, “we’re the best,” and “we’re #1.” Much of this advertising can be found in locations that many find offensive, such as hospitals, washrooms, public transit buses and on billboards next to highways. On occasion, lawyers are even impersonated by actors. Often described as ambulance-chasing and unprofessional, these types of advertisements are criticized for being misleading and creating legal work where none exists.
Another issue raised by personal injury advertising is the disclosure of referral fees. Under their current referral-based business model, many personal injury law firms are using mass adverting to recruit new clients, only to outsource some, if not most, cases to other firms in exchange for a referral fee. Although such a practice is permitted by the Rules, there has been contention in the legal community as to whether the use of referral fees should be disclosed in marketing materials. Without more transparency, it is feared that consumers will be misled to believe that the advertising firm will be representing them when that is rarely the case.
Amendments to the Rules
Following much media scrutiny and numerous complaints regarding personal injury advertising, the LSO mandated the Advertising and Fee Issues Working Group in early 2016 to investigate the matter and develop a possible regulatory response. The Working Group made its recommendations, and on February 23, 2017 the commentary to the Rules’ marketing provisions was amended in an effort to provide examples of prohibited marketing.
More specifically, the commentary now states that advertising may not use superlatives such as “best”, “super” and “#1”, or reference awards, rankings and third-party endorsements that are misleading and not bona fide. Particular care should also be taken to ensure clarity when referencing genuine awards, rankings and third-party endorsements in mass media, as there is little opportunity to provide context to potential clients. Lawyer advertising must further avoid any type of “bait and switch” aspect, which entails that it clearly and prominently disclose the practice of referring clients to other firms in exchange for a fee. Hopefully, these amendments should provide a higher standard of professionalism in personal injury advertising, thereby fostering public confidence in the legal profession.
 Law Society of Ontario, Rules of Professional Conduct (June 22, 2000, amendments current to September 28, 2017), s. 4.2-1, online:
<https://www.lsuc.on.ca/lawyer-conduct-rules/> [LSO, “Rules”].
 Ibid at the commentary to s. 4.2-1.
 Ibid at 4.2-1.1, 4.2-2 and 4.2-2.1.
 Law Society of Ontario, “Report to Convocation – Tab 2.2 – Advertising & Fee Arrangements Issues Working Group Report” (June 23, 2016), Law Society of Ontario, at 62 online: <https://www.lsuc.on.ca/
uploadedFiles/For_the_Public/About_the_Law_Society/Convocation_Decisions/2016/Convocation-June-2016-Professional-Regulation-Committee-Report.pdf> [LSO, “Advertising Report”].
 Allan C. Hutchinson, Essentials of Canadian Law: Legal Ethics and Professional Responsibility, 2nd ed (Toronto: Irwin Law, 2000) at 89 (Irwin Law).
 LSO, “Advertising Report”, supra note 4 at 62-63.
 Law Society of Ontario. “Advertising and Fee Arrangements,” Law Society of Ontario, online: <https://www.lsuc.on.ca/advertising-fee-arrangements/>.
 LSO, “Rules”, supra note 1 at the commentary to s. 4.2-1.