Opinion: The lawyer and the rule against advertising

A few years ago, I had the privilege of being a part of an international conference in Accra. At one of the group sessions, the issue of lawyer advertising came up. I argued forcefully against the current rules that prohibit advertising and described them as colonial relics that have become shorn of their relevance.

The other participants applauded me “to the very echo”. The then President of the Ghana Bar Association (GBA), who chaired the session, disagreed with me.

Those rules together with a few other undesirable ones continue to sit pretty on our statute books.

England

The practice of law in England with its Greco-Roman influences, rules, conventions and practices dates as far back as the 12th Century. At some point, the advocates were clergymen until the Church banned them in 1207. At that time and many years later notions of public service and nobility were the crowning glory of the advocate.

As far back as 1340, England separated barristers from solicitors. In simple terms, the barristers went to court and the solicitors were their clients. The solicitors, on the other hand, were the ones that interfaced with the outside world.

It is said that only nobles with marquee surnames and means practised as barristers and solicitors. They did not advertise their noble profession. In that era, touting and advertising one’s “trade” was deemed befitting for only those on the lower parts of the ladder of social standing.

Through changing vistas, the Law Society emerged in 1825 to regulate the law profession, causing the Society of Gentleman of 1793 and all other such bodies to pale into oblivion.

In 1970, restrictions against advertising started experiencing a subtle pushback and this intensified in 1978. This culminated in the Law Society’s decision starting from 1st October 1984 to permit solicitors in England and Wales to advertise in newspapers, on radio and at their premises. Currently, barristers are also “permitted to advertise in any way that is consistent with the British Codes of Advertising and Sales Promotion”.

The United States of America

Having been colonised by the British, the Americans quite naturally embraced the rule against advertising. They also adopted the distinction between solicitors and barristers but only for a relatively short period of time. Indeed many Americans who wanted to become lawyers at the time actually studied in England and returned with the imbibed culture.

The American Revolution, however, marked the beginning of the rebellion against strict British tendencies but did not immediately lead to a removal of the restrictions on advertising by lawyers.

It all changed when two young men, John Bates and Van O’Steen set up a legal clinic in the State of Arizona in 1974. Two years later, as their practice began to fall on hard times, they advertised their practice and its relatively low rates in “The Arizona Republic” newspaper, against the rules of the Arizona State Bar.

The disciplinary committee of the State Bar recommended a six-month suspension each for the young lawyers. The young men sought refuge in the Arizona Supreme Court but lost. They proceeded to the United States (US) Supreme Court itself, where the Court relying on its earlier decision affecting pharmacists, ruled that the lawyers had a 1st Amendment right to advertise their service. The court relied on “the commercial speech doctrine”. That was in 1977.

The US Supreme Court expanded its decision in 1982 in the case of In re R.M.J. This led to changes in the American Bar Association (ABA) rules.

Kenya

In 2012, in the case of Okeyo Omwanza George & Anor vs. Attorney-General & 2 Others, a newly admitted lawyer convinced Justice David Majanja to declare among others that the rule prohibiting Kenyan lawyers from advertising was unconstitutional.

In 2014, the Law Society of Kenya approved rules to enable lawyers to advertise.

Ghana

Being a former British colony, Ghana at independence in 1957, had all the trappings of the strict rules preventing advertising by lawyers. However, Ghana never adopted the British distinction between barristers and solicitors. In Ghana, a lawyer is both a barrister and a solicitor at the same time. However, as of 2017, Ghanaian lawyers do not enjoy the right of advertising that barristers and solicitors in England & Wales currently enjoy.

The Legal Profession (Professional Conduct and Etiquette) Rules, 1969, LI 613 forbids a practicing Ghanaian lawyer from advertising whether directly or indirectly except that they may have their names on nameplates and stationery.

Analysis of the Ghanaian Situation

As students of Advocacy and Legal Ethics at the Ghana School of Law, we were taught that it is the quality of your work that will sell you. We were told that satisfied clients will tell others about you and bring you repeat business. We were taught that touting and advertising would debase our noble profession.

What that viewpoint does is to force all lawyers to scramble for space under the wings of old and established law firms for as long as they can endure it. It cements the hold of these few names and denies newer and smaller firms the opportunity to compete and to grow.

It also creates social cost in the sense that clients are denied critical information about which lawyers are in the competitive space and with what levels of expertise and at what competitive price. In the end, most of the legal work ends up going to a small group of law firms who in a sense become a composite monopoly and become placed wittingly or unwittingly in a rent-seeking posture. They dictate the terms and pricing of the market, defend the rules that protect their interest and cause deadweight loss by eliminating those who cannot afford their rates. The younger generation is forced to wait for its turn and the cycle continues.

If a lawyer has expertise in energy law, corporate finance, mergers and acquisition or any other area of law, she is not allowed to announce it to a client seeking that expertise. For that matter, the client is likely to end up at a law firm whose name is synonymous with law in general but not necessarily the expertise required.

The claim that your work will sell you also assumes that all work is done in a courtroom and in the open. It is a faulty way to look at the law in this day and age.

Meanwhile, foreign law firms who are not regulated locally find ingenious ways including writing letters and directing clients to their websites (advertising). They enter the local market and take the choice legal jobs, make a lot of money, keep their skills updated as a result and still fall on the established old law firms for local assistance when required.

Today, law practice is not limited to the noble and wealthy class. It is as much a business as any other. It requires investment, sacrifice and the payment of taxes. It is subject to nearly the same innovations demanded by the efficient market.

We must remove the shackles of these rules against advertising and doing business generally for lawyers to enable our country to reap the full benefits of this potentially viable area of our national life. After all, competition breeds excellence.

 

Author: Nii Arday Clegg

The writer is a practising lawyer in Ghana.

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