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Legal advertising under the microscope

Some lawyers want ban as law society looks at amending the rules
|Written By Tali Folkins

Darcy Merkur has had enough. Whether it’s misleading information about the amount of experience a law firm has on display with apparent pride on the side of a bus or phallic innuendo suggestive of big settlements strategically placed above men’s urinals at the Air Canada Centre, legal advertising in Ontario, in his view, has gotten out of hand.

Darcy Merkur wants to see a total ban on advertising in the legal industry.

“It’s everywhere. It’s misleading at various times regarding trial experience, overall experience. It’s a real problem,” says Merkur, a personal injury lawyer and partner at Thomson Rogers.

“We think the public has been misled. We’d love some solutions.”

The problem is particularly acute in personal injury law, he says, because of the frequency of contingency-fee arrangements in that area. Generating new files becomes extremely important to firms, leading to intense competition for clients and, in turn, advertising that some lawyers believe has spun out of control.

The worst offenders, in Merkur’s view, are firms that boast about extensive trial experience when in fact they have very little.

John McLeish, a founding partner of McLeish Orlando LLP, agrees that something needs to change. For McLeish, misrepresentations about lawyers’ experience and the settlements they can achieve pose a real threat to many people struggling with how to cope financially after an injury.

“The average person on the street doesn’t know how or doesn’t have time to do due diligence,” he says. “So they’re vulnerable.”

On top of that, he says, much of the advertising is offensive and is “sullying the profession.”

“For the most part, it’s tasteless and tacky and I would describe it as a race to the bottom,” he says.

The concerns arise as the Law Society of Upper Canada prepares to take another look at the issue. Last month, Convocation agreed to a call for input around a set of proposed changes to its existing regulations on advertising. Interested parties have until mid-October to comment on whether the law society should make the proposed changes, leave things as they are or consider other options.

Among the proposed changes are additions to existing commentary that give examples of marketing practices that would contravene the law society’s rules. They include “failing to disclose that the legal work is routinely referred to other lawyers for a fee rather than being performed by the lawyer;” “misleading about the size of the lawyer’s practice or the areas of law in which the lawyer provides services;” “referring to fee arrangements offered to clients without qualifications;” and “advertising awards and endorsements from third parties without disclaimers or qualifications.”

The commentary also refers, in language dealing with instances of “marketing practices which may be inconsistent with a high degree of professionalism,” to “images, language or statements that are violent, racist or sexually offensive, take advantage of a vulnerable person or group or refer negatively to other lawyers, the legal profession or the administration of justice.”

For Merkur, the proposed changes are a step in the right direction but they don’t go nearly far enough. He wants to see a total ban on advertising in the industry.

McLeish agrees. “I would be the first one to put up my hand for a total ban,” he says.

Maia Bent, president of the Ontario Trial Lawyers Association, calls the proposed changes a good first step in addressing a lack of transparency in much of Ontario’s legal advertising. She hopes the law society will strictly enforce the changes if it approves them.

“The most important element is going to be enforcement,” says Bent. “There’s a sense that some firms are breaking rules because they can get away with it. The law society is assuring us [enforcement] is going to be a point of emphasis for them and we’re definitely welcoming that.”

Some advertising can be useful, she says, adding a complete ban “wouldn’t be necessary if the most egregious conduct was brought under control.” But calls for a ban, she says, do “speak to the frustration of people who would like all advertising to be tasteful and with integrity.”

Trevor Farrow, a professor at Osgoode Hall Law School who specializes in professional and judicial ethics, says there are tensions that require balancing when it comes to regulating legal advertising. On the one hand, says Farrow, the more aggressive advertising that has emerged in recent years puts a heightened obligation on law societies to ensure lawyers properly follow the ethical principles they’ve adopted.

On the other hand, he says, advertising can be an element in increasing access to justice by “empowering people to understand what services are available, what they are, where they can go, who they can talk to, and what they can cost.” For example, he says, many people may be aware it’s possible to pay for legal services on a contingency-fee basis only because they’ve seen ads to that effect.

But advertising, he notes, can be a double-edged sword.

“Advertising can be done in tasteful ways, in fair ways, and in the alternative, in ways that bring the profession in disrepute. That’s the line that the law society needs to walk because the public needs to have confidence in lawyers’ ability to fairly and properly and honourably regulate themselves.”

Whatever the solution may be, an all-out ban isn’t it, says Farrow. “I think banning advertising is impractical at this stage,” he says.

“It’s out of touch with modern social and business realities, and I think if advertising is done honourably and well and with integrity, it can be a tool among many that help people understand and access legal services that they need. If we can’t speak to the public, if we can’t be out there in different ways, how is the public going to know what we do?”

For more, see "Is it OK for personal injury firms to run TV ads?"

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    Celina Watson
    this firm should be more concerned about changes to legislation that will actually affect their clients instead how other firms advertising. Where is their article about how accident benefit victims (their clients) will be affected by these changes and how they will suffer when the benefits are significantly reduced. Seems like they are upset they can't afford to advitse more.
  • Anya Tamir
    To me its all a bit funny. Dont like the innuendo in men's washrooms? Just draw a bigger one and place another name next to it! Grafiti justice ! :)

    Unless there is another issue here, which is not related to lost revenue, I dont think its worth the time. Of course false advertising is harmful but we all know how this business works.
    Better focus on dealing with eroding ABs then spend time and resources on fighting each other.
  • Jeff Wilkins
    Anyone who has been in this field for a while knows there are a handful of firms that have basically bought off social workers, OTs and doctors who receive cash kickbacks for referrals. Ironically, it tends not to be those who are actively advertising. Just walk into the major hospitals in Toronto and you will see entire nurse's stations paid off.
  • Steve Wynn
    Wow. After reading this, looks like Darcy's whining like a little girl. It's an open market, fair game to advertise. Just because PIA's ads aren't generating as much buzz, hype and / or leads doesn't mean PI lawyers shouldn't be able to advertise anymore. It's a business. Get creative and find a more effective way to advertise instead of being jealous and crying to the LSUC. Boo hoo Darcy.
  • Heather Suttie
    Advertising is always a hot issue that triggers opinion, much of which tends to be subjective.

    Advertising won't go away and neither should it. Legal is a service industry and like other service industries, such as financial, etc., should be able to advertise.

    To instil trust, however, means advertising must be done in truth and with transparency.

    This is why advertising campaigns that are well-considered in terms of addressing the needs and/or wants of a tightly targeted audience, and executed with class and good taste will always be a credit to those who do it well.
  • Sees through this ar
    This article is totally self-serving. This comes from the same firm that has bus ads all over which read 'seriously injured?'. Perhaps the PIA should be more concerned with changing the laws which continue to hurt their clients...
  • sheldon tenenbaum
    Take a drive in Buffalo or Florida. Ontario has a long long way to fall (or as some would say, a lot of catching up to do).

    Nothing's tougher than a Diamomd.
  • James Bliwas
    The issue of advertising by lawyers generally has been around since the late 1980s when the US Supreme Court said bar associations couldn't prohibit it, and soonafter Canada allowed lawyers to place ads.

    While I am in favor of letting lawyers run TV, print and on-line ads, it seems that some guidelines are needed. For example, mutual funds are required to say that "past results are not indicative of future performance." Perhaps PI law firms need a similar disclaimer.

    Language telling people that they may be referred out for a fee could be useful but I'm not sure most consumers care.

    Beyond the specifics of this debate, though, it strikes me that this is the same kind of "it's gotta stop!" flare-ups that happen frequently in the industry. Remember the debates over the emergency of Cognition, or Axess Law in Walmart?
  • Eric in Toronto
    A total ban on advertising? Really? Look, I agree that some of the endless we-buy-your-gold-style commercials for PI firms these days are going overboard, but a total ban on advertising in the industry would do nothing but favour existing, well-established firms.

    It is already immeasurably harder for new lawyers to break into the business with insanely high debt loads, articling fees through the roof and dwindling articling opportunities. Now the older generation of legal professionals wants to stop us from advertising too? Your elitism and entitlement is showing. Could you at least be less obvious about it?
  • Kara R.
    How about the misleading advertising where mega-sized-firms feel the need to pop-up in the yellow pages and on arena billboards in small towns. Some go out of their way in a misleading manner to make it appear that they are local or quasi-local firms. Where is the "professionalism" in that? The "tackiest" advertising I see in personal injury is when I do go to a city and see ads on everything at a hospital including the gate arm into a parking lot! A "ban" on advertising only helps the mega-firms and harms the small firms. Not to mention - how exactly do you define "advertising"?? Shall we ban LinkedIn profiles?? Shall we go back to having our fees tucked into the hoods of our robes??
  • Brand Law
    Sounds a little like sour grapes.
    Some firms feel that their money is better spent utilizing traditional advertising media rather than the millions other firms spend on enticing files from hospital employees such as discharge planners or on splashy signs on hospital walls or waiting rooms. These methods cost multi millions or hundreds' of thousands and for years was the way things were done. Now the playing field has changed and some just do not like change... Competition is good.

    Consumers are not stupid they will check other information sources, the web, reviews, friends and references.

    False advertising is an offence for any brand utilizing the media if this is the case use the law to ensure consumers are protected other wise we have the right to make our own decisions as to whom we choose and how we choose.
  • Ed Olkovich
    Banning advertising is senseless and impossible.
    That ship has sailed.
    The LSUC must protect the public from false and misleading ads.
    It does not need to protect us from competitors
  • ruth honigsberg
    merkur's comments are a clear display of his own advertising failures as well asa clear validation of his major competitor's advertising success.....i'd like to see his credentials in advertising tastes and etiquette....its a free market
  • Rory Barnable
    It would certainly save some firms quite a lot of expense. Perhaps we can look forward to these firms leading the way by implementing a voluntary total ban, and thus paving the way to industry reform with the spinoff of massive cost savings for the industry?
  • Steve Szentesi
    True and accurate advertising is, in the legal profession, as important for consumers and competition as in all other professions and sectors. Any other (false) arguments that legal services are somehow different than other products/services offered by hundreds or thousands of other businesses should be resisted with significant scepticism. In particular, consumers must ask whether restrictions on advertising are meant to protect consumers or the businesses offering services / products?
    To Mr.McLeish who self-righteously wants a"total ban" on advertising. John would take us back to the days where he could have the monopoly on catastrophic clients and cut out the little guys who cannot compete. With all due respect, why don't you tell your real motives John ?
  • Jeff Evans
    The very group that has giant billboards off the Gardiner wants to ban advertising? Let's also extend the definition of "advertising" to include entire hospital zones named after these firms. If that's not "tasteless" I'm not sure what is.
  • Brian Francis
    RE: "entire hospital zones named after these firms"
    In an earlier Law Times column these firms called this "subtle advertising" as opposed to "tasteless" advertising. We are supposed to accept that pasting the firm's logo to hospital wheelchairs and emergency waiting room chairs is somehow superior to the so-called "crass" advertising of the allegedly lesser firms. Seems to me the best form of plaintiff lawyer advertising would be to aggressively challenge the often dubious qualifications of insurer defense medico-legal "experts" instead of sleepily letting clients be skewered by the (under)unqualified ones.
  • Brian Francis
    Perhaps these periodic laments about sketchy advertising in the personal injury context are more about advertising than about providing concrete information to consumers on how to do this so-called "due diligence"when shopping for a decent plaintiff personal injury lawyer? (example below)

    The battle for the personal injury dollar - Canadian Lawyer

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