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LSUC zeroes in on personal injury advertising

|Written By Alex Robinson

Some participants in a new Law Society of Upper Canada report say public confidence in the legal profession is being hurt by advertising for personal injury law — a finding those in the field say is abundantly obvious.

Deanna Gilbert supports a ban on advertising personal injury legal services. Photo: Robin Kuniski

The Advertising and Fee Arrangements Issues Working Group Report unveiled at June Convocation says: “in personal injury law, some firms are understood to heavily advertise both to attract work that they can take on themselves and to attract clients who could be referred to other personal injury lawyers in exchange for referral fees.

“Most participants accepted that advertising is here to stay, although some would seek to ban it outright on the claim it has led to the commoditization of personal injury and other practice areas, eroded the public perception of lawyers, and threatens the administration of justice,” the report continues. 

The report says in many cases when clients are referred to a personal injury lawyer by a firm that is advertising, they are not “sufficiently aware” of the circumstances of the referral.

While the Law Society of Upper Canada’s Rules of Professional conduct require disclosure and client consent, a working group found that clients do not always know about the existence of referral fees or that they are even being referred to another lawyer.

“It should be clear when licensees are advertising that they are soliciting work that they propose to do,” Malcolm Mercer, the chairman of the working group, told Convocation in its June meeting.

“That may sound like a silly, straightforward proposition, but it has become clear there is much solicitation for work that is not intended to be done but intended to be referred to others in the fee.”

The interim report was issued by the advertising and referral fee arrangement issues working group, which has been tasked with looking at how the law society should further regulate advertising and referral fees.

The report was based on concerns and issues that came out of meetings the working group held with various stakeholders, since a call to input was made last year.

The report outlines a number of options to deal with the problem.

One option would be to require firms to disclose the fact that they intend to refer the services they are advertising. Another would be to simply ban advertising for work that they intend to be referred.

Mercer said that all of these ideas are just options and that the working group will hammer out potential regulatory solutions in the future.

“In respect to all of this, we don’t have answers,” he said. “What we have are concerns and that’s why the next stage is to reach out more broadly.”

The working group was established after the law society heard concerns about the increase in advertising of personal injury law in particular, as well as real estate law. A lack of transparency has been central to many complaints about advertising and the way firms have used referral fees.

Some firms support an outright ban on advertising, such as Thomson Rogers. The firm’s lawyers have argued that heavy advertising has led consumers towards personal injury firms with a large advertising presence rather than the firm with the services that are right for their needs.

“The concern we have is that credentials and other conditions of competency are being lost amongst this noise that’s created by this flood of advertising,” says Deanna Gilbert, a partner with Thomson Rogers.

“So we support a ban and I think that will force members of the public to take a closer investigative look at the lawyers that they’re choosing.”

The report noted that advertising can serve as a tool to spread awareness of spreading legal services, but Gilbert says it is not necessarily positive because of the services that are being advertised.

“Just knowing I can get a lawyer doesn’t help me in the long run,” she says. “Helping me get a competent lawyer is going to help me in the long run. The mass marketing does not help in that sense.”

The report also addressed the issue that over the years, referral fees have also risen to a point where they are sometimes more than 20 per cent. The report said that stakeholders generally agreed referral fees were an important way of making sure a client finds the legal service they need, but that there should be a cap.

The Ontario Trial Lawyers Association has called for a 10-per-cent cap on all referral fees. The report also touches on second-opinion advertising — when a firm advertises in a way that targets clients who already have lawyers. Adam Wagman, the president of the OTLA, called for the law society to act quickly to bring an end to second-opinion advertisements.

“There’s an ad on the radio right now — you can hear it at every Blue Jays game — that specifically says, ‘Are you unhappy with your lawyer? If so make a trade,’” Wagman says. “How can that be interpreted in any way other than that it is intended to influence a person who already has a lawyer to change their lawyer?”

Beyond personal injury law, real estate law was an area identified where a lack of transparency in advertising is causing concern.

The report identified that “all-in fees” advertised by real estate lawyers do not always disclose all costs to the client.

In a market where small price differences can determine which firm a client chooses, it is particularly important they are not misled, the report said.

“There is a lot to be desired in full and transparent disclosure of real estate fees and disbursements that are quoted on the Internet,” says Bob Aaron, a real estate lawyer with Aaron & Aaron Barristers and Solicitors.

  • Marketing Director

    Mike Mcbush
    I had to stop and take note of this article, BC this suggestion of limiting advertising is reminiscint of captive economies like North Korea or Connunist Russia. We live and do business in a free economy that welcomes healthy conpetition. If you cannot find a way to market your firm effectively, then go back to the drawing board and try again. We do not implement laws to limit firms from connecting to potential clients.
  • Do you realize how bad it looks ?

    Dave B
    I work in a jurisdiction with a very stringent ban on all PI advertising. I was opposed when it was introduced, but now support it. Every time I travel somewhere without a ban, it strikes me just how sleazy and low rent this advertising inevitably becomes.
    It inflicts constant damage on the profession and the institutions we serve. Advertising (along with referral fees) pump overhead costs, inevitably leading to higher fees to clients or fewer resources put into actually progressing the claim.
    You probably don't notice when it gradually grows around you, but for an outsider it is like going back to your hometown and seeing a string of porn shops and liquor stores next to your old school.
  • Disrepute to profession

    Greg b.
    Dave you're best to stay in that jurisdiciction because it doesn't sound like you can survive in this legal community. Advertising will never get banned. It's a constitutional right to expand business venture. Some lawyers are brilliant at marketing and some just don't know what it takes. However i do agree that firms that place their names in hospital trauma units where potential clients are most vulnerable is absolutely tasteless and a disrepute to the profession. Firms like Thompson Rogers who want a complete ban on advertising better ask themselves how classy it is to have their names posted on walls in trauma units.
  • Lawyer

    Michael Winward
    Those who advocate a complete ban on advertising should read Rocket v Royal College of Dental Surgeons [1990] SCJ No. 65. Advertising is protected under the Charter.
  • Sour grapes/ - Part 2

    Mike Deluca
    PART 2:

    After reading this article, it seems to me that Deanna and her colleagues at Thompson Rogers are waving the white flag and are saying “Hey, we can’t compete anymore and aren’t seeing the results we’re expecting with our advertising so let’s write an article to show our support in an outright ban on personal injury law advertising.”

    Personal Injury law is a business just like any other business. Why should advertising be banned because some firms are more successful than others? I think it’s poor sportsmanship and in bad taste writing articles like this. Instead wasting time and energy writing articles and blogs about banning advertising, this time and energy should would be more utilized in focusing on new marketing strategies and trying increasing business productivity.
  • Sour grapes/ - Part 1

    Mike Deluca
    PART 1:

    There’s no other way to interpret this article other than being jealous or a sore loser. Let’s call a spade a spade here.

    I never see any articles written about supporting an outright ban on Family Law, Immigration Law, Employment Law or any other field of law except for Personal Injury Law. Why is that?

    Here you have an article which was written by a lawyer (a partner I may add) at Thompson Rogers saying that they support an outright ban on advertising. Keep in mind, this is the same firm that has their firm name up at trauma units in Sunnybrook hospital and St. Mike’s hospital. This is also the same firm that decided to form an alliance with two other top personal injury law firms (McLeish Orlando and Oatley Vigmond) and create a new “super firm” called the Personal Injury Alliance while creating large advertising campaigns to compete with other larger personal injury firms. I’m sure this alliance didn’t form overnight.
  • meaninfgul advertising

    Brian Francis
    A serious problem recently chronicled in Law Times is the proliferation of cases tainted with unchallenged, unqualified and/or partisan hired gun insurer commissioned medico-legal expert opinion evidence (see "Under pressure" - May9, 2016). So why don’t the lawyers who aggressively challenge insurer “experts” incorporate their successes (in the form of adverse judicial findings) into their advertising (example at bottom)? This would make for meaningful advertising which would help clients separate the plaintiff lawyers who successfully challenge the rogue insurer experts from those who are unwilling or unable to do so. In this way the dual problems of misleading advertising and hired gun experts would be simultaneously addressed.

    “...Dr. Marton also conceded that he had not acquired the expertise and training in the assessment of the psychological aspects of chronic pain problems.” (Thevaranjan and Personal Insurance [+] Arbitration, 2006-08-24)

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