Is it OK for personal injury firms to run TV ads?

In a highly competitive marketplace, personal injury law firms are increasingly taking to the airwaves to land clients.

Turn on your local all-news radio station, and you’re likely to at some point hear a commercial pitch from one of Ontario’s personal injury boutiques touting all of the reasons why you should go to them if you’re hurt in an accident.

Yet the high-visibility approach isn’t for everyone. Just ask Bernard Gluckstein of Toronto’s Gluckstein & Associates LLP.

“People who are spending a considerable amount of money on advertising, to a great extent, are the younger firms,” says Gluckstein, who is a certified specialist in civil litigation. “Unfortunately, the unsuspecting public doesn’t really know who the good firms and bad firms are.”

The in-your-face approach taken by some firms must come as a shock to senior members of the bar like Gluckstein. When he began practising in 1962, the Law Society of Upper Canada prohibited advertising.

“We learned to make sure that we gave great client service and relied on our clients to refer further cases to us,” he says. “Also, by giving good service, the health-care professionals got to know who you were.”

Of course, a firm’s approach to advertising likely reflects its target clientele. Firms interested in grabbing a high volume of clients for representation on relatively non-complex, low-value matters are likely drawn to the opportunity to get their name on TV, billboards or radio ads.

It’s certainly their best chance to get top of mind for people who otherwise would likely open the Yellow Pages to research their legal service options.

Lawyers interested in taking on high-value cases likely involving catastrophic injuries would simply be forced to field a high volume of phone calls from prospective clients with low-value matters and refer them to other firms if they advertised heavily in the mainstream media.

Gluckstein says most of his firm’s referrals come from previous clients and he longs for the days when the law society prohibited law firm advertising.

“I’m finding now that there are a lot of firms who aren’t qualified [but are] advertising that they’re specialists in the field,” he says. “They get the case and then they refer it out to counsel.”

There’s good reason for such firms to take a pass on cases that they find go beyond their level of expertise.

“If somebody puts themselves out as an expert in a particular field and if they handle the case and they don’t handle it to the extent that an expert would handle it, they’re opening themselves out to a malpractice suit,” he notes.

Meanwhile, Gluckstein suggests personal injury firms focus their advertising investments on specific segments of the health-care profession that have traditionally been a key source of referrals for high-value matters.

But that’s changing. Hospitals have recently indicated that their staff members, such as doctors and social workers, aren’t able to refer patients to lawyers.

That shift has prompted firms to modify their campaigns to what Gluckstein refers to as “subtle advertising.” That means firms are now more likely to sponsor events at or involving hospitals or health-care professionals.

“Just to allow the health-care professionals to know they’re there, not that they’re going to get direct referrals, but somebody may come to one of the doctors or social workers and say, ‘What do you think of this firm?’ They’ll basically say, ‘It’s a good firm. They know what they’re doing.’”

Gluckstein says that arrangement has worked out well for lawyers and hospitals alike. The lawyers get the increased exposure and promotion of their services, while hospitals have benefited greatly from the sponsorship funding provided by law firms.

James Howie of Howie Sacks & Henry LLP says his firm is most concerned about enhancing its reputation among other lawyers in order to foster referrals. That has meant a high portion of his firm’s ad investment goes to legal publications.

“We don’t consider [the consumer press] to be of any great merit to our firm,” says Howie, who notes that his firm doesn’t even advertise in the Yellow Pages.

“I know that other firms seem to do it quite regularly. You can open the pages of the Sun or turn on 680 News radio and you will hear ads for other personal injury firms. I suspect that the reason they do it and continue to do it is that it attracts the type of work they would like.”

Howie says it’s up to the law society to determine the legitimacy of law firm ads. Still, he admits he “might find some ads mildly offensive. But I haven’t heard any ads that are horribly over the top.”

He notes that before any advertising was permitted, Ontario lawyers would likely have found any such commercial content offensive. “Times have changed,” he says.

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