Sun | Sep 19, 2021

Editorial | Why shouldn’t lawyers put their names in neon?

Published:Sunday | August 1, 2021 | 1:34 AM

People shouldn’t be blamed if they assume that the General Legal Council (GLC) doesn’t have enough to do with its time, or that it has misplaced its priorities, or maybe has knotted them into a tangle. In the event, the court should help the GLC extricate itself from this snarl by telling it that its canon relating to advertising is an overreach and should be limited to ensuring that the commercial pitches of lawyers are neither false nor misleading.

In other words,it’s long past time that the legal profession, on this front, transcend snooty 18th and 19th century notions of itself and of professional decency, decorum and allow attorneys to promote their businesses on the basis of their expertise and skills and quality of service they deliver without the overbearing efforts by overlords to restrain their trade. That, ultimately, will be good for the consumers of legal services, especially people at the base of the social and economic ladder, who often find it difficult to navigate, and afford, the seemingly distant and arcane world of lawyers.

On this we make two further early observations. One is that there is no necessary equation between lawyers who advertise heavily and charlatans. Second, actually exerting effort, and being seen to do so, which may even involve sweating, does not bring any profession, including the one concerned with the law, into disrepute.

While our concern is the overarching principle, the quarrel between attorney-at-law Vaughn Bignall and the GLC, over how he is allowed to advertise his legal practice, is a matter worthy of attention. It is a metaphor for one element of a struggle between archaic ideas and progressive ideals.

Broadly, the GLC is the regulatory body for the legal profession. It establishes the standards by which lawyers are required to abide by and holds them to account for ethical lapses, up to the point of striking errant attorneys from the lawyers’ roll. This is important. For given the pivotal role of the law, and the legal profession, in the maintenance of social order and as undergirds of democracy, it is right that attorneys have specialised oversight. But the profession’s regulation should be in the context of the time, which appears to have been appreciated at the time of the 1998 canons that allowed lawyers to advertise. To a point!

DO MORE THAN HANG SHINGLES

For while lawyers could do more than hang up their shingles, they were warned that their advertising “shall not be vulgar, sensational or of such frequency or otherwise such as would or would be likely to adversely affect the reputation or standing of any attorney or the legal profession”. Neither were they to “claim or imply superiority for the attorney over any or all other attorneys”, nor could they use “testimonials or endorsements”. Among a host of other restrictions was a bar on advertising for personal injury or fatal accident cases, unless these ads only carried the name of the lawyer and/or his firm, their contact details and that they will “accept instructions” on such claims. Even then, such ads, the GLC insists, have to be approved by its advertising committee, although that, too, is a matter of contention between itself and Mr Bignall.

The quarrel over the requirement of the GLC’s imprimatur apart, it’s hardly surprising that are around the several advertising caveats. Among the most obvious troublesome and divisive of these issues are what should be deemed vulgar and what, in this context, is the determinant of bringing the profession into disrepute. Both of these are significant elements in the stand-off between Mr Bignall and the GLC.

Mr Bignall operates his business under the name of Bignall Law, which he promotes in various fora, including, significantly, on social media. Mr Bignall’s speciality, it appears, is personal injury matters. On the top of the building from which he operates his practice in Kingston is a large, lit sign saying ‘Bignall’. On the same building is a smaller sign saying ‘Bignall Law’.

FUNDAMENTAL QUESTION

Perhaps the more fundamental question raised by Mr Bignall in a long-running tussle with the GLC is his question of the constitutionality of the GLC to regulate his advertising – a matter he has taken the court as part of a challenge of the council’s move to censure him for ostensible breaches of the canons with his advertisement. Such an action, said Mr Bignall in one affidavit, breached “my right to freedom of expression”.

That, of course, is a weighty question to be determined by the court, but the GLC’s posture over the sign on the building infuses the debate with a sense of comedy that highlights the anachronism of its regulations and the legal profession grasp for the caricatured version of itself.

The sign ought to be reasonably advertising, the council says. We agree. But then the council argues that given the size of the sign, its illumination at night, its location on a busy thoroughfare and the fact that it’s near a parish court makes it “sensational and vulgar and consequently a breach of the said canon”.

What ought to apply with respect to advertising by laws is what applies to everybody who advertises – Section 37 of the Fair Competition Act. An advertiser isn’t supposed to “make a representation to the public that is false or misleading or is likely to be misleading in a material respect”. That includes falsely representing to the public in the form of a statement, warranty or guarantee that services are (i) of a particular kind, standard, quality, or quantity; or (ii) supplied by a particular person or by a person of a particular trade, qualification or skill”. That should effectively capture charlatans and rogues posing as lawyers, who a vigilant GLC should quickly weed from the profession.

A lawyer who decides not wait decades on the possibility of being invited to the closed shop of QC and places his name on a neon marquee, atop of a high-rise building may offend the sensibilities of some people. But no harm is done if no false claims are made. It is even better if he’s good at his job and the market knows he exists and that his services are competitively priced.