Protecting their own turf
LAW SOCIETY’S UNNECESSARY AD RESTRICTIONS ROOTED IN ELITIST MENTALITY
The Law Society of Upper Canada (LSUC) is alleging that Toronto personal injury lawyer Brian Goldfinger has committed misconduct because he “refers to himself as the lawyer with the golden touch” in advertisements for his services, among other marketing transgressions.
To most of us, this proves only that Goldfinger is guilty of corny wordplay. But for the LSUC the pun is a violation of the rules, because it “suggests that and the manner in which he provides legal services is qualitatively superior to other lawyers and their services.”
Now, in the real world, that’s sort of the whole point of advertising. However, implying that you’re better than the other guys is a big red flag under the marketing provision of LSUC’s Rules of Professional Conduct for lawyers. Also problematic are “raising expectations” and “using testimonials or endorsements which contain emotional appeals” in ads.
I’m not sure what LSUC thinks the ideal ad for a lawyer would look like. Maybe: “Hire me! I’m pretty much the same as every other lawyer, and I may win or lose your case for you. Could go either way. But take it from my client Joan Smith, who says of my work for her, ‘ It was fine.’”
The point here is not that LSUC is doing anything profoundly troubling. That honour is reserved for the society’s much- discussed mandated statement of prin- ciples, which foists compelled speech on lawyers as a condition of licensing.
But the Goldfinger case is still an important reminder.
For all their talk of maintaining the dignity of their profession and protecting consumers, law societies remain, at heart, elitist cartels that place unnecessary restrictions on their members and would- be members. If they are protecting anything, it’s often their own turf; which might explain why the complaint that alerted LSUC to Goldfinger’s ads came from competing personal injury lawyers, not from dissatisfied clients or consumers.
Clearly lawyers shouldn’t be allowed to lie in their advertisements. That’s fraud, and it’s already illegal, regardless of LSUC’s pronouncements.
I’m in no position to say whether or not Goldfinger’s ads and website fall into this category of criminal decep- tion. ( The Toronto Star has implied that several aspects of Goldfinger’s marketing are dubious.) But the point is that if they do, we already have an objective mechanism to deal with it that doesn’t require deferring to the particular tastes and pretentions of law society benchers.
Because let’s face it. When it comes to lawyers advertising, particularly in the personal injury field, “taste” does play a role.
In a 2012 Canadian Lawyer article on the subject, personal injury lawyer Roger Oatley complained that hardsell advertising “has done the perception of our profession harm. Something ought to be done to ensure good taste ( emphasis mine), to ensure that consumers are not misled.”
It’s just not good manners to chase ambulances or run cheesy ads of tearful accident victims. It’s not the image LSUC, or other law societies, want to project.
The question is, is it fair to subject all lawyers to a highminded etiquette police? Is it fair to anyone, given that crass or unsubtle commercials may be the only way that a lot of real victims who deserve compensation will ever be able to find ( and thanks to contingency fees, afford) a lawyer?
And speaking of affording a lawyer, let’s not forget that a significant reason legal fees are so high is that law societies close off the profession through elaborate education and licensing schemes. Schemes that often have little relevance to a person’s ability to perform competently, let alone well, as a lawyer (I say as a former lawyer myself ).
LSUC has been focusing on diversity lately, leading to, among other things, the problematic mandated statement of principles I mentioned above. The society is right to be concerned. One of the legacies of most professional associations with regulatory roles is a history of keeping minorities (racial, religious, gender, etc.) out of the profession, and the LSUC is no different.
But it’s interesting (if predictable) that LSUC is ignoring the one step that would have the greatest effect on increasing the diversity of the bar: eliminating LSUC’s monopoly on licensing.
Such a move would open up the legal profession to low- income and non- traditional students who can’t afford the current expensive and rigid route to legal practice.
Those lawyers who value LSUC and its activities, history and reputation — as many do — would be free to remain affiliated.
The difference is that those who just want to make a living as a lawyer without the red tape would be free to go it on their own. And to give themselves the flattering nickname of their choice.