Last year, the New York Times reported on some colourful online behaviour by US lawyers. One lawyer referred to a judge on his blog as “Evil, Unfair Witch”; another may have revealed confidential case information online while a judge was found to have posted what is diplomatically described as “off-color humor”. The article refers to the online habits of younger lawyers, accustomed to the informal, fire-and-forget atmosphere which prevails online. This attitude is increasingly coming up against old rules applicable to lawyers’ behaviour.
A range of rules apply to solicitors, primarily the Solicitors Acts 1954 to 2008 and the Law Society’s Code of Conduct. The Code of Conduct doesn’t specifically deal with public criticism of the Courts but does say that if a solicitor issues a statement to the press in relation to a case (s)he should ensure that (s)he is not in contempt of court. With respect to other solicitors, it states that a solicitor should not use insulting language or indulge in acrimonious correspondence.
For solicitors who blog or tweet, the Solicitors Advertising Regulations 2002 may have greater relevance. An advertisement excludes communication primarily intended to give information on the law, so a true blog is unlikely to be subject to the Regulations. This would be fair, as books, articles and interviews relating to a legal topic are listed as examples of communications primarily intended to give information (and therefore not advertising).
However, in the case of an article or interview, if the placement is partly paid for by the solicitor, it is advertising. So, if a blogging solicitor pays WordPress for a domain name hosting service (as this one does), is that solicitor paying for part of the space in which the article(s) appear?
Solicitors rarely advertise and when they do, their ads tend to be general in content. If you’ve ever wondered why, you might be interested in the prohibitions contained in the Regulations.
Advertising by solicitors must not:
- be likely to bring the profession into disrepute or be in bad taste.
- reflect unfavourably on other solicitors.
- suggest specialist knowledge superior to other solicitors.
- be published in an inappropriate location (eg. in or on any form of transport or on the same page as death notices in a newspaper).
- encourage anyone to make a personal injuries claim.
The rules don’t end there. A solicitor is prohibited from using the phrase “no foal, no fee” in an ad. The prohibition is aimed at limiting personal injuries claims and reducing the compensation culture. However, the State-run Citizens Information website helpfully tells us:
Many solicitors take on cases on a “no foal, no fee” basis. This means that you will not be charged a fee by your solicitor if you do not win the case. This is most common in personal injuries cases, i.e., where you have been injured in an accident.
You might fear that a solicitor will invoice you on sight and think it would be nice to see a solicitor advertise a free first consultation: that is prohibited. Perhaps you live in a remote area and would be interested in a solicitor who advertises home visits: that is prohibited. An advertisement cannot include any cartoons (which would surely disappoint Dr. O’Dell if he were in private practice), cannot include dramatic or emotive words or pictures or make reference to a calamitous event or situation.
Many of the rules are obviously aimed at protecting the integrity of the profession, but some rules appear to limit competition and may be outdated. The Competition Authority’s 2006 report on the legal profession states that some of the restrictions are unnecessary.
The Competition Authority recommends, for both barrister and solicitor advertising, that the existing rules should be reformed. Truthful and objective advertising gives clients useful information and helps them to choose among competing lawyers. Advertising should be controlled in a more pro-consumer manner by way of rules that focus on preventing factually inaccurate advertising or advertising which would bring the administration of justice into disrepute.
It recommended the Law Society take action by December 2007; to date, this has not happened.