Ethics FAQs - Advertising

The general solicitors' advertising rule is to be found in the Solicitors Rule 2007.

Section 36.1 to 36.3 say that your advertising must not be false, misleading, deceptive, likely to mislead or deceive, vulgar, sensational, or likely to bring a court, you, another solicitor, or the legal profession into disrepute.

Sections 36.4 and 36.5 contain the rules about the Queensland Law Society’s Accredited Specialist Scheme, and restrictions on advertising as a specialist.

There is a good introduction to solicitors' advertising generally by Neil Watt in this Proctor July 2008 article.

In addition of course, under the Australian Consumer Law (Cth) (formerly the Trade Practices Act 1974 (Cth)) and by the Fair Trading Act 1989 (Qld)) there are penalties for making false or misleading representations - see s.29 of the ACL.

In 1996 the Federal Bureau of Consumer Affairs issued Guidelines for the Advertising of Legal Services. These guidelines aim to assist lawyers to avoid making misleading or deceptive representations.

The Law Institute of Victoria has also issued some Advertising Guidelines.

‘Casting the first stone: Lawyers’ liability under s 52’ Natalie Skead (2008) 16 TPLJ 6.  This article on the former Trade Practices Act provisions is available from the Supreme Court library on request: Document Delivery.

See the Personal Injuries Proceedings Act 2002 (PIPA), Chapter 3 Part 1 (sections 62 to 69).

The Legal Services Commission (LSC) is the regulatory body for PIPA, and has issued three guides:

• A guide to advertising personal injury services (June 2009)
• A guide to advertising personal injury services on the internet (June 2009)
• Advertising personal injury services - internet search engines and non-lawyer websites (February 2010). 

This most recent guide deals with 2 issues: 

1. advertising through “sponsored links” on search engine results pages on websites such as Google - essentially the content of these is restricted in the same way as print advertising
2. arrangements for referral of personal injury clients to law practices by non-lawyer referral agencies – the referrer’s website needs to comply with PIPA. 

Advertising on radio, television, cinema and recorded telephone messages is not allowed.

Advertising in print is limited to your name and that of your law practice and contact details, and details of your areas of practice or speciality, and you are not permitted any pictures. The same applies to advertising on a website other than your own.

However, on your own law practice’s website, in addition to the above, you are able to include statements about:

1. the operation of personal injury law and a person’s legal rights under that law 
2. the conditions under which you are prepared to act - this can include details of no win no fee arrangements.

There are also some restrictions on your use of pictures on your website.

The LSC's website comparer helpfully illustrates the restrictions on advertising personal injury services on your own website, and how and where pictures are permitted.

As well as the guides detailed above, the Legal Services Commissioner, John Briton, has made several speeches in which he has given further details of his views on personal injuries advertising:

• Ethical Issues in Personal Injuries Practice: Advertising Restrictions and Guidelines (February 2009)
• The Restrictions an Advertising Personal Injury Services (July 2008)
• Ethics and the Personal Injuries Lawyer: Compliance, Spiritless Compliance, Skilful and other Evasions (June 2007)

In his July 2008 speech the Commissioner sets out his office’s approach as follows:

We interpret the restrictions strictly, and deliberately so, in order to leave the least possible room for slippage and the thin ‘end of the wedge’ arguments that would inevitably accompany any broader interpretation. This seems to us to be the best and probably the only practical way to achieve some certainty and to keep a level playing field – to look after the majority of practitioners who do the right thing and who are rightly annoyed by and stand to be disadvantaged by the minority of their colleagues who push the boundaries.

There are also restrictions on touting and referrals in sections 67 to 68 of PIPA.

The LSC will not answer enquiries from solicitors about personal injuries advertising (unless there is a pending investigation) and will refer enquirers to the QLS. The number to call at the QLS is 3842 5843 or email h.moses@qls.com.au.

In personal injury advertising, under PIPA you cannot use this or any similar phrase except on your law practice's own website.

Generally, use of this or similar expressions, without qualification, is likely to be misleading or deceptive, and so would be a breach of s.36 of the Solicitors Rule 2007 unless at the time of advertising you intend to indemnify any unsuccessful client against payment of costs to any other party and the client is not required to pay disbursements.

Otherwise, you would have to take great care to ensure that there is clear disclosure in the advertisement of any sums that could be payable by the client regardless of the outcome of the case, specifically addressing the possibility of liability for disbursements or third party costs.

In the case of Legal Practitioners Complaints Committee and Browne [2006] WASAT 201 the Western Australia State Administrative Tribunal found that the words “no compensation = no legal fees” was misleading and amounted to unprofessional conduct, as a member of the public may think they have no liability for any fees or costs, rather than just those of their solicitors. The Committee in this case also complained that the advertisement did not disclose that a client may have a liability to the law practice for fees and disbursements in the event that the law practice ceased to act for the client, although the Tribunal did not make a finding in relation to that.

You should not advertise “no win no fee” for criminal law and some family law matters, as such agreements are prohibited by s.323(2) of the Legal Profession Act 2007.
 

There are no longer any restrictions on touting generally. However, for personal injuries work, there are prohibitions on referrals and touting - see ss.67 to 68 of PIPA.

Also, s.32.1.2 of the Solicitors Rule 2007 is the rule against “ambulance chasing” – you cannot seek a retainer in a manner likely to oppress or harass a person who as a result of recent trauma, injury or other circumstances may be at a significant disadvantage in dealing with you at that time. Section 32 also outlines your obligations in relation to the payment or receipt of commissions, referral fees, etc (“any fee, benefit or reward”).

The Legal Services Commission (LSC) has for some years been reviewing Yellow Pages for compliance with the PIPA restrictions, as well as more recently systematically reviewing law practice websites.

If the LSC believes your website does not comply, it will ask you to make amendments within three months, failing which you would risk disciplinary or civil proceedings. See the LSC Annual Report 2008-09 pp 43-46.

There have not been any proceedings taken under the Queensland legislation to date, but several cases have been brought in NSW for breaches of similar legislation. See Legal Services Commissioner v Malouf [2005] NSWADT 215 and Legal Services Commissioner v Keddie [2008] NSWADT 185.

These cases saw the solicitors involved publicly reprimanded and heavily fined – which would suggest that any breach of the Queensland provisions would be treated very seriously.

These are in s.36.4 and s.36.5 of the Solicitors Rule 2007 and state:

36. Advertising

A solicitor must not advertise the solicitor’s expertise or practice if that advertising:-

…

36.4 uses the words  “accredited specialist” or a derivative of those words, including the associated post-nominals, unless the solicitor is an accredited specialist, in which case the accredited specialist must use those words, or a derivative of those words, including the associated post-nominals, in compliance with the agreement entered into by the accredited specialist with the Queensland Law Society concerning the use of those words, or derivates of those words, and the associated post-nominals;

36.5 uses the accredited specialist logo (reproduced below) except as permitted by the agreement entered into by the accredited specialist with the Queensland Law Society concerning use of the logo.

The Accredited Specialist logo:

For more information please contact Kristy Roodveldt at QLS on 3842 5929 or k.roodveldt@qls.com.au 

Also see the FAQ Can I claim to be a specialist or expert?

You need to address two issues in relation to the Solicitors Rule 2007 to be able to make this claim.

The first is whether you can justify this claim, as a matter of fact. If not, then your claim may be false, misleading, deceptive, or likely to mislead or deceive, contrary to s.36.1 or s.36.2 of the Solicitors Rule - see FAQ What are the rules about solicitors' advertising generally. Clearly if you are a QLS accredited specialist you are justified in making such claims, but remember that this accreditation is yours personally and not that of your law practice, and is also specific to a particular area of law. Also a claim to be a specialist or to specialise is likely to be seen to be a claim to expertise rather than just to a preferred or usual area of practice, so do not make such a claim in this sense.

The second issue with the Solicitors Rule, if you are not a QLS accredited specialist in that area of law, is whether this would be a breach of s.36.4 of the Solicitors Rule - see FAQ What are the rules about advertising specialist accreditation? The issue is whether any of the words you use are a derivative of the words “accredited specialist”. “Derivative” is not defined in the Solicitors Rule or the Legal Profession Act 2007. The Legal Service Commission’s view is that it is likely that the word “specialist” is a derivative in terms of this rule.

For personal injury advertising, in print or on the internet, there is no restriction in PIPA on claims to speciality or expertise, as this falls within “information as to any area of practice or speciality” in s.66(1)(a). However, the LSC’s interpretation of PIPA limits you to a bare statement of the speciality or expertise, without any additional “self-promotional statements”.

You should also be aware that if you hold yourself out to be a specialist or expert in a particular area of work, then in the event of a negligence claim a higher standard of care will apply.

Yes, except that for personal injuries advertising you must not send or deliver any advertising material to a hospital or leave it on any vehicle in the vicinity of a hospital.

“Hospital” is defined widely in s 63 of PIPA to include a wide range of premises providing health services.
 

There is no longer any restriction on whose details can appear on a law practice letterhead, or who in a practice may have a business card, but where a person is named, the person’s status within the practice, and legal qualification or lack of it, must be made clear. 

Section 34 of the Solicitors Rule requires that the qualifications and status of the persons engaged in a law practice are represented accurately to any person who has dealings with the practice. Also, s.25 of the Legal Profession Act 2007 prohibits a person from representing or advertising, that they are entitled to engage in legal practice unless they have a practising certificate, and this includes doing anything that states or implies this status. So it is particularly important that the status of persons who are not legally qualified is made clear, to avoid any presumption or misunderstanding that they are legally qualified just by virtue of their association with the law practice.

The 2003 decision of the Solicitors Complaints Tribunal In the matter of Dean Phillip Bax serves as a warning in this respect. The Tribunal found that a managing law clerk had falsely held himself out to be a solicitor, and ordered that he not be employed by a law practice for 12 months.

The prohibition on false, misleading or deceptive advertising in s.36 of the Solicitors Rule will also apply to letterheads and business cards to the extent that these may be ‘advertising’.

Appropriate descriptions for non-legally-qualified persons might include:

• ‘clerk', 'legal clerk', 'conveyancing clerk', 'litigation clerk', etc
• ‘paralegal’ (although this term has been the subject of criticism)
• ‘law graduate’ if the person has a law degree
• for those undertaking the practical legal training course or a supervised traineeship, the above descriptions can be used
• ‘supervised trainee’ for those undertaking a supervised traineeship.

For employed solicitors, if you are not employed by a law practice, s.5.3 of the Solicitors Rule says you cannot permit your employer to put your name on its letterhead if, on the letterhead, there is some indication that you are a solicitor.

Incorporated legal practices should note the Commentary following s.36 of the Solicitors Rule about the requirements of the Corporations Act 2001 (Cwth).

Incorporated legal practices and multi-disciplinary partnerships should note the disclosure requirements in ss.123 and 152 respectively of the Legal Profession Act 2007.

If you have dealings with debt collection or mercantile agents, you should note the requirement of s.29.1 of the Solicitors Rule that you must not allow your business name or stationery to be used by the agent in a manner that is likely to mislead the public.