Legal Advertising vs. Touting in Jamaica

• Traditionally, legal professionals viewed advertising as undignified, favoring reputation and client recommendations for promotion.
• Attitudes toward advertising have shifted in many jurisdictions, including the USA, UK, and Jamaica, with varying degrees of relaxation in old rules.
• Touting is still generally frowned upon due to its extreme nature, potential for abuse, and conflict with professionalism.

Defining Advertising and Touting

• Canon II(n) of the Jamaican code defines advertising broadly as any communication intended to promote an attorney or law firm, including online presence.
• Updated Advertising Guidelines from the General Legal Council in 2018 consider social media representations by legal practitioners as advertising.
• Canon II(bb) defines "touting" as persistently or annoyingly seeking instructions from potential clients, directly or indirectly.
• Touting involves personal approaches to specific clients, contrasting with general service promotion.
• Jamaican definition of touting includes "pushiness, persistence or annoyance".

Rationale for Restrictions

• Historically, advertising bans distinguished professions from trade, preserving dignity and preventing commercialization.
• Restrictions safeguard poorer and more ignorant members of the public from exploitation during times of distress.
• Even with allowed advertising, regulations aim to maintain professionalism and protect the public.
• The need to inform the public must be balanced with the need to maintain high standards of integrity and performance.

Arguments For and Against Advertising

• Arguments against advertising:
  • Overemphasis on commercial success over ethical duties.
  • Lowered public respect for the profession.
  • Encouragement of exaggeration and dishonesty.
  • Difficulty in policing misleading advertisements.
• Counter-arguments:
  • Regulation can mitigate undesirable effects.
  • Public needs awareness of available services.
  • Advertising bans favor established firms over newer ones.
• Jamaica accepts advertising is not inherently undesirable.
• Touting remains prohibited and denounced.

The Bignall Case

• Bignall v. General Legal Council challenged advertising regulations as infringing constitutional rights (sections 13 and 16).
• The advertising in question involved extensive electronic media advertising.
• The court found that canons granting the GLC powers to make orders for breaches of advertising regulations were unconstitutional.
• Core regulations placing limits on advertising were deemed constitutional and not ultra vires.
• Canons II (h), 0), 0) and (k)(iii) are null and void.
• Breaches of regulations must proceed through the Disciplinary Committee.
• The GLC's Advertising Committee previously addressed concerns by writing to attorneys, a practice affected by the Bignall decision.

GLC v. Fair Trading Commission

• General Legal Council v. The Fair Trading Commission established that regulation of the legal profession isn't subject to the Fair Competition Act.
• The Fair Trading Commission challenged restrictions, arguing they unduly restrained competition.

Regulatory Framework

• Codes of ethics address touting and advertising with relevant restrictions and prohibitions.
• Accepted methods include letterheads, business cards, websites, lectures, and office signs.
• Common prohibitions include using professional standing to advertise commercial entities.
• Promotional activities are required to be dignified and restrained.

"Vulgar" or "Sensational"

• Jamaican code prohibits "vulgar or sensational" advertisements (Canon II(d)(iii)).
• Determining vulgarity or sensationalism can be subjective.

Recordkeeping

• Canon II(f) in Jamaica requires keeping records of advertisements for GLC oversight.

The Future

• Increased competition may push for relaxed advertising rules.
• Societal changes will influence the interpretation of existing parameters.

Bignall v The General Legal Council and the Attorney General of Jamaica (2022)

• An attorney challenged the constitutionality of advertising regulations made by the General Legal Council.
• Claim followed inquiries into complaints that Bignall Law had engaged in advertising alleged to be in breach of advertising regulations and a decision by the Council on September 26, 2018, which made orders in respect of advertising by the legal practice.
• Advertising regulations were challenged as unconstitutional and ultra vires the Legal Profession Act.
• The court declared Canons II (h), II (i), II (j), and II (k) (iii) unconstitutional, deeming them unjustified limitations on freedom of expression.
• The directive of the Advertising Committee demanding the Claimant discontinue advertising was in breach of the Claimant’s right to a fair hearing and ultra vires the Legal Profession Act
• Charges alleging breaches of canons II (h) and II (l) are stayed.

General Legal Council v. The Fair Trading Commission (1995)

• The General Legal Council sought declarations and orders to establish that the regulation of the profession was not subject to the Fair Competition Act.
• The Fair Trading Commission believed Canons of Professional Ethics may be inconsistent with the Fair Competition Act.
• The court concluded that the Act does not apply to activities of professional associations and The Fair Competition Act, has not repealed, amended or modified the provisions of the Legal Profession Act.
• The General Legal Council in performing its statutory duties is not subject to the jurisdiction of the Fair Trading Commission.
• Legal Profession (Canons of Professional Ethics) Rules are not "agreements" within the meaning of the Fair Competition Act.

Rocket v. Royal College of Dental Surgeons of Ontario

• Maintenance of professionalism and protection of the public are at the heart of such regulations.

Re A Solicitor (1945)

• Highlights the prohibition against touting for clients, underlining that the function of a solicitor to advise, negotiate, or fight for a client, but only if retained.
• The duty to make reasonable inquiry under Rule 4(c) is an absolute obligation and the Law Society disciplinary proceedings are distinct from criminal law.