Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m A U G U S T 2 0 1 5 3 he Law Society of Upper Canada is looking at making changes to the rules gov- erning lawyer advertising. It has stirred up a hornet's nest. While lawyers have until mid-October to comment on the proposed chang- es, there were quickly calls from some members of the personal injury bar for a total ban on lawyer advertising. PI has seen an explosion of advertising in recent years, which has undoubtedly cost some law firms millions of dollars they might have pre- ferred to pocket or spend elsewhere. Competition in PI is fierce and there is certainly a level of mutual resentment among some of the firms whose names you've seen on the sides of buses. Those firms work now predominantly on a contingency-fee basis and getting clients and new files in the door is a constant battle that can at times get nasty. However, their animus is no reason to call for an all-out ban on advertising that would affect every lawyer in every area of practice. It's just not practical. And where do you draw the line with such a ban? Web sites, Facebook, Twitter, blogs? Advertising and marketing are no longer just about a poster in a bus shelter or a 30-second spot on the radio. That's not to say there aren't lawyers whose self -promotion is not without question. A study released last year by Schulich School of Law professor Elaine Craig raised concerns about the ethics of how many criminal defence lawyers advertise their services on the web. She questioned some of the tactics they used in order to push themselves higher in Google search rankings. These included promoting acquittals of those who appear to be fac- tually guilty and implications of the results of aggressive advocacy in sexual assault cases. Aggressiveness is not necessarily a bad thing, lawyer Gavin MacKenzie told Law Times. "But there is a difference between being aggressive and boasting on your web site about how you have succeeded in having sexual assault charges being withdrawn by intimidating a complainant by threatening to introduce evidence that is in all likelihood inadmissible." Craig and others strongly believe changes to professional rules around advertising are necessary. They are outdated and the myriad ways available for promoting oneself and the firm need to be revisited. And there are issues raised by the personal injury bar that do need to be addressed in order that professional ethics are respected. Some of the LSUC's proposed changes answer them. Proposed additions to existing com- mentary give examples of marketing practices that would contravene the rules. They include "failing to disclose that the legal work is routinely referred to other lawyers for a fee rather than being performed by the lawyer;" "misleading about the size of the lawyer's practice or the areas of law in which the lawyer provides services;" "referring to fee arrangements offered to clients without qualifications;" and "advertising awards and endorsements from third par- ties without disclaimers or qualifications." Lawyers need advertising to promote themselves and build their businesses in a competi- tive environment. That advertising can contribute to access to justice as well by "empowering people to understand what services are available, what they are, where they can go, who they can talk to, and what they can cost," as Osgoode law professor Trevor Farrow says. Law soci- eties need to be clear on what is and isn't acceptable behaviour and then enforce it. If you have thoughts, especially if you're practising in Ontario, make sure your voice gets heard. Director/Group Publisher: Karen Lorimer karen.lorimer@thomsonreuters.com Editor in Chief: Gail J. Cohen gail.cohen@thomsonreuters.com Staff Writer: Yamri Taddese Copy Editor: James Kang Art Director: Bill Hunter Production Co-ordinator: Sharlane Burgess sharlane.burgess@thomsonreuters.com Contributors: Jean Sorensen, donalee Moulton, Pascal Elie, Geoff Ellwand, Marg. Bruineman, Jennifer Brown, Jim Middlemiss, Anastasiya Jogal, Tali Folkins, Shannon Kari, Ava Chisling Canadian Lawyer is published 11 times a year by Thomson Reuters Canada Ltd. All rights reserved. Contents may not be reprinted without written permission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Canadian Lawyer disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Advertising Sales Representatives Legal Suppliers: Kimberlee Pascoe Tel: (416) 649-8875 E-mail: kimberlee.pascoe@thomsonreuters.com Law Firms: Joseph Galea Tel: (416) 649-9919 E-mail: joseph.galea@thomsonreuters.com Grace So Tel: (416) 609-5838 E-mail: grace.so@thomsonreuters.com Steffanie Munroe Tel: 416-298-5077 E-mail: steffanie.munroe@thomsonreuters.com Canadian Lawyer Magazine Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON. M1T 3V4 Tel: (416) 298-5141 Fax: (416) 649-7870 E-mail: cl.editor@thomsonreuters.com Web: www.canadianlawyermag.com Linkedin: linkd.in/179bx8t Twitter: @canlawmag Publications Mail Agreement #40766500 ISSN 0703-2129 © 2015 HST Registration #R121349799 RETURN UNDELIVERABLE CANADIAN ADDRESS TO: CIRCULATION DEPARTMENT One Corporate Plaza 2075 Kennedy RD., Toronto, ON. M1T 3V4 RETOURNER TOUTE CORRESPONDANCE NE POUVANT ÊTRE LIVRÉE AU CANADA AU SERVICE DES PUBLICATIONS One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON. M1T 3V4 Circulation/Address Changes/ Subscriptions Keith Fulford Tel: (416) 649-9585 Fax: (416) 649-7870 E-mail: keith.fulford@thomsonreuters.com Subscription rates: Canada1 year print and digital $99 plus HST, 1 year digital only $99. Outside Canada 1 year print & digital $99 USD, 1 year digital only $99. For all circulation inquiries and address changes send a copy of your mailing label or labels along with your request in writing to Canadian Lawyer, One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON. M1T 3V4 Indexed in the Canadian Periodical Index E D I T O R ' S D E S K @canlawmag gail.cohen@thomsonreuters.com Total ad ban a no go By Gail J. Cohen CLARIFICATION: A recent article on the Hollinger case ["Derailed," Canadian Lawyer, July 2015] incorrectly states that lawyer Paul Pape is a bencher of the Law Society of Upper Canada as well as that Mark Sandler — a bencher who has has been part of an ongoing reform of the Law Society of Upper Canada disciplines process — at no time took any position on whether there ought to be an investigation into lawyers Beth DeMerchant and Darren Sukonick. In addition, the majority of adjudicators at the LSUC's new disciplines tribunal are benchers. T

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