What is the point in restricting advertising for legal services?

By Newton Arori

The legal profession is one of the oldest and most conservative. In fact, there is a controversial but prevailing belief that law is not a trade, but a noble calling. It is, perhaps, because of the foregoing that, for a long time in Kenya, as in many other jurisdictions, lawyers were not allowed to advertise their services.

It was feared that advertising would commercialise and therefore cheapen the profession in the eyes of the public. The other reason for prohibition is the view that lawyers should be able to attract professional business based on their reputations as opposed to publicity.

One commentator observes thus: “The organised bar traditionally took the position that a lawyer was not permitted to actively publicise his services. In effect, it was presumed that every lawyer had an established clientele, or that a lawyer’s reputation for good work would inevitably lead others to seek out the lawyer’s services. Under this approach, direct publicity for lawyers was strictly controlled”.

The High Court of Kenya brought to an end the ban on lawyer advertising in the case of “Okenyo Omwansa George and Another vs. The Attorney General and 2 others (2014) e KLR”.  In that case, the petitioners challenged Rule 2 of the Advocates (practice) Rules which provided: “No advocate may directly or indirectly apply for or seek instructions for professional business, do or permit in carrying on his practice any act or thing which can be reasonably regarded as advertising or as calculated to attract business unfairly.”

The petitioners contended that the consequence of non-advertisement by advocates is that the public is left in the dark and this denies the public access to justice, a right guaranteed under Article 48 of the Constitution, which obligates the state to ensure access to justice to all persons. The petitioners asserted that a law that denies the public information and therefore access to justice is unconstitutional. The petitioners also argued that the rule against advertising violated Article 35 of the Constitution, which provides for the right to access of information.

The court agreed with the petitioners and held that the effect of the ban on advertising of legal services is that the consumer is left in the dark about the nature and extent of legal services that can be offered by an advocate, thereby undermining the right of access to justice.  Justice Majanja stated: “…I find and hold that a complete ban on advertising by advocates such as contained in Rule 2 of the Advocates Practice Rules undermines the right of access to justice and is therefore a violation of that right.”

The court relied on the American case of Bates v State Bar of Arizona in which it was noted that advertising, which is a traditional mechanism in a free market economy for a supplier to inform a potential purchaser of the availability and terms of exchange, might as well benefit the administration of justice.

In reaction to the decision in Okenyo Omwansa George, the Law Society of Kenya formulated the Advocates (Marketing and Advertising) Rules, 2014. The Rules permit advertising by advocates but in a manner that is extremely restrictive. Information that may be contained in an advert is limited to (a) the identity of the advocate or the advocate’s firm, (b) the date on which the advocate was admitted to the roll, (c) the address of the advocate or the advocate’s firm, (d) the hours of business of the advocate or the advocate’s firm, (e) the language of business used by the advocate or the advocate’s firm, (f) the academic or professional qualifications or the advocates, and (g) any contribution that the advocate or the advocate’s firm may have made to the preparation of a published legal article or a legislative bill, or any contribution made by the advocate or the advocate’s firm to legal education.

Massive restrictions

Names of clients or former clients, pictures of the advocates and professional positions held before admission to the roll are not permissible items in the advert. Also prohibited is the promise by the advocate to achieve a particular outcome for a client. An advocate may only advertise in print medium and no more than four times a year. Advertising on radio, television and billboards is not allowed. Failure to comply with the above rules amounts to professional misconduct. These rules are in stark contrast with the position in other jurisdictions such as the United States and the United Kingdom where lawyers use all forms of advertising including television adverts.

Is this restriction warranted? What arguments are made against full-fledged advertising?
First, it is asserted that advertising by professionals ought to be purely informative, and that making promises to deliver certain results for clients is likely to be misleading. Let’s take a typical example of a lawyer advert in the United States. The lawyer will appeal to prospective clients by stating the amounts of money that he (the lawyer) has won in case settlements. In other instances, satisfied clients will speak in praise of the lawyer’s abilities. This, critics of advertising argue, is deception and manipulative coercion; that the prospective client may hire the lawyer not out of his (the client’s) own free volition, but rather due to the manipulative effect of the advert.

An answer to this concern is to be found in Jerry Kirkpatrick’s paper, “A Philosophical Defence on Advertising”. The author argues that all advertising is informative, so also is it all persuasive, and that the distinction between informative advertising and persuasive advertising is a false dichotomy. He goes on to illustrate thus: “…a sign on a hot summer day that says, “Lemonade: 5₡” is informative, but if you are walking down the street where the sign happens to be and if you are dying of thirst, that simple informative message can very quickly become persuasive…”

Applying that example to the legal market, a person with a legal problem will be persuaded by a lawyer’s advert anyway, no matter how restricted the advert is. On the other hand, a person with no such problem may be temporarily attracted by a flashy advert, but it will not necessarily lead them to seek the lawyer’s services.

The second and more prevalent criticism is the assertion that law, as a noble profession should not, in the words of former United States Chief Justice, Warren Burger, “use the same mode of advertising as other commodities, from mustard, cosmetics and laxatives to used cars”. This means, in other words, that law should be seen and regarded purely as a profession, never as a business. This sort of reasoning is very well founded in theory; as a matter of fact, the earliest people who could be described as “lawyers” did not charge fees for their services. However, in modern setting, it would be pretentious and dishonest to deny the business character of law practice.

In conclusion, the restriction on lawyer advertising in Kenya seems unwarranted and serves no apparent purpose. As long as advertising is truthful and not calculated to deceive the public, it should be allowed in all forms and on all platforms. ^

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