By Shadrack Muyesu
It is trite law that subsidiary legislation is inferior to the parent Act, and that where there is a conflict, subsidiary legislation should be construed to give effect to the Act or be voided to the extent of the inconsistency.
By dint of this, advocates are allowed to tout and advertise. In fact, rule 2 The Advocates (Practice) Rules, 1966 has been deemed unconstitutional. Most emphatically, in ‘Okenyo Omwansa George & another v Attorney General & 2 others’, the High Court found that a complete ban on advertising by advocates such as that contained in Rule 2 undermined the right of access to justice and was therefore a violation of the right.
The Court also agreed that the prohibition of advertising under Rule 2 was not only discriminatory but also an affront to consumer rights as it constrained the consumers of legal services’ access to such information as is necessary for them to make informed choices. In its considered opinion, advertising enables the consumers to have information regarding where, when, from whom and how to get legal service of an advocate.
To the extent that this judgment allows advocates some form of advertising, it harmonises Rule 2 with Article 43 of the Constitution and is therefore good law as has been widely hailed. But this should not be construed to mean that it (the judgment) allows advocates to tout in the vain attempt of further reconciling Rule 2 and Section 38 of the Advocates Act Cap 18. It does not.
To say otherwise is to indulge in the grave error of identifying touting and advertising as synonyms. To tout is to advertise; however, not all forms of advertising entail touting. And as may be seen from the judgment, advertising for advocates, though accepted, is greatly restricted.
Touting is one such restriction.
The importance of adopting a definition in context cannot be overemphasised. Inter alia The Macquarie Dictionary defines “tout” as to solicit business, employment, votes, etc., importunately. Since the law of the State banned advertising, this is the definition the Supreme Court of Queensland in ‘Hayes v. Surfers Paradise Rock and Roll Café’ (2010) QCA 48 chose.
According to the dictionary, touting may also mean to solicit support for importunately, to describe or proclaim, especially favourably or, as a noun, to mean one who solicits custom, employment, support, etc., importunately.
According to the ‘Black’s Law Dictionary’, touting is also “The solicitation of business by highly recommending a security or product, especially when the recommendation’s basis is largely puffery”.
In a libel action, Day J., said, “the true meaning of ‘tout’ is simply a person who obtains business by solicitation; and not, necessarily, a swindler, though no doubt he might combine the occupations.” As was pointed out in Nova Scotia Barristers’ Society’s, Words & Phrases: Judicially Defined in Canadian Courts and Tribunals, citing a decision by the Ontario securities commission, touting consists of pestering possible customers to buy, in a way that masks relevant information. Unlike a hard sale, a tout subtly or overtly, exaggerates information and conceals facts. And as was held in Hayes (supra) it requires something additional, some persistence, repetition, pursuit, pestering, obstruction, or other importunate behaviour.
The goal of the professional ethics in law is to ensure that advocates are employed on the basis of competence and expertise and not cost or (false) advertisement. To allow advocates to tout, as Okenyo Omwansa George has been misinterpreted to do, is to fly against this important goal thereby diminishing the profession.
Solving the problem: the Reading in provision
The mischief in Section 38 of the Advocates Act and therefore the inconsistency between it and Rule 2 can be cured by asking a court to read the words ‘an advocate’ into the guideline, specifically, by inserting it before the words “who procures or attempts to procure” and after the words “any unqualified person who”.
Section 38 should therefore read,
Any unqualified person or an advocate who procures or attempts to procure the employment of an advocate in consideration of a benefit to himself/herself, in any suit or matter or solicit from an advocate any payment or advantage in consideration of such employment shall be deemed to be a tout.
In the case of reading in, the court in ‘R V Schachter’ (1991) defined inconsistency as what the statute wrongly excludes rather than what it wrongly includes. As was decided in ‘R V Wong’ (1990), the purpose of reading in is to be faithful as possible within the requirements of the Constitution and to the scheme enacted by the Legislature. It’s important we ask, “What is the purpose of the Statue? What did the drafters intend? And is the intention in accordance with the Constitution?”
Reading in is therefore a legitimate remedy akin to severance and should be used in cases, where it is an appropriate technique to fulfill the purpose of any statute and at the same time minimize the interference of the court with parts of the legislation that do not themselves interfere with the Constitution.
Surely it wouldn’t have been the intention of the drafters of the Advocates Act to allow touting. True, intention can be found from a holistic reading of the Act and a consideration of the entire regime of professional ethics as well as international best practice.
While it is not the intention of this article to descend into a complex discourse of statutory interpretation, in a nutshell, the laws, rules and regulations governing legal practice seem unanimous on the need to maintain high professional standards within the profession. To allow touting is to diminish the practice.
Prior to the decision in Okenyo Omwansa George the Advocates Act envisaged a complete ban on advertising. The Advocates (Marketing and Advertising) Rules, 2014 which came later allowed some form of advertising. All advertising henceforth was to be done fairly and reasonably which was interpreted to mean, not in breach of guidelines set out in the rules.
Inter alia, the guidelines provided for advertisements that are objective, true and dignified; respectful of the professional ethics of the profession; and not attempting to denigrate another advocate or the profession.
When advertising, an advocate should not provide the name or the identity of a client of the advocate or the advocate’s firm; his picture or that of his partners, or another advocate employed in the advocate’s firm; his academic qualifications or the professional positions he held prior to admission to the Roll of Advocates; or a promise by the advocate or his firm to achieve a particular outcome for clients or prospective clients or promise to waive fees in case of failure to deliver on a promise.
According to the rules, an advocate commits an act of professional misconduct if he or his firm fails to comply with the Rules; he uses an appearance at a conference, seminar or similar public activity for advertisement; he or the firm uses an intermediary to solicit professional business; or if he or the firm he represents makes false or misleading statements regarding information that should be provided under these Rules to solicit professional business.
Last but not least, Rule 6 (1) prohibits advocates from joining or acting in association with any organisation or person (not being a practising advocate) whose business or any part of it is to make, support or prosecute (whether by action or otherwise and whether by an advocate or agent or otherwise) claims as a result of death or personal injury, including claims under the Workmen’s Compensation Act, in such circumstances that such person or organisation solicits or receives any payment, gift or benefit in respect of such claims.
Advocates are also prohibited from acting for clients introduced or referred to him by any person or organisation whose connection with such client arises from solicitation in respect of the cause of any such claim. (