The Law Society of Alberta implemented a new Code of Conduct in 2011. Its wording is based on the Federation of Law Societies’ Model Code of Professional Conduct. Alberta adopted the Model Code’s advertising rules and retained our own long-standing advertising rules about firm names and the manner in which firm members must be described. In Alberta, lawyers are also prohibited from advertising that they will loan money to clients.

The introduction of Alberta’s new Code of Conduct did not significantly change the regulation of lawyer advertising. The advertising rules are found in Chapter 4 of the Code, and their primary goal is to protect the public from misleading, confusing or deceptive advertising. As a “catch all”, the rules also state that advertising must not bring the profession or administration of justice into disrepute, and marketing must be in the best interests of the public and consistent with high standards of professionalism. ^[1] Lawyer advertising rules do not, however, purport to regulate or define “good taste”.

The rules apply to all forms of communication in which lawyers offer or market their legal services. Print ads are no longer the primary focus, as lawyers advertise on YouTube, social media, television, radio, and sporting venues, to name a few.

Few disciplinary hearings have arisen from violations of advertising rules, in Alberta or in other provinces.  In Alberta, lawyers usually modify their advertising on a voluntary basis when the Law Society raises concerns. The Law Society hopes to educate the profession about acceptable advertising practices, in an effort to ensure lawyers understand the rules and avoid inadvertent breaches of the rules.

[1] Code of Conduct, Rules 4.1-2 and 4.2-1.

The purpose of the advertising rules in the Code is to protect the public from dishonest and misleading legal advertising. The rules also ensure that legal advertising serves the public and demonstrates the high standards expected of the profession.

The Alberta Code of Conduct requires that advertising must:

• be demonstrably true, accurate and verifiable;
• be in the best interests of the public and consistent with a high standard of professionalism;
• not be false, misleading, confusing or deceptive, or likely to mislead, confuse or deceive;
• not suggest qualitative superiority to other lawyers;
• not raise expectations unjustifiably;
• not take advantage of a vulnerable person or someone who has suffered a traumatic experience;
• not amount to coercion, duress, or harassment;
• not bring the profession or the administration of justice into disrepute;
• not suggest or imply a lawyer is aggressive;
• not disparage or demean other persons, groups, organizations or institutions;
• not use testimonials or endorsements that contain emotional appeals;
• not refer to the lawyer’s degree of success in past cases, unless such statements are accompanied by the qualification that outcomes will vary according to the facts in individual cases.

Some examples of advertising practices that breach these rules are discussed in the following paragraphs:

• Statements that a firm has obtained the largest settlements in the history of the province or country are impossible to verify, as settlements are not reported. Promises of large settlements raise expectations of clients and must be qualified to ensure clients understand their cases must be decided or resolved on their own merits;
• Statements that the lawyer or firm is the “leading” or “top” lawyer or firm, or that the lawyer is “the best” or the most experienced in the city or in a certain practice area, suggest qualitative superiority. The use of third-party ratings may, in some circumstances, be misleading and is addressed later in this article;
• Including “& Company” or “and Associates” in the firm name of a sole practitioner implies that a firm has a greater number of lawyers or resources than it does. Firm size is often relevant to a client’s choice of counsel;
• Derogatory references to the billing practices, ethics or skills of other lawyers and law firms are clearly offside and require no explanation;
• Reference to numbers or types of past successes can be misleading. Is the success due to the lawyer’s skill or the strength of the case, the fact pattern, etc.? And what does it mean to have been “successful”?
• Suggestions that a lawyer or firm is aggressive, through use of imagery of aggression, like dogs or dragons, or references to being “tough” contravenes the Code. In some cases, lawyers have used news articles in their advertising which describe their aggressive cross-examination of witnesses. These advertising practices are attempts to do indirectly what lawyers are not allowed to do directly, by touting an aggressive or tough approach.
• Manipulating ratings or creating false online reviews or testimonials is another example of misleading marketing.

Lawyers may advertise fees, but the advertising must be precise and must state whether other amounts, such as disbursements, taxes, or “other charges” will be billed in addition to the fee. Lawyers must strictly adhere to advertised fees.

Lawyers are not allowed to advertise that they are specialists or experts in Alberta and should avoid use of derivative words such as “specialize” or “expertise” in their marketing. Other jurisdictions certify specialists, and lawyers with the appropriate certification may refer to their status as a specialist in another jurisdiction when advertising in Alberta.

Alberta lawyers can identify their preferred practice areas in their advertising. This serves the fundamental purpose of assisting clients to identify a lawyer who may provide the service they need.

Many law firm websites include the names of clients and matters on which the lawyers have acted. Details of client identities or retainers are confidential, and lawyers must seek client consent before posting such information in any advertising. Even if the client’s identity is not explicitly divulged, other information in the narrative may reveal the client’s identity or, worse yet, the lawyer’s advice to the client.

It is important to remember that confidential information goes beyond what is privileged. Confidential information includes all information concerning a client’s business, interests and affairs acquired in the course of the lawyer-client relationship and may include information known to third parties. While some information may be a matter of public record, a lawyer is not allowed to make any disclosure that may be contrary to the client’s interests.

Some lawyers and firms include information and rankings from third-party publications on their websites. This is a common practice and may be acceptable when the publication is not paid to provide a lawyer or firm with a high ranking, and when the ranking is based on a valid and meritorious assessment process. The source of the ranking and the manner in which it is obtained and assessed is highly relevant.

The Law Society of Ontario has developed specific rules about the use of third-party rankings.  While the rules in other provinces, including Alberta, are not as detailed, the principles are applicable. Some third-party rankings are misleading and should not be used to circumvent the rules.

In Ontario, lawyers are not allowed to refer to awards, rankings or third-party endorsements that are not bona fide or are likely to be misleading, confusing or deceptive. Use of rankings that include references to lawyers as “the best” are caught by this prohibition. The rule targets rankings that do not genuinely reflect the quality of the services provided by the lawyer, are not the result of a reasonable evaluation, or are provided in exchange for the payment of a fee or other consideration.  Rankings should be the result of a legitimate evaluation of the lawyer’s performance or the quality of the lawyer’s service. Potential clients have little understanding or appreciation of how such rankings are generated and, as a result, they can be very misleading.

On the other hand, references to awards or honours that genuinely reflect a lawyer’s professional or civic service do not contravene the rules. Lawyers must ensure that references to awards and honours in legal advertising are based on a genuine and responsible assessment of that lawyer.

The Law Society of Alberta is occasionally asked to review lawyer referral and matching services. These services are often operated by non-lawyers who are not regulated, but lawyers using the services must ensure the service complies with the Code of Conduct before they participate or subscribe. Ultimately, lawyers are responsible for how they are described by referral or matching services they use, and for how they pay for the service. For example, the referral service may have only one real estate lawyer on its roster, but it conveys to members of the public that they have found the “best” lawyer for the file. This is clearly misleading. The referring agency or service should not purport to rank or rate its subscribing lawyers, nor state they are the best in their practice area. If it does, lawyers should not subscribe to it.

The Code prohibits lawyers from paying referral fees, or splitting fees, with any non-lawyer who refers clients to the lawyer (Rule 3.6-7). This means that lawyers must not pay referral service providers on a per file basis, or on a percentage of fees generated by files from the referral service. Lawyers are also prohibited from giving financial or other rewards to non-lawyers for the referral of clients.

The reason is that non-lawyers are often not in the best position to determine who might be the best lawyer for a client’s matter. They may be motivated by the potential for financial gain and will refer clients to lawyers who are simply willing to pay them the largest fee.

In contrast, lawyers can pay referral fees to other lawyers.  Generally, lawyers can identify colleagues who have the skills to serve the client’s needs, and the payment of a referral fee is not seen as objectionable. Keep in mind that the Code does not allow the payment of referral fees if the referral is compelled by a conflict of interest which prevents the referring lawyer from acting (Rule 3.6-6).  Lawyers are also required to ensure that referral fees are reasonable and that clients are informed of the fees and consent.

The rules do not prevent lawyers from engaging in promotional activities or making reasonable expenditures on promotional items or activities that may result in the referral of clients. Lawyers can take clients out for meals, provide tickets to sporting or other events, or sponsor client functions. Lawyers can pay non-lawyers reasonable advertising costs, including flat fees for lawyer referral services, and can compensate employees for marketing and public relations services. Compensation cannot be directly related to a specific client matter, whether based on a fee per file or a percentage of the overall billings generated on the file.

As noted earlier, lawyers are not allowed to advertise that they make loans to clients, whether those loans are characterized as loans or cash advances against claims. This rule applies to lawyers in their personal capacity, as well as to entities related to or controlled by lawyers.

The advertising rules also regulate firm names. Firm names may include: trade names, initials, logos, symbols, the names of individuals or their professional corporations, provided they are not misleading or confusing.

An example of a misleading name is the use by a sole practitioner of the phrase “and Company” or “and Associates” after the lawyer’s surname. This name suggests a firm of more substantial size and resources.

Trade names cannot imply connections to other institutions; the example in the Code commentary is a firm name that refers to a university. Geographical trade names are improper if they lead the public to conclude that a law office is a public agency or is the only law office available in that geographic area. A trade name can refer to a lawyer’s practice area, as long as it is not misleading.

Firm names may include names of lawyers who are no longer alive or are no longer practising with the firm. Names of former firm members who are now judges may continue to be in the firm name but firm members cannot appear in front of that judge as long as the judge’s name is part of the firm name. Firm names may include names of individuals currently or formerly entitled to practise law in Canada or in other jurisdictions. On the other hand, firm names cannot include the name of an individual or entity not entitled to practise law.

It is a common misconception that lawyers must refer to their professional corporations in their firm names. This is not required as professional corporations are not limited liability corporations.  There is no reason to alert the public that they are dealing with a professional corporation, as lawyers remain personally liable for the debts and obligations arising out of their practices.

Effective advertising should be ethical and memorable, and should contain information that is useful to any client seeking a lawyer. Canadian legal advertising does not seem to be as bold as some advertising in the United States. Many examples of “in-your-face” legal advertising are available in the United States, and much of it might be of questionable taste or effectiveness.

Many Canadian lawyers are becoming more creative, using platforms such as YouTube and other social media channels to advertise their services or to provide relevant legal information. Whether online or in print, lawyers’ advertising should be consistent with their firm’s strategic plan, the type of service they wish to provide and the clients they aim to attract.

The tone of a lawyer’s advertising is often reflected in the type of clients that respond to it. Practice Advisors at another law society shared a story with us that illustrates the point. A family lawyer was particularly stressed and seemed to have a difficult practice due, in part, to demanding and hostile clients. His ads and logo featured aggressive images and implied that he would take an aggressive approach for his clients. When he changed his advertising to include softer images and messaging, his client base became less aggressive and his practice became more manageable and enjoyable.

Few disciplinary matters have been reported in Alberta for breaches of advertising rules. In one scenario, a lawyer sent a promotional letter to realtors, offering a free “mini holiday” at his condo at a ski resort to anyone who referred three real estate transactions to his office. Although the offer cost him nothing, it did have value. The offer breached the rule against providing a non-lawyer a “financial or other reward” in exchange for a referral (contrary to the predecessor of what is now Rule 3.6-7 of the Code of Conduct).^[1]

In 2013, an Alberta lawyer was reprimanded for advertising that he was an expert in immigration law. The sanction was mitigated by the fact that the lawyer had immediately changed his advertising upon discovering that he was in breach of the Code.^[2]

A Law Society of British Columbia hearing panel found that a lawyer had engaged in misleading advertising on numerous occasions. ^[3] In one instance, he had advertised a matter in which he had purportedly recovered $5000 for a client, when he had only recovered $2500. Further claims that the firm had achieved “great success” and “substantial settlements” for clients were not allowable, as these terms were not verifiable and created unreasonable expectations. Another marketing initiative implied clients who obtained second opinions from the lawyer’s firm had obtained better results and reported greater levels of satisfaction. The lawyer also misrepresented that, in a two-month period, eight clients had brought their “second hand lawsuits” to the lawyer’s firm. These representations created unreasonable expectations on the part of potential clients and further implied that the lawyer could get better results not achievable by other lawyers.

Not all advertising breaches will receive disciplinary sanctions.  In the same LSBC disciplinary decision, inaccurate comments in the advertising were not sanctioned because they were not material. For example, an inaccurate reference to the dollar value of a property which was the subject of a litigation matter was not sufficiently material for a sanction.

In 2000, the Law Society of Saskatchewan sanctioned a lawyer for sending solicitation materials to targeted recipients. ^[4] The recipients complained not only about the fact that they had received the solicitation materials, but that the contents were misleading.  The firm sent correspondence, along with retainer agreements, to a number of individuals who had not previously contacted the firm. The letter indicated that the firm had acted for a number of First Nations clients across Canada, who were suing the federal government and various churches for abuse and wrongdoing at residential schools. The letter went on to state: “We believe the compensation that we can achieve for you will be significant and you have nothing to lose. If we do not recover anything, then you will pay nothing. If we recover, then we will receive a percentage of what we recover on your behalf.” The letter explained four types of claims that the firm would advance, and suggested claimants could obtain compensation of amounts between $50,000 and $150,000. The letter concluded with an invitation to recipients to provide their personal details and recollections, and to return the signed authorization to the law firm.

The letter was accompanied not by an authorization but by a two-page enclosure, entitled “Assignment and Retainer Agreement”. The document had three parts, including a contingency fee agreement, an authorization to act on behalf of the client and an assignment of proceeds and direction to pay proceeds to the firm. The characterization of the document as an authorization was misleading, as a potential client might conclude it simply authorized the firm to act on the client’s behalf. The retainer agreement stated that the client would be obliged to pay the law firm for legal services if the client elected to change lawyers, or if the client settled the case without the law firm’s approval. If the client decided not to pursue the claim without getting approval from the firm, or the firm decided not to pursue the matter, the client would still be liable for disbursements.

In another version of the letter, other recipients were invited to provide contact information of others who may want to join the lawsuit. The law firm stated that future recipients of similar letters would never know the identity of those who had provided their names to the lawyers.

The hearing panel ultimately found that the communication was reasonably capable of misleading intended recipients. The test was not whether the recipients had been misled. The most troubling comments in the letter advised recipients that they had nothing to lose and would pay nothing if the firm recovered nothing, contrary to the terms of the lawyer’s proposed retainer agreement.

In addition, the letter assumed the recipient had a valid cause of action, in the absence of any information about the recipient’s circumstances. The letter also failed to disclose to recipients what was involved in the litigation process and failed to comment on the potential duration of the litigation and its uncertainties. There was no consideration of the personal toll litigation could take on a litigant, given the sensitive matters at issue.

The panel also found it was misleading for the lawyer to suggest that confidentiality could be maintained regarding the identity of the individuals who provided the names of other potential residential school claimants. The source of the information could become relevant in a future hearing and could be compellable, resulting in a third party’s discovery of the identity of the person who suggested that the lawyer contact him or her.

In two recent decisions from the Law Society of Ontario, lawyers were sanctioned for breaches of the advertising rules. The rise of social media and other means of promoting legal services has attracted increased regulatory scrutiny of lawyer advertising. The Law Society of Ontario is focused on protecting the public from misinformation and “misleading, confusing or deceptive advertising”. Lawyers are, however, permitted to provide relevant information to assist clients to make informed choices in selecting a lawyer.

One Ontario lawyer was reprimanded for his misleading and deceptive advertising. He advertised aggressive services and described past successes without stating that past results are not indicative of future results.  He also advertised he was a specialist when he was not certified, and incorrectly stated that over 200,000 members of the public had phoned his accident and injury helpline. Finally, the lawyer’s advertising suggested he practised in a multi-office, multi-jurisdictional firm with other experienced personal injury lawyers. In reality, he was an inexperienced sole practitioner.[5]

In a second Ontario decision[6], a lawyer was reprimanded for advertising that he was the best personal injury lawyer in Toronto, and for stating that he and the other lawyers in his firm had expertise difficult for other firms to match. He claimed his firm was often retained to correct the mistakes of other lawyers. He also stated that he was known for record-breaking cases and multi-million dollar results and tweeted a client testimonial that the client had obtained a settlement 75 times greater than what the insurance company had offered. Such statements should have been published with a disclaimer that past results are not indicative of future results.

Finally, the firm was sanctioned for using references to awards, rankings and third-party endorsements that were misleading and not bona fide.  As previously mentioned, the Law Society of Ontario’s advertising rules include a new rule addressing the use of ranking websites or programs. The rule prohibits use of marketing that includes rankings or references to lawyers being the “best”, where rankings have been obtained through a source or process that does not genuinely reflect the performance of the lawyer or are not the result of a reasonable evaluation process.  These kinds of rankings are often given as the result of the payment of a fee or other consideration. The Ontario rules do, however, permit references to awards or honours that are genuine reflections of professional or civic service.

[1] Law Society of Alberta v. Stemp, [1996] L.S.D.D. No. 297

[2] Law Society of Alberta. v. Hansen, 2013 ABLS 5 (CanLII)

[3] Law Society of British Columbia v. Pierce, [1995] L.S.D.D. No. 267

[4] Law Society of Saskatchewan v. Merchant, [2000] L.S.D.D. No. 24; affirmed 2002 SKCA 60 (CanLII)

[5] Law Society of Ontario v. D’Alimonte, 2018 ONLSTH (CanLII)

[6] Law Society of Ontario v. Mazin, 2019 ONLSTH 35 (CanLII)

Elaine Craig has authored a paper entitled “Examining the Websites of Canada’s Top Sex Crime Lawyers: The Ethical Parameters of Online Commercial Expression by the Criminal Defence Bar”.^[1]  In her view, a significant number of Canadian criminal defence lawyers advertise in a manner inconsistent with ethical rules. Her paper discusses the following examples:

• summaries of cases in which charges were withdrawn or clients were acquitted should include a disclaimer to indicate that past outcomes are not indicative of future results, and a client’s outcome will be dependent on the facts;
• celebrating the acquittal of clients who appear to be factually guilty may be contrary to the public interest and inconsistent with lawyers’ high standards of professionalism;
• it is misleading to suggest that an acquittal was obtained as the result of the lawyer’s skill rather than the factual circumstances of the case or the client’s actual innocence. For example, one website stated a client had been found innocent of a sexual assault charge. Although the defendant was properly exonerated because of DNA testing, that detail was omitted from the lawyer’s summary of the favourable outcome. A reader would be misled into believing the lawyer’s skill led to the acquittal rather than the client’s own innocence;
• descriptions of lawyers’ cross-examinations of complainants suggest that witnesses may have been bullied by defence counsel when giving their evidence, or that other aggressive tactics were used;
• public communications about a client’s matter should not be used for the purpose of publicizing the lawyer and should be free from any suggestion that a lawyer’s real purpose is self-promotion or self-aggrandizement;
• some advertising contains controversial assertions or incorrect statements of law about sexual violence defences. Some websites have suggested that many sexual assault charges arise from false allegations. In other cases, lawyers have advertised the use of defence strategies which may not be consistent with case law, regarding the introduction of evidence of a complainant’s prior sexual history.

Craig’s article provides food for thought and is worth reading in its entirety.  It raises issues not only about misleading advertising, but also about advertising that offends the public interest and lawyers’ standards of professionalism.

[1] Available for download at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2509596.