Slaw.ca Legal Ethics Column, December 14, 2018.
Found online at: http://www.slaw.ca/2018/12/14/why-we-cant-ban-legal-advertising/
Whenever I see billboard or TV advertising for law firms, I worry. I don’t worry about the “dignity” of the legal profession; I worry about the people at whom these ads are targeted. Choosing the best possible firm can make a major difference in the long-term happiness and financial security of a person with a serious personal plight legal need (e.g. a personal injury, a divorce, or a criminal charge). Mass media ads almost never provide any useful information that would help someone in this position make an intelligent choice. The airbrushed photos, empty boasts, and gleaming boardrooms in these ads are meant to promote emotional resonance and brand recognition, not reasoned decision-making.
Advertising for normal goods and services — which most consumers can understand and evaluate — may foster healthy competition, which in turn improves quality and reduces price. By contrast, mass market advertising for opaque professional services such as law is more likely to promote unhealthy and consumer-hostile competition. It encourages a struggle between firms to achieve name recognition by deploying expensive campaigns, which are ultimately paid for by clients through higher fees. Clients are better off when they choose law firms by relying on knowledgeable and unbiased referrals, or comparing objective information about the available options. In such a market, financial incentives are aligned with professionalism: firms’ profits will depend on the real value that they offer to clients, not on their marketing budgets.
With these thoughts in mind, I started writing this column to argue that most or all mass-market law firm advertising should simply be banned — as it was before roughly 1980. However in researching this piece, I’ve come across some compelling reasons to think otherwise.
Three Reasons Why we Can’t Ban It
#1. Don’t throw out the baby with the bathwater. Some marketing does help consumers make informed decisions between firms and uphold their legal rights. Law firm websites with high-quality content, radio call-in shows hosted by lawyers, and open-access legal texts bearing a firm’s name are all examples. It may be impossible to create rules that exclude all of the “bad” ads and none of the “good” ones, in a shifting media landscape.
#2. Even the bathwater does some good. Even the most superficial and manipulative mass media ads may have some benefits for consumers. People do not necessarily know that their problems have legal dimensions, or that law firms can help them. Legal consciousness is patchy. Even if an ad does not provide any reliable information about the merits of the firm that paid for it, it may helpfully communicate to people that the law can help with life problems such as family breakdown or personal injury.
Mass media ads might also help innovation spread, in an industry that needs all the innovation it can get. If a firm were to develop a new and access-enhancing service model, it would be in clients’ interests to let them get the message out.
#3. Letting the People Decide. Advertising is a form of expression, and state-backed authorities such as law societies should not lightly restrict expression of any kind. The Charter guarantees freedom of “expression, including freedom of the press and other media of communication” (CCRF 2b). It is no mere accident that freedom of expression applies to profit-seeking “commercial speech” as well as to forms of expression with non-commercial motives. Constitutional protection for expression manifests deference to the good sense of audiences. Sometimes the best response to “bad” expression — whether it is fallacious political propaganda or manipulative law firm advertising — is to trust the audience to give it the weight it deserves.
Regulating without Banning
Today, law firm advertising is permitted but regulated more tightly than advertising for other goods and services. False and misleading ads have never been allowed. Regulators play whack-a-mole; as new forms of advertising (e.g. internet keyword advertising) arise, new instances of false and misleading are identified. Last year, the Law Society of Ontario’s marketing Rules were amended to call out phony award claims, misleading “all-in” pricing quotes, and advertising services that one is not licensed to provide.
Giving People Other Ways to Decide
Malcolm Mercer has observed that mass-market legal advertising works, in part, because clients lack good information about the respective merits of law firms. (See Saturday Night Live’s hilarious take on a misleading legal brand here:
Not knowing about their options, and not knowing how to learn more about their options, some injured or divorcing or criminally charged people with legal needs are willing to simply phone the number that is stuck in her head from the bus and TV ads. Regulators can make it easier for clients to make intelligent choices in the legal services marketplace, by providing more reliable information. This is a way to reduce consumers’ dependence on ads, without infringing on freedom of expression, and without curtailing the potential of legal marketing to do good.