The following issues are common mistakes lawyers make when advertising their services:

Rankings

Third party rankings such as ‘Best Lawyer’ and ‘Canada’s Best Lawyers’ published every year by The Globe and Mail are an increasingly popular way for lawyers to stand out in their respective markets. 

Although only the Ontario Rules specifically comment on the unprofessionalism of this practice, participation in third party ranking systems may also contravene the standards in the Model Code as well as the rules in other jurisdictions. 

According to the Ontario Rules of Professional Conduct commentary, there is nothing untoward with fair and objective ranking systems based on valid and meritorious processes. The commentary adds that if the rankings are likely to be misleading, confusing or deceptive, they contravene the Rules.

In its guide to Ethical and Effective Advertising, the Law Society of Alberta likewise advises that references to awards or honours that genuinely reflect a lawyer’s professional or civic service do not contravene the rules. Third-party endorsements that are not bona fide, and are likely to be misleading, confusing or deceptive (such as references to lawyers as “the best”) are prohibited by a lawyer’s duty not to be misleading, as potential clients have little understanding or appreciation of how these rankings are generated. 

One way in which lawyers may ethically use these rankings is to include a description of the award’s meaning. For example, the advertisement can explain that “best lawyers” represents a vote from colleagues and not a comment on the lawyer’s quality of work.

Care should be taken when relying on these awards as advantageous advertising tools to avoid misleading the public. The requirement to not be misleading is prevalent in the Model Code and all law society codes of conduct. Ranking systems that are not bona fide may be a source of misinformation and amount to inappropriate and unethical advertising.

In a decision by the Law Society Tribunal in Ontario, a lawyer acknowledged marketing services that suggested qualitative superiority over others, and referencing third party endorsements in a misleading manner and specialization in the absence of proper certification. On the use of rankings, the Tribunal determined that some of the rankings did not (i) include an evaluation of his specific legal knowledge or experience; (ii) reflect his performance as a personal injury lawyer; or (iii) include any input or evaluation of him by clients or others familiar with his work. As a result, he was found guilty of professional misconduct.¹

Several popular Canadian lawyer rankings are conducted by legal media groups:

• Canadian Lawyer Magazine 
• Best Lawyers 
• Lexpert 

Regardless of whether a lawyer is named in these or other ranking systems, methods should be reviewed to determine whether the assessment is truly bona fide or whether it is a popularity contest where the lawyers with the most votes are lauded as the ‘best’ or ‘top’ lawyers in their field or a pay-for-your-reputation based ranking system where lawyers are ranked based on financial contributions.

Expertise/Specialization

It has been suggested that expertise is the most important factor for many clients when looking for legal advice.² As the number of qualified legal professionals has trended higher, lawyers and clients alike have turned to the perception of specialization as a tool to distinguish one lawyer from another.

Specialization is common in professions such as medicine and dentistry, but most Canadian legal institutions and administrative bodies do not offer specialization certificates. Some codes of conduct prohibit lawyers from characterizing themselves as specialists. In jurisdictions where lawyers are permitted to advertise a specialty, potential clients must be able to verify the claim, or the designation may be misleading.

Rule 4.3-1 of the Model Code states that a lawyer must not advertise that they are a specialist unless so certified. The commentary outlines that the purpose of advertising is to offer information to potential clients and to assist them in choosing a lawyer who has the appropriate skills and knowledge for their issue. The Rule explains that claiming expertise or specialization implies that a lawyer has met an objective standard which is presumably regulated and recognized by their governing body.

Alternatively, when a law society offers certification for a specialization, such as in Ontario, it may be appropriate to include this information in an advertisement. The commentary in the Model Code outlines that if a firm or lawyer practices in more than one jurisdiction, one of which offers certification, it does not offend this Rule if media circulated concurrently refers to that certification and identifies the certifying authority.

The parallel rules implemented by law societies across Canadian legal jurisdictions have varying requirements outlining how and when lawyers can hold themselves out as experts. The following table outlines each law society’s rule parallel to Model Code Rule 4.3-1:

Alberta Law Society

Rule

4.3 A lawyer must not advertise that the lawyer is a specialist in a specified field unless the lawyer has been so certified by the Society. 

Commentary 

Same as Model Code 

British Columbia Law Society 

Rule 

4.3-0.1 A lawyer may state in any marketing activity a preference for practice in any one or more fields of law if the lawyer regularly practises in each field of law in respect of which the lawyer wishes to state a preference.

4.3-1 Unless otherwise authorized by the Legal Profession Act, the Law Society Rules, or this Code or by the Benchers, a lawyer must:

1. not use the title “specialist” or any similar designation suggesting a recognized special status or accreditation in any other marketing activity, and 
2. take all reasonable steps to discourage use, in relation to the lawyer by another person, of the title “specialist” or any similar designation suggesting a recognized special status oraccreditation in any marketing activity. 

Commentary 

n/a

Manitoba Law Society

Rule

4.3-1 A lawyer or firm may advertise that the lawyer or firm is in general practice if such is the case. 

4.3-2 A lawyer may advertise that the lawyer has a preferred area of practice provided the advertisement does not contain a claim either directly or indirectly that the advertising lawyer is a specialist or expert. 

4.3-3 A lawyer may advertise that the lawyer’s practice is restricted to a particular are or areas of the law or may state that the lawyer practises in a certain area or areas of the law if such is the case.

Commentary 

The commentary for this rule maintains that a lawyer may advertise areas of practice if the representations are accurate, but does not include a specific allowance to permit specialist certifications from other jurisdictions.

New Brunswick Law Society 

Rule

4.3-1 The marketing of legal service by a practising lawyer or law firm shall not use the words “specialist”, “specializing”, “expert”, or synonyms thereof.

Commentary

Same as Model Code

Newfoundland Law Society

Rule

4.3-1 A lawyer must not advertise that the lawyer is a specialist in a specified field unless the lawyer has been so certified by the Society.

Commentary

Same as Model Code

Northwest Territories Law Society

Rule

4.3-1 A lawyer must not advertise that the lawyer is a specialist in a specified field unless the lawyer has been so certified by the Society.

Commentary

Same as Model Code

Nova Scotia Law Society

Rule

4.3-1 The marketing of legal services by a practising lawyer or law firm shall not use the words “specialist”, “specializing” “expert”, “expertise” or synonyms thereof. 

Commentary

Adopted Model Code commentary [1], [3] and [4].

Nunavut Law Society

Rule

4.3-1 A lawyer must not advertise that the lawyer is a specialist in a specified field unless the lawyer has been so certified by the Society.

Commentary

A note that the Law Society of Nunavut does not have a process for certification was added to the Model Code commentary

Ontario Law Society

Rule

4.3-1 A lawyer shall not advertise that the lawyer is a specialist in a specified field unless the lawyer has been so certified by the Law Society.

Commentary

[2] was adapted as follows: In accordance with s. 20(1) of the Law Society’s By-Law 15 on Certified Specialists, the lawyer who is not a Certified Specialist is not permitted to use any designation from which a person might reasonably conclude that the lawyer is a certified specialist.

Prince Edward Island Law Society

Rule

4.2-1 The marketing of legal services by a practising lawyer or law firm shall not use the words “specialist”, “specializing”, “expert”, “expertise”, or synonyms thereof.

Commentary

Adopted Model Code commentary [1], [3] and [4].

Quebec Law Society

Rule

Title II, Chapter I, Division I (lawyers) 10. A lawyer must not claim specific qualities or skills relating, in particular, to his competence or to the extent or efficiency of his professional services, unless he can substantiate those claims.

Moreover, he must not claim specific qualities or skills relating to the competence or to the extent or efficiency of his professional services,unless he can substantiate those claims.

Code of Ethics of notaries, Chapter 1:3. A notary must promote measures of education and information relevant to the areas in which he practises.

Commentary

n/a

Saskatchewan Law Society

Rule

4.3-1 A lawyer must not advertise that the lawyer is a specialist in a specified field unless the lawyer has been so certified by the Society.

Commentary

Same as Model Code with additional: [5] A lawyer shall not use the title “specialist”, “expert”, “leader”, or any similar designation suggesting a recognized special status or accreditation in an advertisement, public communication, or any other contact with a prospective client, unless authorized to do so in accordance with this rule.

Yukon Law Society

4.3-1 A lawyer must not advertise that the lawyer is a specialist in a specified field unless the lawyer has been so certified by the Society.

Commentary

Same as Model Code

While some jurisdictions adopt the Model Code language verbatim, others make small changes including more specific rules about use of words like ‘specialized’ or ‘expert’ or have included alternative commentary. Some jurisdictions chose not to reflect the Model Code’s language at all and maintain instead their unique rules on references to expertise or specialization.

In a decision by the Law Society of Alberta’s disciplinary tribunal, a lawyer was formally reprimanded for advertising that they were an expert in immigration law without formal certification to substantiate their claim.³

In another decision, the Law Society of Ontario’s disciplinary tribunal disciplined a member for misleading advertising where ads referenced past success without a disclaimer and specialization in the absence of certification. The Tribunal noted:⁴

The website was misleading, confusing, deceptive and inaccurate because it marketed to clients on the basis that Mr. D’Alimonte’s firm was a substantial experienced firm when the truth was that the firm was comprised of a relatively inexperienced sole practitioner. This is a particularly egregious breach because clients seek lawyers, and lawyers market to clients, based on skill and expertise.

Before referring to specialization in a given area, it is important to determine whether designation is permitted in the jurisdiction in question. If so, the qualifications to hold oneself out as a specialist must be met. If not, the Model Code recommends indicating a preference for or experience in a desired area of practice instead of unfounded statements of expertise.

Testimonials

It may seem beneficial to include testimonials from former clients in advertisements. Product or service reviews are heavily relied on by the public in their purchasing decisions.

If including testimonials in advertisements, lawyers must first ensure that testimonials are not forbidden by their code of conduct. If testimonials are permitted, lawyers must take care that the testimonials are true, not misleading, and freely provided or that any exchange of value through payment or gifts is disclosed. In addition, before a lawyer makes a former client’s testimonial public, they must receive permission from the client. Failure to do so may inadvertently reveal confidential information.

Comparatives

The desire to stand out to potential clients in a competitive market pushes lawyers to seek new means to distinguish their services from competing providers.⁵ By nature, legal services are intangible, complex and very personal. In essence, law firms are not selling the law, they are selling the expertise and abilities of the firm’s lawyers.⁶ Marketing and advertising are essentially tools of self-promotion. One effective way lawyers have attempted to stand out from the crowd is to use comparisons that create the perception that one or some lawyers are better or more successful than others.

Using comparatives or superlatives in advertising such as “best” or “better, greatest, fastest”, or most skilled, is both subjective and unverifiable. Comparisons suggest qualitative superiority over other lawyers or legal service providers, contravening Rule 4.2- 1 of the Model Code. As most law societies include a similar rule in their code of conduct, using comparatives and superlatives will likely contravene the rules of a lawyer’s code of conduct.

Ultimately, lawyers are responsible for the language used to advertise their professional capabilities. As members of the bar, regardless of the jurisdiction, each lawyer has a duty to know the rules that apply to them and to abide by them.

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Learn More:

William W. Yavinsky, “A Comparative Look at Comparative Attorney Advertising: Why Efforts to Prohibit Evaluative Rankings Spark Debate from Buffalo to Buenos Aires” (2007) 20:3 Geo J Legal Ethics 969.