What is Advertising? 

Advertising is the use of public communications to promote a particular product or service in hopes of drawing attention from consumers. While advertising may be narrowly construed to the use of mediums like television, radio, billboards and magazines, this definition also allows for a broader interpretation. Advertising may be interpreted to encompass any form of public communication, including the use of websites and other popular social media platforms such as Facebook, Instagram, Twitter and TikTok. 

Why Advertise? 

Legal marketing and advertising serve a seemingly obvious purpose: to generate business and increase profits. Advertising helps increase client intake and revenue. It may also offer secondary benefits like educating the public (consumers), building awareness of legal services, defining a brand, recruiting new lawyers, and expanding the geographical reach of your professional reputation. 

In the legal profession, advertising may help lawyers and law firms to better define their practice, extend their geographical client basis, and seek to generate new business. Along with these benefits, however, lawyers have a professional responsibility to ensure that any communications to the public uphold the values of the profession. 

A Brief History of Regulation in Advertising in the Legal Profession 

It is well accepted that freedom of speech under section 2(b) of the Canadian Charter of Rights and Freedoms (Charter) includes commercial advertising. In the professional sphere, however, this right to engage in advertising must be balanced by the importance of maintaining the integrity of the profession and the statutory responsibility of serving and protecting the public. 

Before the Charter, advertising restrictions by the Law Society of British Columbia were challenged in Canada (Attorney General) v. Law Society (British Columbia).¹ The Supreme Court of Canada (SCC) held that, although freedom of speech was a valued and fundamental right, the Law Society was authorized to take disciplinary action against a lawyer for breach of the advertising rules. The SCC concluded that a lawyer’s right to freedom of speech was not infringed by professional rules and regulations which limited that right.²

After the Charter, the SCC continued to find that professional limitations on freedom of speech were acceptable. In Rocket v. Royal College of Dental Surgeons of Ontario,³ the SCC affirmed that commercial speech was protected by the Charter but held that it was essential for professional societies to regulate the way their members advertised. The SCC noted that although the motive for advertising is primarily economic, advertising also serves an important public interest by enhancing the public’s ability to make informed choices.⁴

The SCC noted that the public, as consumers of professional services, are unable to evaluate the validity of competing claims between professionals and are therefore highly vulnerable to unregulated advertising.⁵ Given these competing interests, the SCC concluded a widespread ban on advertising contravenes the right to free speech but that there is a legitimate interest in regulating professional advertising to maintain the high standards of the profession and to protect the public from irresponsible and misleading advertising.⁶

Overview

Over the past 30 years legal advertising has skyrocketed. Although it was once considered unprofessional to advertise legal services, effective marketing is now considered necessary for a lawyer or firm to grow and thrive.⁷

Effective marketing can give lawyers and law firms greater access to potential clients, assist in overcoming geographical boundaries, raise awareness and track consumer interest. Marketing and advertising are also accompanied by negative effects, however, including a rapidly changing and increasingly saturated market, and a host of ethical issues.

Given the ethical repercussions of advertising, law societies have created specific rules to protect the public and prevent lawyers and firms from using irresponsible and misleading information. Whatever form legal advertising may take, these rules ensure that the high standards of the profession are upheld.

This toolkit will familiarize lawyers with the rules and regulations of advertising in the legal profession and how they apply to different forms of advertisements. Knowing these rules and the accompanying ethical expectations can help protect lawyers from disciplinary action and help maximize their marketing messages.