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COLUMN Ethics in Practice |
Ten Questions on the
Publicity Rules
This article discusses the ethical considerations concerning publicity of a law practice under the Legal Profession (Publicity) Rules.
The Ethics Committee, a committee of the Council of the Law Society, is tasked with providing guidance to members on their ethical obligations. Members can submit a written inquiry to the Committee through the Representation and Law Reform Department at [email protected]. For detailed guidelines for inquiries to the Committee, please refer to the Council’s Practice Direction 2 of 2009 which can be found on the Legal Ethics section of the Law Society’s website at www.lawsociety.org.sg.
As, in this article, the Committee has omitted facts which are not considered crucial to the ethical obligations of the lawyer in question or to the guidance given, members are advised to write to the Committee for a specific opinion on their query in order to receive the Committee’s specific guidance. Neither the Committee nor the Law Society shall be liable for anything a member does or omits based on this article and without seeking a formal opinion on the facts of their case from the Committee.
The Legal Profession (Publicity) Rules (“Publicity Rules”) were brought into force in 1993. They have been liberalised over the years to allow solicitors to publicise their law practices in any manner as well as to participate in any third party or client publicity, so long as they comply with the general ethical principles set out in the Publicity Rules. These ethical principles include the prohibition against touting and the need to maintain the dignity of the legal profession. They underscore the values of “honour, integrity and honesty”1 that are integral to the legal profession and recognise that the legal profession should not “become a mere calling which its members practise as a means of livelihood and not in the spirit of a public service”.2
The Ethics Committee has provided guidance to members on various queries concerning the Publicity Rules. This article summarises and consolidates the key aspects of the Committee’s opinions for the guidance of members.
A1. It is the obligation and responsibility of every solicitor to ensure that any publicity relating to his or her law practice complies with the Publicity Rules: see rr 4 and 5(1). This is so even if the publicity is conducted by an employee of the law practice. If the solicitor becomes aware of any impropriety relating to the publicity of the law practice, it is “his responsibility to use his best endeavour to procure the rectification or withdrawal of the publicity, and to prevent its recurrence”: r 5(2). The solicitor’s responsibility under r 5 cannot be delegated to a third party, whether or not that person is a solicitor: r 5(4).
A2. Yes, the term “publicity” is defined broadly in r 2 of the Publicity Rules to mean “any form of
advertisement and includes any advertisement –
(a) printed in any medium for the communication of information;
(b) appearing in, communicated through or retrievable from, any mass medium, electronic or otherwise; or
(c) contained in any medium for communication produced or for use by a firm.”
Publicity through the Internet, which is accessible in the normal course of events to the general public in Singapore as well as in other jurisdictions, is still subject to Part III of the Publicity Rules (Rules 6 to 10): see Rule 12(3) of the Publicity Rules.
For all forms of publicity in Singapore, a solicitor should objectively assess whether the publicity:
• contains any unjustified claim to expertise or specialisation (r 6(1)(a) read with r 6(2));
• contains any direct or indirect mention of past cases in which, or clients for which, he or his law practice has acted where the provision of such information will involve a breach of confidentiality owed to any client or former client (r 6(1)(b)(i));
• contains any direct or indirect mention of his or his law practice’s success rate (r 6(1)(b)(ii));
• makes any comparison or criticism in relation to the fees charged, or the quality of the services provided, by any other solicitor or law practice (r 6(1)(c));
• may reasonably be regarded as touting (r 6(3));
• is likely to diminish public confidence in the legal profession or to otherwise bring the legal profession into disrepute (r 7(1));
• may reasonably be regarded as being misleading, deceptive, inaccurate or false (r 7(1)(b) read with r 7(2)); and
• may reasonably be regarded as unbefitting the dignity of the legal profession (r 7(1)(b)).
Note: Whether publicity of a law practice may “reasonably be regarded” as being misleading, deceptive, inaccurate, false or unbefitting the dignity of the legal profession under r 7(1)(b) of the Publicity Rules depends on the mode and contents of the publicity.
Further, under r 7(1)(c) of the Publicity Rules, the Council of the Law Society has the power to determine that a certain form of publicity engaged in by a law practice is an undesirable manner of publicity.
A3. There is no prohibition against such filming in the Publicity Rules but every solicitor of the law practice is responsible for ensuring that the filming complies with all the rules governing publicity in Singapore, which are found in Part III of the Publicity Rules. Thus, the name of the law practice should not be disclosed in any of the scenes as such disclosure may reasonably be regarded as touting under r 6(3) of the Publicity Rules. It is however not improper for the name of the law practice to appear in the closing credits as acknowledgment of the law practice’s participation.
In addition, every solicitor of the law practice must comply with his or her ethical obligations under r 24 of the Legal Profession (Professional Conduct) Rules by taking all necessary measures to ensure that no confidential information is disclosed to the film crew or any other third party during the filming within the office premises. For example, all confidential files and documents should be securely stored out of sight during the filming.
A4. No. The indiscriminate dissemination of unsolicited brochures whether by post or otherwise may reasonably be regarded as touting in breach of r 6(3) of the Publicity Rules. However, sending a copy of the brochure to a person with whom you have an existing lawyer client relationship or to a person who has requested a brochure or who has indicated a desire to know more about your firm does not infringe r 6(3). It is also permissible: (a) to have copies of the brochure on your firm’s premises for existing or potential clients or for third parties to pick up when visiting the premises; and (b) to publish the brochure and/or its contents on your firm’s website.
A5. Under r 9 of the Publicity Rules, publicity of a law firm in or in conjunction with the publicity of any third party is permitted, subject to the Legal Profession Act and the Publicity Rules. It is therefore not improper for a law firm to accept an offer of complimentary advertising in a newspaper, so long as the law firm ensures that the advertising complies with rr 6 and 7 of the Publicity Rules. In particular, the description of the specialisation of the law firm in the advertisement must be in accordance with rr 6(1)(a) and 6(2) of the Publicity Rules. Rule 6(1)(a) requires that any claim to expertise or specialisation must be justified, while the factors to be taken into account in justifying such a claim are set out in r 6(2).
A6. No, because this will be understood by a layperson as an implied representation to the public that the foreign lawyer:
1. is a member of the Singapore law practice;
2. is registered in Singapore to practise either Singapore law or foreign law; and
3. is therefore subject to the ethical and regulatory regime applicable to all lawyers practising in Singapore. In the circumstances of the query, such an implied representation may reasonably be regarded as being misleading, deceptive or inaccurate publicity under r 7(1)(b) read with r 7(2) of the Publicity Rules. Including a footnote in the Singapore law practice’s notepaper to explain that the foreign law consultant is not registered in Singapore to practise Singapore or foreign law and is not a member of the practice does not sufficiently negate the potential to mislead a lay person.
Therefore, lawyers named on a Singapore law practice’s letterhead should be limited to:
1. partners or directors of the law practice; and
2. consultants, foreign lawyers or legal associates employed by the law practice in accordance with Singapore’s legislative and regulatory requirements.
A7. No, describing a foreign lawyer who is not employed by the Singapore law practice as a “consultant” in other publicity materials is also not permitted as that too represents to the public that the foreign lawyers are members of the Singapore law practice, are registered in Singapore to practice either Singapore law or foreign law and are therefore subject to the ethical and regulatory regime applicable to all lawyers practising in Singapore. If that representation is untrue, such publicity may reasonably be regarded as being misleading, deceptive or inaccurate under r 7(1) read with r 7(2) of the Publicity Rules.
Moreover, the Publicity Rules contemplate that a law practice may claim expertise or specialisation in its publicity materials only if a member of that law practice has the relevant expertise or specialisation. Rule 6(1)(a) of the Publicity Rules requires that any publicity of a law practice must ensure that any claim to expertise or specialisation can be justified. One of the justifications set out in r 6(2)(f) of the Publicity Rules is the “significance of the matters involving the advocate and solicitor or his law firm or a law corporation of which he is a director or an employee or a limited liability law partnership of which he is a partner or an employee”. It can be inferred from r 6(2)(f) that the scope of persons who can make a claim to expertise or specialisation under r 6(1)(a) is therefore restricted to members of the law practice.
The law practice is nevertheless permitted to describe its relationship with the individual foreign lawyer in other publicity materials. The following explanatory wording would be the minimum necessary for such purpose:
“XYZ, qualified in (name of foreign jurisdiction) to practise (type of foreign law), not registered as a foreign lawyer practising in Singapore, not registered by the Law Society of Singapore and not a member of the (name of law practice)”.
Care must be taken to ensure that the placement of the explanatory wording in other publicity materials is sufficiently prominent to avoid the potential to mislead lay persons and be in potential breach of r 7(1)(b) of the Publicity Rules.
A8. Yes, the indiscriminate and unsolicited distribution of flyers to the general public in public places is an act which may reasonably be regarded as touting under r 6(3) of the Publicity Rules. Such direct, in person solicitation of potential clients would be a breach of r 11A(1) of the Legal Profession (Professional Conduct) Rules.
In addition, distribution of flyers in public places is “unbefitting the dignity of the legal profession” under r 7(1)(b) of the Publicity Rules because it is more commonly associated with the retailing of goods and the provision of services of a vocational and nonprofessional nature. This mode of publicity is also “likely to diminish public confidence in the legal profession or to otherwise bring the legal profession into disrepute” under r 7(1)(a) of the Publicity Rules as this form of publicity fails to distinguish between the provision of legal services in the spirit of public service and the mere peddlingof wares by a merchant.
The targeted distribution of flyers otherwise than in a public place and to recipients who have requested such flyers or who have previously indicated a desire to know more about the law firm is not
touting.
A9. Publicity of a law practice through a television commercial is permissible, so long as the law practice ensures that the contents of the commercial comply with Part III of the Publicity Rules, especially rr 6, 7 and 9. Advertisement of a law practice through television would not be touting or reasonably regarded as touting under r 6(3) of the Publicity Rules, as they do not pose the same dangers as direct, in-person solicitation, namely, that the potential client may be subject to undue influence, intimidation and overreaching. Moreover, television advertisements are justified by the general public’s need for information about legal services and would not be in breach of r 7(1)(a) or (b) of the Publicity Rules insofar as the mode of publicity is concerned.
Care must be taken to ensure that the contents of the commercial comply with Part III of the Publicity Rules, especially because the commercial, which is usually brief, is primarily viewed by laypersons who can easily form misimpressions that are difficult to correct. For instance, a solicitor should ensure that the commercial:
• is not reasonably regarded as misleading under r 7(1)(b) by:
1. containing a material misrepresentation (eg, contradictory statements);
2. omitting a material fact (eg, failure to state that the law practice only acts in uncontested divorce matters if the practice has no expertise or experience in contested divorce matters);
3. containing any information which cannot be verified (eg, only a contact number is given without stating the name of the law practice); or
4. being likely to create an unjustified expectation about the results that can be achieved by the solicitor or his law practice (eg, stating that the law practice will be able to recover party and party costs in a civil matter); or
• is not reasonably regarded as unbefitting the dignity of the legal profession under r 7(1)(b) (eg, suggesting that other law practices overcharge their fees, setting out price lists); and
• does not make comparison or criticism of the quality of the services provided by any
other solicitor or law practice under r 6(1)(c) (eg, suggesting that only the solicitor can provide
the best deal).
A10. No, because there is no way for the public to verify whether the advertiser of legal services is in fact a solicitor or a law practice. Such publicity is reasonably regarded as being misleading under r 7(1)(b) read with r 7(2)(c) of the Publicity Rules as it contains information that cannot be verified.
It is also deceptive and unbefitting the dignity of the legal profession under r 7(1)(b) of the Publicity Rules. Even if such information can be verified by calling the contact number in the flyer, there is nevertheless a potential for abuse as the public is not able to independently verify the bona fides of the law firm until a call is made (upon which undue influence may unfortunately be exerted on the caller). At the very least, the name of the law firm should be stated in the flyer.
Ethics Committee
The Law Society of Singapore
1 Law Society of Singapore v Rasif David [2008] 2 SLR 955, p 976, para 52.
2 Ibid. Pp 978-79, paras 56-57.