In this article we seek to examine, the restrictive legal framework surrounding the prohibition of advertising in Barbados and compare it to the more extensive and contemporary legislation in Jamaica. We will then seek to answer the question on whether the ban on advertising remains true to its objective and more importantly if it has had a detrimental impact on fair competition and infringes a person’s constitutional right to freedom of expression.
07/13/2022
Graeme A.J. Brathwaite and Anthony D. Francis-Worrell
Introduction
Morgan & Morgan, a famous US Law Firm with its modest slogan “For the People,” is arguably the most advertised law firm in the United States of America. With its thirty seconds of catchy jingles interplayed with simple acting, its message is made clear – it is the number 1 injury law firm in the USA and it is effective at getting results.
Advertising is truly an effective tool used to attract customers and drive economic growth. Unfortunately, in Barbados, unlike their counterparts in the USA, the Legal Profession Code of Ethics, (1988) (“the Code”) prohibits attorneys from advertising. This law was derived from the old Victorian notions of British Common law, which did not deem the legal profession as a strict trade, but as a noble profession. The intention of the law by imposing prohibition on advertising is based on public policy and maintaining the dignity of the legal profession.
The Barbados Experience
Rule 62(1) of the Code states that, “An Attorney-at-law shall not in any way make use of any form of advertisement calculated to attract clients to himself or any firm with which he is associated, and he shall not permit, authorize or encourage anyone to do so or reward anyone for doing so on his behalf.” It appears that the legal effect of this rule imposes a complete bar on attorneys advertising their services. Additionally, there is no statutory definition of the term “advertisement” nor any guidance from the Bar or the judiciary as to what type of advertising would be considered “calculated to attract clients to an attorney or his firm”. Arguably Rule 62 of the Code is vague and restrictive.
In Barbados over the last 30 years the law against advertising has remain unchanged. Conversely in Jamaica there has been response to the rapid commercialization of the profession in the form of three amendments to the legislation over a 40-year period.
The Jamaican Experience
The legal profession in Jamaica is governed by the Legal Profession Act and rules made by the General Legal Council such as The Legal Professional (Canons of Professional Ethics) Rules (“The Canons”). The Canons contain ethical rules which govern Attorneys. The Canon which was originally gazetted in 1978 limited advertising by Attorneys to business cards, listing in telephone directories which could only contain the Attorney’s name, address, telephone number and the name of his/her law firm or professional associations.
In 1998, the Canons were amended to revoke some of the rules which prohibited or restricted advertising by an Attorney and introduced new canons. These amendments were contained in the Legal Profession (Canons of Professional Ethics) Amendment Rules 1998 (“the Advertising Canons”).
In the advent of the internet and social media platforms the General Legal Council reviewed the Advertising Canons and recommended changes and made amendments – the Legal Profession (Canons of Professional Ethics) (Amendment Rules) 2016 (“the 2016 Advertising Canons”). The 2016 Advertising Canons did not remove the parameters surrounding advertising by an Attorney but made some amendments, deleted certain canons, and introduced a definition of “Advertisement”. Canon II(m) states that:
“An advertisement” means any communication (whether oral or in writing or any other visual form and whether produced by electronic or any other means) which is intended to publicize or otherwise promote an Attorney or Law Firm in relation to their practice or their availability for professional engagement. This includes but is not limited to: any brochure, signage, website, notice circular, leaflet, poster, placard, photography, illustration, emblem, display, stationery, directory entry, article or statement for general publication”
In Jamaica the General Council has been active inwriting Attorneys and bringing to their attention which advertisements have been in breach of the 2016 Advertising Canons which has prompted judicial determination on the legal effect of the canons in a number of cases.
Infringement on Fair Competition and Unconstitutionality of Rule 62
They are persuasive legal authorities emanating from the EU that held that restrictions on advertisement for lawyers could be considered an unreasonable restraint of trade. We content that in accordance with our Fair Competition Act this restriction could be deemed as anti-competitive and contrary to the goals and purpose of the fair competition policy. Equally, an argument can be made that Rule 62 is in direct breach of the Barbados Constitution in that it infringes a person right to freedom.
Admittedly everything turns on the slight nuances contained in the Barbados Constitution when juxtaposed to the Jamaican Constitution. For example, section 13(2) of the Jamaica Constitution provides that a constitutional right could be limited, “…save only as may be demonstrably justified in a free and democratic society”. Where as in the Barbados Constitution are equivalent section 20(2) provides that:
“20 (2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision-
(a) that is reasonably required in the interests of defence, public safety, public order, public morality, or public health…”
These issues were considered in the recently decided Jamaican case of Vaughn O'Neil Bignall v The General Legal Council and the Attorney General of Jamaica[2022] JMFC FULL 1 . In this case an attorney questioned the constitutionality of the advertising regulations in Jamaica when he contended that the regulations infringed on his right to freedom of expression. In determining whether the limit imposed by the 2016 Advertising Canons on a person’s constitutional right was justified the court stated that:
" First, the objective to be served by the measures limiting a Charter right must be sufficiently important to warrant overriding a constitutional protected right or freedom. The standard must be high to ensure that trivial objectives or those discordant with the principles of a free and democratic society do not gain protection. At a minimum, an objective must relate to societal concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important. Second, the party invokingS.1 must show the means to be reasonable and demonstrably justified. This involves a form of proportionality test involving three important components. To begin, the measures must be fair and not arbitrary, carefully designed to achieve the objective in question and rationally connected to the objective…”
Therefore, the rule against advertising must be relative to pressing and substantial societal concerns that it warrants overriding a constitutional right. Additionally, in order for a rule, regulation or law to override a constitutional right, it cannot be too vague or ambiguous so that it prevents a citizen from knowing the extent to which rights have been limited. In Luscher v Deputy Minister, Revenue Canada, Customs and Excise, [1983] B.C. W.L.D 816,1985 Can LII 3085 (FCA) Hugessen J held:
“In my opinion, one of the first characteristics of a reasonable limit prescribed bylaw is that it should be expressed in terms sufficiently clear to permit a determination of where and what the limit is. A limit which is vague ,ambiguous, uncertain, or subject to discretionary determination is, by that fact alone, an unreasonable limit. If a citizen cannot know with tolerable certainty the extent to which the exercise of a guaranteed freedom may be restrained, he is likely to be deterred from conduct which is, in fact lawful and not prohibited. Uncertainty and vagueness are constitutional vices when they are used to restrain constitutionality protect rights and freedoms. While there can never be an absolute certainty, a limitation of a guaranteed right must be such as to allow a very high degree of predictability of the legal consequences.”
Conclusion
The purpose of the Code is to ensure the high standards of professional conduct in the legal profession, provide against deception and against practices which would tend to demoralize the profession. However, in the twenty first century the notions and perceptions of the profession that were held in 1988 are not applicable in its narrow sense today. We must ask ourselves if the rule against advertising for Attorneys is so pressing and substantial today that the limitation of a constitutional right is reasonably required in the public interest. We submit it is not.
Greater commercialization of the legal industry, and the sheer increase in the number of practitioners has made the fraternity an aromatic melting pot. The covid-19 pandemic has given fresh perspective and has highlighted the already impoverished but even worsened conditions of fledgling attorneys. In our existing climate the prohibition on advertising has left junior and new attorneys alike with little prospects of attracting new business, due to the lack of the usual word of mouth business development opportunities in network environments that existed pre-covid. The situation is an untenable one and requires immediate address.
