The Legal profession is one of the noble if not the noblest profession on earth. As a profession of admirable significance, it has for the sentinels, various laws that regulate its practice. In this regard, without doubt, the Rules of Profession Conduct is the foremost statute that deals with the regulation of the profession, as per ethics and professional conducts. Within the wordings of the Law are provisions that spell out actions and conducts that are permitted and those that are not; one of which is the act of advertisement.
With respect to the improper attraction of business in the legal profession, advertisement happens to be one of the sub-parts that generate much controversy in the legal field. This is because of the different opinions presented with respect to the topic. Some have argued that a legal practitioner in Nigeria cannot advertise because the profession is a noble one. This piece is aimed at looking at the issue and at the end readers be able to consider whether or not advertisement is permitted or not, using the law as the sole tool for the discourse.
Advertisement can simply be defined as a public announcement in the newspaper, radio or any other media platform about something. It aims at making the public to be aware about the thing spoken about. Advertisement is provided for in Rule 39 of the Rules of Professional Conduct, 2007. Before the 2007 Rules was Rule 33 of the 1979 Rules which prohibited advertisement to a large extent with few exceptions similar to the current rules.
Rule 39 of the Rules of professional Conduct provides as follows:
(1) Subject to paragraph (2) and (3) of this rule a lawyer may engage in any advertising or promotion in connection with his practice of the law, provided:
(a) It is fair and proper in all the circumstances (b) It complies with the provisions of these Rules
(2) A lawyer shall not engage or be involved in any advertising or promotion of his practice of the law which –
(a) Is inaccurate or likely to mislead;
(b) Is likely to diminish public confidence in the legal profession, or the Administration of Justice, or otherwise bring the legal profession into disrepute;
(c) Makes comparison with or criticizes other lawyers or other professions or professionals;
(d) Includes statement about the quality of the lawyer’s work, the size of success of his practice or his success rate; or
(e) Is so frequent or obstructive as to cause annoyances to those to whom it is directed.
The provision of the Law as stated above is clear and not in anyway ambiguous. The law states to the effect that a lawyer can advertise subject to certain provisions. This in other words means that there are certain laid down tests an advertisement done by a lawyer must pass, in order for it to be permitted under the Law. These tests are broken down into twelve, for ease of apprehension. Thus for the purpose of this work, they shall be known as the Twelve tests of Advertisement. They are:
i. The advertisement must be fair and proper.
ii. It should be accurate and not misleading.
iii. It must not diminish public confidence in the legal profession.
iv. It must not diminish public confidence in the administration of justice.
v. It must not bring the legal profession into disrepute.
vi. It must not make comparison with other lawyers.
vii. It must not criticize other lawyers.
viii. It must not criticize other profession or professionals.
ix. It must not include statement about the quality of the lawyer’s work.
x. It must not include statement about the size of success of the lawyer’s practice.
xi. It must not include statement about his success rate.
xii. It must not be frequent or obstructive as to cause annoyances to those to whom it is directed
The analysis given above shows that a lawyer in Nigeria can advertise in so far as the advertisement is able to pass the twelve tests listed above. Thus, at what point can a lawyer advertise and at what point is a lawyer not permitted to advertise?
In the case of Legal Practitioners Disciplinary Committee v. Fawehinmi, (1985) 2 NSCC 998, the respondent was queried by the disciplinary body for advertising his book in a newspaper after editing. The advertisement stated thus:
“A New Book on Nigerian Constitution titled: Nigerian Constitutional Law Report 1981 Volume One, edited by Chief Gani Fawehinmi, the famous, reputable and controversial Nigerian lawyer…”
Although the office of the Attorney General did not get through with the count charges filed against the accused to the end of the case because of an issue of the composition of the tribunal on a matter of fair hearing, it is clear that advertisement is one act or activity that the legal profession does not accept in so far as it proves to compare one practitioner to the other or one Law firm against the other, and place on the advantage, one practitioner or Law firm over the other. The above case shows that the late Gani Fawehinmi of blessed memory brought to the fore, his success rate in the advertisement as he tagged himself as a famous Lawyer. This is contrary to the provision of the law.
The rules are clear and not to be contested. But a scenario that may present a case of properness is what remains vague and that is why most lawyers believe that advertisement is not permitted, despite the fact that the law says it is. To this writer, advertisement can be permitted in cases which are fair and proper. For instance, where practitioners of a particular area of the law is lacking and there are just two or three persons skilled in it; for the fact that such services are scares, there is nothing absolutely wrong in a lawyer making the public to be aware of the availability of such services in so far as it is not exaggerated. Let us consider some examples:
“This is to bring to the notice of the public that Keke and Associates is specialized in Migration law.”
Compare this to: ““This is to bring to the notice of the public that Keke and Associates; the best Firm in Criminal litigation in Nigeria is now specialized in Migration law.” Or;
“This is to bring to the notice of the public that Keke and Associates, a firm with the highest number of SANs is now providing Migration services.”
The readers can notice the simplicity in the first advertisement and the need for it, based on the scenario provided. Although it can be argued that even if the advertisement passes the various tests listed above, it could be caught by the web of soliciting, most precisely, Rule 39 (3) which states: Notwithstanding the provisions of paragraph (1) of this rule, a lawyer shall not solicit professional employment either directly or indirectly – (a) by circulars, handbills, advertisement, through touts or by personal communication or interview.
The possible argument would be that the advertisement above will amount to nothing but an indirect way of soliciting. However, it should be noted that the advertisement which may amount to soliciting must as well fall back to Rule 39 (1) and (2) which provide for the rule on advertisement. This is because with respect to advertisement, Rule 39 (1) and (2) are the gold mine-sub rules and must not be read in isolation. Therefore an advertisement which may amount to soliciting must be one which is improper. That is, the questions must always be: Is it proper to make such an advertisement? At what point will it be right to advertise? Something must necessitate the advertisement just as Garth Coates Solicitors’ “Journey to Citizenship”. Only that in the work: “Does a UK lawyer advertising in a Nigerian newspaper have implications on Nigerian lawyers?” by Ebi Robert, the UK based lawyer was criticized to have impersonated a legal practitioner in Nigeria.
Mr. Afam Osigwe said in his work: “The challenges of managing a law office in modern day Nigeria”, which he presented at the Law week of NBA Zaria Branch on the 29th of November 29, 2017, Law practice is a business but Legal practitioners are not businessmen. The implication here is that although a legal practitioner works to give quality services to his client which is business, he must not go outside the rules of the profession to give such services. Thus if a legal practitioner, advertises with a business caption, it will amount to soliciting by advertisement which is not proper, e.g, “This is to bring to the notice of the public that Keke and Associates is specialized in Migration law; services to be provided in cheaper rate.” A legal practitioner should not advertise as a business man even though he is in business. This is because business men are in competition and as such guided by the spirit of competition. Nevertheless, it won’t be out of place if a lawyer advertises to bring to the notice of the public about a legal service that is scares. It is this writer’s opinion that it will be proper and fair on such ground to advertise such as it is done in most Law firm websites indirectly. We must be able to know the difference. There are many Law websites that have details of the Firm in it, such as the area of specialization of the law firm. Others even make publication of their Law Journals which helps in the promotion of the Law firm; this is purely advertisement which is fair and proper, because promotion is another form of advertisement. I guess websites of Law firms are not for fancy; it speaks louder than a mere sign board. There are other fair and proper grounds not mentioned here as well.
Mindful of the fact that the argument may be counted, it must be noted that whether it is denied or not, advertisement in permitted by our law and not prohibited, else, one must give a perfect interpretation to the statement: Subject to paragraph (2) and (3) of this rule a lawyer may engage in any advertising or promotion in connection with his practice of the law.
In all, perhaps, the argument would be that the scenario above has not given the true meaning of the law, but an indisputable fact is that, advertisement is permitted under the law. In this wise, it is a fallacy to say that advertisement is prohibited because the legal profession is a noble profession; this is because England where the noble profession was copied directly from, permits advertisement or legal marketing right from 1986, when the Law Society of England and Wales permitted same, though regulated by the law as well. Legal advertisement is also permitted in the United States, only that legal advertising has broader grounds in the United States than it is in Nigeria. Despite this obvious fact, legal advertising is regulated in the US. The case of Bates v. Arizona State Bar 433 U.S. 350 (1977) is major in this regard. Hence, it will be better safe to say that advertisement in the Nigerian legal profession is restricted, but that it is prohibited, is a statement not right in law.
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