THE LAW SOCIETY OF NEWFOUNDLAND
REPORT OF THE COMMITTEE ON ADVERTISING

The most recent and final meeting of the committee was on Thursday, March 28th, 2002. All members were present with the exception of Roger Bill, the lay representative. While we would have preferred Mr. Bill being present, his views on this issue were well presented at earlier meetings.

This report represents the consensus of the Committee and expresses the "concerns" the Committee has and makes recommendations.

Firstly, the committee wishes to express the opinion that the rule in question, which is found as a schedule attached to the earlier report, is quite specific in what it allows and disallows by way of advertising. We would specifically refer you to Rule 8.10, and to a lesser degree 8.03. The committee was generally supportive of the rules as it exists.

With regard to the existing advertising, the committee is most concerned about advertising on the Internet in that it is the most difficult to monitor. (See examples - LEXPERT, attached hereto, The Canadian Legal Lexpert Directory 2001 and the examples of same are attached to our earlier report as Schedule "E".) Of course we do recognize that print advertising is more visible. The committee is of the opinion that such advertising has numerous examples of "comparison" advertising and claims of specialization both of which are contrary to the rules. The committee recommends that Benchers take immediate steps to bring this breach to the attention of the appropriate firms and members.

The committee is concerned about ads which use the term "most experienced". There is not any obvious consensus as to what the word "experienced" means when used in this context and as it invites comparison, the committee recommends that Benchers consider whether it should be tolerated.

Committee members expressed concerns about advertising that indicates you will not pay any fees unless successful. The committee questions whether this includes disbursements made in an unsuccessful claim. The committee recommends that any firm/individual member making this claim clarify in the ad whether or not it includes disbursements. It was felt that the present ads are potentially misleading.

The committee is of the opinion that any claim to "settle out of court" is misleading even if the lawyer in question does not do the litigating.

The committee recommends that the Benchers advise members using the phrase "proven track record" that this phrase is contrary to the rules as it is not verifiable and invites comparison.

In conclusion, the committee wishes to express the opinion that there are not many serious breaches of the Rules. The committee notes that during the life of the committee 1999-2002, there has not been one complaint regarding advertising.

While the committee believes that the concept of "good taste" in legal professional advertising is worth retaining we believe there will be little interest in disciplining firms for "bad taste" advertising unless there is the potential for a consensus within the profession. We were unanimous in feeling that we will recognize it when it appears!

The committee finally recommends that a standing committee on advertising be established to allow members to submit advertising prior to publication for an opinion as to whether it is within the Rules. In addition, this committee could undertake a periodic review of all advertising every two years and make recommendations to Benchers with regard to whether a review of the Rules should be considered. The makeup of this committee should change to ensure that this issue is dealt with as needed by a committee that is as responsive as possible to the changing attitudes of members and the public.

Interestingly enough the committee, while divided with regard to the advertising which caused the committee to be established, is unanimous in the opinion that there would not be any interest in an attempt to discipline for this advertising.

We hope this report will be of some assistance to Benchers with regard to the issue dealt with.

DENNIS C. MACKAY, Q.C., CHAIR

GUS LILLY, Q.C.

CHRISTINE FAGAN, Q.C.

JACKIE PELLETIER

ROGER BILL