Recently, there are lawyers calling to loosen up the restrictions towards advertisement. People are talking about letting lawyers advertise more or advertise freely so that small firms can sustain and lawyers in general can get more business. I write this article to provide a different viewpoint.
To start with, the Legal Profession (Publicity) Rules 2001 does not ban all means of advertisement or publicity. Lawyers and law firms are allowed to hold themselves out as lawyers and provide necessary information to the public in order to differentiate themselves from and to compete with others. It does, however, disallow publicity through advertisement with such frequency and in a manner inconsistent with the rules.
The Legal Profession (Publicity) Rules 2001 provide 18 types of Approved Information. Lawyers may share to the public their name, contact detail, background, historical data, designation, position, qualification, area of practice, language, and other information approved in writing by Bar Council. It is basically everything about the lawyer and the law firm that the public needs to know.
What is not included as Approved Information are name of clients (to protect client’s right), praising statements (like “we are the best law firm in town”), claim of expertise (like “I am an expert in XX area”), claim of earnings (as to show how ‘rich’ the lawyer is), number or proportion of winning cases (since quality of legal service are not determined by number of wins and lawyers are bound by cab-rank-rule), any statement of inducement or duress to obtain business, and the like. The restrictions are not that bad and rather altruistic and honest.
Lawyers are allowed to gain publicity in many ways. This include distribute business cards; publicise through electronic media; contribute articles to journals, magazines and newspapers; publish books; distribute brochures, leaflets, or pamphlets to employees and clients; advertise in legal and non-legal directories approved by Bar Council; create customised stationaries of the firm/lawyer; agree to interviews by the press, radio and TV; and participate in public lectures, seminars, and forums. There are already quite a number of ways for lawyers to publicise themselves if they wish to. In any event, publicity by word-of-mouth and reputation by previous works have always been encouraged by the Malaysian Bar. It is free and readily available for lawyers from all walks of life.
The restrictions to the mode of gaining publicity are clearly stipulated. This include the restriction that lawyers can only provide Approved Information about themselves, cannot hire agents to distribute name cards or leave stacks of leaflet at random public area, cannot place oversized nameplate, etc. I note that cold-calls and TV / billboard advertising are not in the list of allowed mode of publicity as well. Then of course, there is a general clause that says a lawyer cannot publicise “in a manner as may reasonably be regarded as being ostentatious, in bad taste, misleading, deceptive, inaccurate, false, sensational, intrusive, offensive or in any other way unbefitting the dignity of the legal profession”.
To summarise the Legal Profession (Publicity) Rules 2001 in loose and laymen terms, lawyers are allowed to tell the public, in many ways, almost everything about themselves in their professional identity but the overriding principle is not to gain business by bragging, packaging, misleading, harassing the public, or damaging the dignity of lawyers. In my view, it is a fair rule.
The Legal Profession (Publicity) Rules 2001 does not create disadvantage to the legal profession. It is true that lawyers can’t advertise freely like other business sectors, however, due to the specialised nature of the legal profession, lawyers are generally not in competition for business with non-lawyers. Therefore, the limited publicity rights are merely removing competition by advertisement between lawyers and law firms only. It does not create any disadvantage to the legal profession as a whole.
The Legal Profession (Publicity) Rules 2001 is beneficial to the public. Commercial advertisement by it's nature does not guarantee true information and may mislead the public. Therefore, publicity by commercial advertisement may drive traffic to an incompatible lawyer, the wrong type of lawyer, or simply a lawyer that is not that particular client's cup of tea. With advertisements and publicity restricted to only the true and accurate Approved Information, the public may choose their lawyer base on real and transparent information, reducing the risk of mismatch caused by unrestricted advertisement and publicity.
The Legal Profession (Publicity) Rules 2001 is beneficial to the legal profession. The rules encourage lawyers to concentrate on being a good lawyer and hone their skills in order to compete. With the rules in place, publicity is clearly not meant to be the main focus of the legal profession. The allowed mode of publicity by contributing articles, accepting interviews, and participating in lectures also require some form of knowledge and skill rather then mere act of creating presence. Lawyers as individuals will benefit from being forced to focus more on the long term success tool of improving their legal skills rather then the short term success tool of publicity. When the quality of the legal service in Malaysia improves, the perception of the public towards the profession as a whole will improve alongside as well.
The Legal Profession (Publicity) Rules 2001 is beneficial to good lawyers and law firms. The publicity rules create a fair and honest competition between lawyers because the rules support lawyers with better service and quality rather than those with better advertising skill (or with more advertising fund). The tools for competition left between lawyers are referrals from people who knew the lawyer, publicity by having good relationship with society, trustworthiness, experience, qualifications and background etc. The works and standard of a lawyer is somehow verified in these modes of publicity as compared to commercial advertisement. The current system ensures that public will be more likely referred to a good lawyer. The current system support good lawyers and law firms. It leads the legal profession towards an honourable and reputable one. It makes honest members of the legal profession proud to be one.
I understand the power of advertisements and how it can boost sales and gain popularity. It’s like a gun. It feels powerful if one person is holding it. It is chaotic if everyone keeps one in their pocket. It is unjust when the industry is shaped by the person holding the biggest gun. It is because I understand the power of advertisement that I prefer it to stay limited and governed while used in the Malaysian legal profession.
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