Thursday, 24 January 2019

Advertisement and solicitation

ADVERTISEMENT AND SOLICITATION
BY OLU ODUDBEMI ESQ
Advertisement is a notice or display advertising a thing or something whilst
solicitation is to accost someone and offer one’s services.
Before the making of the Legal Practitioner’s Rules 1964, advertising was generally
prohibited in the legal profession under Rule 33 of the Old Rules. In LPDC v Gani
Fawehinmi (1985) 2 NSCC 998, the Late Chief Gani Fawehinmi after editing a book,
advertised it in a newspaper known as ‘West Africa’ in the following words, “A New
Book on Nigerian Constitutional Law titled Nigerian Constitutional Law Reports 1981
Vol One Edited by Chief Gani Fawehinmi the famous, reputable and controversial
Nigerian Lawyer.”
The office of the Attorney General of the Federation brought a two count charge of
professional misconduct against Chief Fawehinmi on the grounds of contravention
of the rules of advertisement under Rules 33 and 34 of the RPC 1979. The matter
was however struck out but on the successful challenge of the composition of the
tribunal, which had offended the rule of natural justice and fair hearing.
Under Rule 39(1) of the Rules of Professional Conduct, 2007 however, a lawyer
may engage in any advertising or promotion in connection with the practice of law
so far as it is fair and proper in all circumstance; and complies with the Rules. The
rule expressly provides:
39.(1) Subject to paragraphs (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.
The Rules in Section 39 (2) then provides the circumstances where advertisement
is prohibited as follows.
39 (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 criticises other lawyers or other
professions or professionals;
(d) includes statement about the quality of the lawyer’s work, the size
or success of his practice or his success rate; or
(e) is so frequent or obstructive as to cause annoyance to those to
whom it is directed.
Soliciting is similar to advertising. Soliciting relates to a statement or conduct by a
lawyer which is calculated to lure a particular person or group of persons to engage
the lawyer
Rule 39(3) RPC 2007: Specifically, a lawyer shall not advertise his services or
solicit professional employment either directly or indirectly by (a) circulars,
handbills, advertisement, through touts or by personal communication or interview;
(b) by furnishing, permitting or inspiring newspaper, radio or television comments
in relation to his practice of the law (c) by procuring his photograph to be published
in connection with matters in which he has been or is engaged or concerning the
manner of their conduct, the magnitude of the interest involved or the importance of
the lawyer’s position; (d) by permitting or inspiring sound recordings in relation to
his practice of law; or (e) by such similar self-aggrandisement.
The most infamous reported case on improper attraction of business, albeit not in
the legal profession was the locus classicus case of Allison v General Council of
Medical Education and Registration (1894) 1 QB 750. In that case, the Plaintiff, a
medical practitioner published a great number of advertisements in several
newspapers which contained reflections upon his medical colleagues generally and
their methods of treating their patients, the plaintiff after castigating them, advised
the public to have nothing to do with his colleagues and their drugs. The
advertisements also recommended to the public to apply to the plaintiff for medical
advice and stated his address and the amount of fees, which he charged. The General
Council found him guilty of infamous misconduct in a professional respect and
directed that his name be erased from the register of medical practitioners and his
challenge of that decision was dismissed.
Rule 39(4) states some forms of advertisement that are allowed.
Nothing in this rule shall preclude a lawyer from publishing in a reputable law list or
Law Directory, a brief biographical or informative data of himself, including all or
any of the following matters
(a) his name or names of his professional association; (b) his address, telephone
number, telex number, e-mail address, etc ;(c) the school, colleges, or other
institutions attended with dates of graduation, degree and other educational or
academic qualifications or distinctions; (d) date and place of birth and admission to
practice law; (e) any public or quasi-public office, post of honour, legal authority,
etc;(f) any legal teaching position;(g) any national Honours ;(h) membership and
office in the Bar Association and duties thereon; and (i) any position held in legal
scientific societies.
Rule 40 RPC permits the printing of business cards (also his note-paper, envelopes
and visiting cards) containing his (a) name and address; (b) academic and
professional qualifications and title including the words “Barrister-at-Law”,
“Barrister and Solicitor”, “Solicitor and Advocate”, “Legal Practitioner”, “Attorney –
at-Law”, and (c) any National Honours.
Also permissible to send to a client notice of a change of address or telephone
number or other circumstances relating to his practice, a lawyer may send to his
clients notice of the change and may insert an advertisement of such change in a
newspaper or journal: Rule 43 RPC.
Also having the word “Barrister and Solicitor” or “Solicitors and Advocate” written
after the lawyer’s name or a sign or notice containing his or firm name and
professional qualifications displayed at the entrance or outside in building where
his chambers is situated is permissible. However, the sign and notice must be of
reasonable size and the design must be sober: Rule 41 RPC
A lawyer’s degree may also appear after his name. If he is a notary public, it could
also be included but it does not include specialist qualification. For example,
Commercial Land consultants, experts in family issues, divorce, custody, welfare, etc.
Such advert is unethical.
Rule 42 RPC permits a lawyer who writes a book or an article for publication in
which he gives information on the law, to add his professional qualification after his
name while Rule 46(1) RPC permits a lawyer to write articles for publications, or
participate in radio and television programmes in which he gives information on the
law, but he shall not accept employment from any such publication or programme to
advise on inquires in respect of their individual rights. Rule 46(2): A lawyer shall
also not (a) insert in any newspaper, periodical or any other publication, an
advertisement offering as a lawyer, to undertake confidential enquiries or (b) write
for publication or otherwise cause or permit to be published except in a legal
periodical, any particulars of his practice or earnings in the Courts or cases where
the time for appeal has not expired on any matter in which he has been engaged as a
lawyer; or (c) take steps to procure the publication of his photograph as a lawyer in
the press or any periodical. Section 46(3) RPC: Where a lawyer is instructed by a
client to publish an advertisement or notice, the lawyer may put his name, address
and his academic professional qualifications.
Rule 44 RPC: Where a lawyer is available to act as an associate of other lawyers
either generally or in a particular branch of the law or legal service, he may send to
lawyers in his locality only and publish in his local journal, if any, a brief and
dignified announcement of his availability to serve other lawyers in that connection
as long as the announcement is not designed to attract improperly.
Soliciting for instructions and employment is probably the most common and
degrading example of unfair attraction of business. It lowers the prestige and
reputation of the lawyer involved and the profession as a whole. In includes the
following:
1. Solicitation for employment in Court premises.
2. Solicitation for conveyancing business.
3. Conducting search at the Land Registry to detect defects with a view to
employment in litigation.
4. Instigating litigation.
5. Ambulance chasing.
6. Under association. This is an indirect form of touting; and could also be
referred to as “class touting”.
7. Pasting circulars, handbills and advertisement through touts or by personal
communication or interview
8. Furnishing, permitting or inspiring Newspaper Radio or TV comments in
relation to his Law practice
9. Procuring his photograph to be published in connection with matters he has
handled or the manner of their conduct
10. Permitting inspiring sound recording in relation to his practice of Law.
11. Similar self-aggrandisement.
Finally, it is desirable for a legal practitioner to meet with people in clubs,
restaurants and other social gatherings, but not where the aim of such gathering is
for a legal practitioner to associate unduly with other persons who are in a special
position to assist him to obtain employment. It is very dishonourable for a legal
practitioner to distribute his cards in social gatherings to gain employment. This is
very degrading and unethical.

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