January 2, 2017
Earlier today the Law Times published an interesting update to the Law Society of Upper Canada’s (LSUC) review of lawyer advertising (see: LSUC Action on Advertising Coming This Year). In its note, the Law Times reported that the LSUC Treasurer said he expects that the Society’s report on lawyer advertising would come before Convocation for recommendations no later than February, 2017.
Lawyer advertising in Ontario has been subject to increased scrutiny over the past several years, which led to an Advertising and Fee Issues Working Group and an Advertising & Fee Arrangements Issues Working Group Report.
The LSUC has been reviewing the regulation of lawyer advertising in Ontario based on, among things, complaints that some law firms are advertising for services that they do not intend to provide (and in fact, conduct extensive advertising campaigns to refer incoming business to other law firms). Interestingly, the LSUC has indicated that it has some 90 active files in relation to advertising complaints involving lawyers.
Other key issues raised by the LSUC include the use of endorsements and awards that are not objectively verifiable, lack of clarity in “all-in” pricing for legal services and lack of transparency in contingent and referral fee arrangements (see, for example, Advertising and Fee Arrangements).
Several of the lawyer advertising issues flagged by the LSUC, including the authenticity of endorsements and up-front pricing, have also been enforcement priorities for other advertising regulators, including the Competition Bureau and provincial consumer protection agencies. See, for example, Ontario to Mandate “All-In” Prices For Travel Advertising, Competition Bureau’s Annual Internet Advertising Sweep Focuses on False or Misleading Endorsements and Canada Increases Scrutiny of Online Paid Endorsements.
Helpfully for advertisers, the LSUC’s Treasurer said that “there is nothing per se wrong with advertising”. He indicated, however, that where advertising was misleading it was in the public interest to regulate. This is consistent with, for example, the general and specific misleading advertising rules set out in the federal Competition Act. Hopefully, whatever revised advertising rules for lawyers are adopted in Ontario will be limited to claims that are false or misleading and not, as has been the case with some professional regulators in the past, on prohibitions that are difficult or impossible to quantify or that favour particular business models or technology.
While this current LSUC advertising initiative appears largely focused on the personal injury bar, it is a reminder that Canada’s misleading advertising rules apply equally to most businesses and industries (including the professions) unless a specific exclusion applies.
The LSUC’s review of lawyer advertising is also a reminder that in many regulated sectors, there may be additional restrictions or regulations on advertising that apply in addition to general federal and provincial consumer protection laws.
This means that counsel advising professionals or professional associations in this area may need to review sector-specific advertising regulation in addition to general misleading advertising rules (for example, in addition to federal Competition Act or provincial consumer protection rules).
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