The topic of soliciting and touting in the legal profession is a subject of discussion that invited much attention in recent times, especially on social media. The concept of marketing the legal career of an individual is a new phenomenon made available through social media portals but has created a controversy within the profession itself.
A recent video circulated in social media portals depicting a senior lawyer and his partners engaging in an elaborate performance on the legal services offered and using the Supreme Court complex premises to shoot the said video advertisement has caused an uproar.
The act has resulted in the Bar Association of Sri Lanka (BASL) being propelled into action to conduct a disciplinary inquiry into the matter.
Advertising for lawyers in any form or touting is tabooed in Sri Lanka.
The ethics committee of the BASLhas already sought clarifications from the lawyer concerned on the matter.
Nevertheless, a senior official of the BASL said,
“This has to take place with the proper procedure, adhering to the rules of natural justice.”
The subject of using social media and other new platforms as forms of advertising has raised issues in the recent past, especially when it comes to providing advice online or making educational videos to be posted on sites such as YouTube.
Only back in June in response to several complaints received by its members on the matter, the BASL issued a cautionary note, stating that it is of the view that “the provision of legal advice by Attorneys–at– Law through such online and social media platforms administered and managed by persons who are not Attorneys–at–Law (after such online and social media platforms have been and are publicized, marketed and advertised in the public domain) constitutes the act and conduct of touting, which is unlawful and which could result in criminal action being taken against the Attorney–at–Law concerned and also steps be taken for the removal or cancellation of the license of the Attorney–at–Law concerned from practice and office.”
Supreme Court (Conduct of and Etiquette for Attorneys–at–Law) Rules 1988 prohibits touting under which advertising is also subject of concern.
Furthermore, in terms of Section 2(d) of the Intermeddles with Suitors Ordinance No. 11 of 1894 (as amended) and the Attorney–at–Law concerned is also liable to be removed or suspended from practising as an Attorney–at–Law under and in terms of Section 3 of the said Ordinance No. 11 of 1894 if found guilty of the same.
The concept of lawyers not being allowed to advertise is rooted here through the British system. It is mainly due to the perception that was reposed on the profession, as it is more of a noble pursuit to help society rather than to make it a viable venture. Therefore, allowing to advertise is strictly prohibited except within a rigorously limited margin.
In the case of Re A. V. De Silva, Mac Donnel CJ said that “The bar and its traditions exist because of the independence of each advocate. He must succeed in accordance with his merits, and it would be subversive of all the traditions of the bar if he were to employ any such assistance as that of tout to obtain his practice.”
However, there has been some conversation about a change of approach within the realms of changing times. Some practitioners are of the view that advertising should be allowed but with limitations.
Former President of the BASL, President’s Counsel Geoffrey Alagrantham sharing his views stated that “while the rules have to be relooked at and changed in keeping with modern developments where a degree of publicity or advertising may be permissible so clients know the markets and choices, yet BASL will have to curb flamboyance and extravagances.”
“Everything boils down to common courtesy and decency. And a sense of propriety,” he said.
As we have taken over these principles from the British legal system and currently even in the British system certain advertising such as in the yellow pages is allowed. This should of course be allowed uniformly across the board so that the unequal capacities of the individual lawyers should not place any weightage.
If even such a balanced approach is not given then persons with ample resources and capacity will advertise with grandeur while a practitioner with no such means will be limited to lesser options. The main objective of this principle is to ensure that a client or laymen are not coerced into deciding who should represent him but rather he should have the option to decide for himself.