Like any business, lawyers must be careful in misleading consumers when advertising. Even beyond the general ethical and legal obligations that applies to all advertising in Canada, lawyers and law firms are also required to abide by strict guidelines and restrictions as determined by various Canadian Law Societies. This attention has taken centre stage as of late in Ontario with the Law Society now proposing enhancement to their existing rules.
In Ontario, those rules are set by the Law Society of Upper Canada. Under Lawyers’ Professional Code of Conduct.
Rule 4.1 states that lawyers must not advertise in ways that are false or misleading. Nor can they offer or obtain their services in a manner that is coercive, harassing, or in any manner that exploits vulnerabilities including incentives or improper tactics for clients to switch lawyers.
Rule 4.2 is specific in what any lawyer may ethically represent and states that “A lawyer may market legal services if the marketing
(a) is demonstrably true, accurate and verifiable;
(b) is neither misleading, confusing, or deceptive, nor likely to mislead, confuse or deceive; and
(c) is in the best interests of the public and is consistent with a high standard of professionalism.
Despite these rules, and sometimes in direct contravention of them, lawyers continue to make claims that cannot be demonstrably true. Even those lawyers widely recognized by other lawyers as leaders in their practice areas would have a hard time verifying or providing some of the highly padded claims made on the internet.
The Law Society of Upper Canada, in an attempt to clarify the perimeters of what is appropriate has expanded in this in their commentary of the rules. The commentary prohibits, as an example, claiming amounts of money recovered for clients, the degree of success in past cases unless there is a clear statement that past results do not predict future successes, and that results will vary from case to case.
Similarly, the commentary makes it clear that lawyers should prohibit from superiority to other lawyers, promoting unrealistic expectations, implying they are aggressive, disparaging other persons and groups, taking advantage of vulnerable people, or using testimonials or endorsements that appeal to emotion.
Notwithstanding, a quick Google search would find all sorts of claim and advertisements that ostensibly, implicitly, and even clearly violate these rules and commentary.
Often, these rules are violated through “independent” websites that, even in their very domain names, can violate the rules lawyers are bound by. Some of these websites give the impression of independent ranking, when in truth they “rank” and “list” simply because lawyers have paid them to advertise. Indirectly, lawyers then receive the benefit of claims like “Top Toronto Lawyer” when in truth there is nothing more than paying for advertising on a site they would be unable to ethically run themselves. In addition, it may also be exploiting unsophisticated and therefor “vulnerable” people seeking counsel who are prone to such advertising. Most troubling, is that lawyers who use such sites to promote themselves are indirectly doing what they cannot do directly and is no less an ethical violation in my opinion.
Such sites are often are nothing more than “click bait” that gets potential clients to click on sites with false promises of the “best criminal lawyers in Toronto” or other “Top Toronto Law Firm” throughout Ontario. As can be seen above, none of these claims ethical as they cannot be proven “demonstrably true” or “verifiable”.
In other words, its the “FAKE NEWS” of legal advertising.
Courts do not keep statistics on knock outs, but there are still sensible means to find the “best” lawyer for any particular case. Here are some things to consider:
What year was the lawyer “called to the bar”?
Being “called the the bar” is the date that a law student becomes a lawyer and the obligations, responsibilities, and accountability that comes with it. The total time practicing as a lawyer is not necessarily indicative of a lawyers’ skill or abilities. However, there are some common sense conclusions that may be drawn from this.
If a lawyer has only practiced for a couple of years, chances are they are not properly experienced to take on more serious cases. However, that same lawyer may be better suited for less serious or complicated cases in delivering affordable legal services when enhanced expertise is not required.
Time spent practicing as a lawyer can be one of many valuable factors in assessing what lawyer is appropriate for your particular case.
Is the lawyer a “Certified Specialist” in their practice area?
There are very strict limits on what lawyers in Ontario can call themselves “experts” or “specialists”. Rule 4.3 states “A lawyer shall not advertise that the lawyer is a specialist in a specified field unless the lawyer has been so certified by the Law Society.”
In law, the term “expert” or “specialist” is a meritorious designation, reserved for those who have earned it.
The Law Society states, “When you hire a Certified Specialist, you are hiring a lawyer who is recognized and experienced in his or her field of law and who has met high standards.” A complete list of “experts” can be found within the Law Society Directory here. Be very cautions of any lawyer who claims to be an “expert” or “specialist” who is not in this directory. Anyone doing so is not only likely misleading you, being also unethical in expressing they are.
Does reputable media call upon them to provide commentary and opinion?
In searching out lawyers to provide “expert” legal commentary on, the main stream media is generally diligent and knowledgeable in who they call upon. Although far from a perfect standard, it can also be a valuable factor in determining who is knowledgeable in a particular area of law. To enhance that even further, legal commentary provided to legal media (such as Law Times, Canadian Lawyer Magazine, and other reputable legal media) is very useful.
Avoid relying on “legal news” sites whose very business is to advertise lawyers. A good rule to go by: if the website only advertises lawyers and firms, and not products for lawyers, then it is likely spam and “Fake News”.
What is their verifiable or proven experience?
It’s often very difficult to find out a past lawyers’ successes and experience. There are paid subscription services that list past cases but they can be very expensive and difficult to navigate. Fortunately, CanLii is a free caselaw service where you can search lawyers’ names and their past cases. If you want to know some of the cases your lawyer has done, do a quick search of their name here. Similarly, the lawyer may list past successes on their website (as we do) to demonstrably show the types of cases they have successfully argued in the past.
Are they members or executives of distinguished legal organizations?
Lawyers who are leaders in their field are very often active in their legal communities. Organizations like The Advocate’s Society, The Canadian Bar Association, the Ontario Trial Lawyers’ Association, and other such organizations are all very good examples of the types of organizations that reputable lawyers will join to enhance their skills and knowledge in their field. Those people who serve, or who have served as executives of those organization enhance this factor further.
Are they published authors in a particular practice area?
Being an author does not necessarily provide one the skill to obtain results; however, at a minimum it is a good indicator that someone who writes about a subject is knowledgeable in that area. If the lawyer has written a book on, for example, “Personal Injury Law” then there is a reasonably good chance that they are good at that particular area of law.
Do they set reasonable expectations?
Good lawyers know never to promise too much. This is not because they cannot deliver the best result, but because the law itself offers few certainties. Does the result sound too easy? Does the fee sound too low in comparison to others? Are they making claims that sound shady? All too often our firm hears phrases like “Lawyer X knows the Crown Attorney really well” or that “Lawyer Y said he can get my charges withdrawn on the first day”, and so on. Avoid these lawyers at all costs. Generally speaking, if all you are hearing is “good news” during an initial consultation, this is a bad sign as it relates to that counsel.
Most legal issues are complicated, expensive, and take a long time to sort out. Do not be mesmerized by promises that sound too good, easy, or inexpensive to be true.
Do they own, or are part of, a properly functioning office with overhead and employees?
Running a business is by far one of the most challenging aspects of law. It requires discipline, commitment, fulfillment of obligations, ingenuity, and continual attention. Being the owner or part of a successful business generally means that they will pass that same level of seriousness on to their clients. Be very wary of lawyers who meet at courthouses, coffee shops, or do not seem to have proper support behind them. These are all red flags. How one treats their own business is a good indicator of how they will treat their own clients.
Have the received recognition from institutions, non-profits, or other well-known organizations?
Be cautious of awards or recognitions that seem inherently vague like “People’s Choice”.
Who is the organization or agency backing the award or accolade? Is it reputable? Is it an organization like the Law Society, the Advocate’s Society, or the Canadian Bar Association? Who else has won such awards in previous years? Do they win the award every year?
“Awards’ that are general in name and oddly particular in attribution are often nothing more than misleading advertising.
Above all, meet your lawyer and ask them questions.
None of the above factors standing alone will be a sure way to get the best lawyer for your case. They are merely suggestions that you can use in your toolbox of decision making.
The best advice I can offer is to sit down with your potential lawyer. Ask them questions. Get a feel for who they are and what they will do for your case. Do they seem genuinely interested and suitable to your case? Do they ask questions or just provide conclusions on results they promise to deliver? Are the fees affordable? Are they reasonable for what they are suggesting? Do you trust them?
Remember, the lawyer you chose may be the most important decision in your life. Do so cautiously, wisely, and diligently.