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Advertising by lawyers: is ban still relevant?

As a rule, a lawyer, by virtue of him being a lawyer, is not allowed to advertise or other-wise publicise his practice.

This rule is reflected in the Code of Ethics for Advocates in Rule 2 which even goes as far as imposing upon lawyers the duty of not permitting other persons so to do so on their behalf.

This rule banning advertising by lawyers has a long history and goes as far back as the Victorian era when the legal profession was regarded as somewhat ‘untouchable’.

Up to a few decades ago this rule was observed locally to the extent that lawyers who used to participate in radio or television programmes, especially those giving legal advice, used to remain anonymous in the sense that the viewer or listener was not made aware of the identity of the lawyer concerned. Nowadays this is no longer the case with various legal professionals actually appearing or participating on a regular basis in programmes both on television as well as on radio, where the viewers or listeners who phone in with their legal queries are aware of their identities.

Perhaps the time has come to revisit the rule referred to above with the scope of making it more relevant to the exigencies of modern times.

When the rule was first conceived, the number of lawyers in proportion to the rest of the population was very low, and there was never really a problem of a lawyer finishing up without clients. Nowadays the situation is somewhat different in the sense that the number of lawyers has increased with the result that a lawyer recently graduated from university will more than likely face very much of an uphill struggle to establish himself enough to cultivate a law practice which would afford him a decent living, unless he or his family have some kind of connections or even a fully established law firm.

This brings to the fore the point of whether or not the rule in the Code of Ethics referred to above is in fact ripe for review. As stated, it is difficult, if not impossible, for lawyers to establish themselves and gain a sound reputation unless they have some kind of external help. This ‘help’ may usually be because they would themselves be born into a family which already owns an established legal practice or through some other connections which the novice lawyer would have made. In effect this situation only makes the journey of the novice lawyer without that ‘help’ that much harder.

One cannot really ignore the fact that a large number of lawyers are graduating every year from university. It is a truism to affirm that a large number of them either do not have connections in the legal profession or for one reason or another do not have the opportunity of becoming a fully fledged member of a large legal firm. In fact only a very small percentage of these lawyers eventually do establish a law practice all of their own and it is felt that one of the biggest hurdles of doing this is the fact that lawyers are not allowed to advertise their practice, even if in a limited manner.

Only a very small percentage of these lawyers eventually do establish a law practice all of their own

On the other hand, it would not be inappropriate to argue that the term ‘publicise’ seems to have taken on a new, much wider dimension because of today’s modern means of communication. Websites informing the world about the services offered by law firms or even individuals abound. The question is whether this in itself should be regarded as ‘publicising’ or whether this should be regarded as ‘information dissemination’, which in itself may be commendable if not essential.

It is strongly felt that it is high time that the Code of Ethics referred to above in respect of whether a lawyer may in fact ‘publicise’ his practice be adjourned so that it may reflect better today’s realities. It would seem that nowadays this rule risks very much becoming little more than a dead letter. This situation cannot be allowed to remain as otherwise the relevance of the Code of Ethics as a whole is bound to suffer.

Joseph Bonello is a lecturer in the Department of Public Law at the University of Malta.

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