WHY SHOULD LAWYERS BE ALLOWED TO ADVERTISE THEIR SERVICES?

“My people perish because of lack of knowledge.” _ Hosea 4:6 The ignorance of where to find help and from whom, is an injustice to this world and to the poor “Wanainchi” being tortured by the hand of able bodied men. Advocates in Uganda are governed by the Advocates Act, Cap. 267 and the Advocates (Professional Conduct) Regulations, S.I. No. 267-2. According to the Advocates Act , an advocate means any person whose name is duly entered upon the roll. It is to be appreciated that there are valid reasons in favor of why advertisement of advocates is limited. 

Advertising can be a forum for dubious claims that can mislead potential clients and erode the culture of professionalism among advocates . Advertising can also cheapen and commercialize the profession Indian Council of Legal Aid and Advice v. Bar Council of India , gave another explanation in this regard that the legal profession is a noble one which ought not to be tarnished by the negative effects that comes with advertising. This is a clear current image of the current position in Uganda. However, the Bar Council of India (BCI) has not completely ignored the developments in the liberalized generation. 

The Bar Council of India recently decided to amend Rule 36 by adding a clause that allows advocates to maintain websites about themselves or their business and help people to make more informed choices. In the case of Bar Council of Maharashtra v. M.V. Dadholkar J, stated that “the canon of ethics and propriety for the legal profession totally taboo conduct by way of soliciting, advertising, scrambling and other obnoxious practices, subtle or clumsiness, for the betterment of the legal business. 

The law is not a trade, briefs no merchandise and to the heaven of commercial competition or procurement should not vulgarise the legal profession” Section 25 _ Advocate not to advertise his or her name, etc. (1) An advocate shall not allow his or her name or the fact that he or she is an advocate to be used in any commercial advertisement. (2) An advocate shall not cause his or her name or the name of his or her firm or the fact that he or she is an advocate to be inserted in heavy or distinctive type, in any directory or guide and, in particular, a telephone directory. Section 74 (1) (f) of the Advocates Act cap 267 also prohibits the actions of advertising by an advocate as a disciplinary offence which call punishment of such advocate. 

It provides that no advocate shall advertise in relation to his or her professional business, except as may be permitted by regulations made by the Law Council. In my well-considered and legally backed opinion, this law is too archaic and superfluous to stand the present day’s significance test; it was too good for the old days when advocates were rare and deserved the worship. This law cannot stand the test of time and even if it remains expressed, its operation is fettered by the present day’s media vigilance. 

 MY STANDPOINT: Among all types of advertisement i.e. informative, comparative and competitive advertising, informative advertising should be accepted and a regulation be enacted to guide the operation of legal adverts. I feel overly privileged to assess the significance of such a provision which I, from the word “go”, found undesirable, unbefitting, incongruous, outmoded and obsolete to warrant gratitude in the present age. At least profoundly, I can state that me, given a right to practice a business – legally, has no justification for why I should not advertise the same. First and fore most I believe that these are some of the common terminologies allotted with most or all businesses; marketing, advertising, customers, clients, sales, income, profit, among others. Any entity that associates more with such terminologies, is most likely to be considered a “business.” 

According to the Black’s Law dictionary, a business is defined as _ “commercial enterprise carried on for profit; a particular occupation or employment habitually engaged in for livelihood or gain.” Against this background, I submit that lawyering is a “service;” one of a kind that is done in expectation of income and survival; it is not a charity! It’s one honorable occupation habitually engaged in for livelihood. For the fact that lawyering has proved to be commercial viable and that a vast majority of people depend on it for livelihood, it is an income generating business and deserves to find privilege in all allotments common with any other business such as advertising even because in Uganda, prospective law firms must register the name of the firm under the Business Names Registration Act before operating. 

Accordingly, advertising is core to business development because it is an important medium for communicating with the public and informing potential customers of services offered. As I was perusing through an article written by a lawyer under Angualia Busiku & Co. Advocates, titled “The Advertising And Marketing Law In Uganda”, I found it rather interesting to see a flier headed “Need a Lawyer? Let us help you. ” Before proceeding with merits of the article, my mind was thrust immediately into a debate on whether this was or wasn’t an advertisement. Whereas section 25 continues to limit professionals from advertising, it appears to me that the same is over taken by events due to the fact today that most lawyers are having websites on which all which may amount to advertising is done. 

The relevance of this rule is this put to question. According to the Black’s Law Dictionary , “Advertising” is the action of drawing the public's attention to something to promote its sale. Advertising can take the form of comparative advertising, competitive advertising, or information advertising. Comparative advertising is Advertising that specifically compares the advertised brand with another brand of the same product. Competitive advertising is Advertising that contains little information about the advertised product, and that is used only to help a producer maintain a share of the market for that product. Informative advertising is Advertising that gives information about the suitability and quality of a product. 

 I submit that advertising in the legal profession should be allowed but with specifications on what specific type of advertising is maintainable for lawyers. Informative advertisement should be allowed for lawyers as opposed to competitive and comparative advertising. Allowing this will set momentum and award impetus to practitioners. As another challenge, it is important to note that Uganda lacks specific laws to govern the advertisement business even though advertising is provided in sections of several laws such as; _The Kampala City Authority mandated with regulating activities of advertisers in line with city standards; _ the Physical Planning Act of 2010 which clearly stipulates what may be erected on a plot of land; _the Public Health Act cap 281 sectionn51 concerning advertising of cures for venereal diseases; _even self-regulations exists such as the Radio Advertising Clearance Centre – RACC decides whether individual advertisements meet the radio advertising standards code; _our professional brothers in offering medical services, are prohibited from advertising the same “in an unprofessional manner” as stated in the Uganda Medical & Dental Practitioners Council Code of Professional Ethics, section 12. 

Health practitioners are limited to publicizing their name and registered professional category on their letterhead stationery, business cards and other means for information purposes. I suggest that similary the Advocates (Professional Conduct Regulations) should be amended to allow informative advertising and to categorize the modus operandi of advertising in what is done in an “un professional manner” so as to give an allowance of some sort to awareness creation to push the legal services ahead. It is in the interest of justice to advertise. I submit that as the bible states that “my people perish because of knowledge,” it promotes better justice to community when the oppressed get to know where to find help and from whom. So many people in villages are oppressed at the hand of rich fellows with highly pronounced lawyers and a big social status yet the former know not of their close neighbor, who is a lawyer and could offer them legal help at a subsidized cost. 

In the Kenyan case of Okenyo Omwansa George & Anor v Attorney General & 2 Ors court held that, “the prohibition of advertising constrains the consumers of legal services to such information as is necessary for them to make informed choices. Advertising enables the consumers to have information regarding where, when, from whom and how to get legal services of an advocate.” Court further noted that “a consequence of the ban on advertising of legal services is that the consumer is left in the dark about the nature and extent of legal services that can be offered by an advocate thereby undermining the right of access to justice.” I submit that since a similar rule has been abolished by other jurisdictions, Uganda too is actually late to do the same so as to save the interests of justice. 

How can we sojourn the existing stereotype that “lawyers are too expensive” without first of all unveiling who the lawyer we are referring to is? It is trite that when I know the lawyer most closest to my neighborhood, it forms a beginning of the solution I seek and more so, I find a better negotiation with the lawyer most known to me than a stranger I often see adorned in expensive suits, sat behind lavish tables, savoring the comfort of the AC (air conditioner) of his profligate, posh vehicle. I opine that it should be legalized to advertise one’s professional services but if that advert is false, deceptive, or misleading, then it amounts to professional misconduct. 

Yes, I believe that alternatives to advertising have for long existed among us such as wearing expensive suits, living a lavish lifestyle, having a website and publishing scholarly matter in news papers and journals among others but I have also seen members of other fields like business, social scientists, journalists and even non-elites have done this way too better than most lawyers have actually done so there is no distinguishing or call it litmus test for who is or isn’t a lawyer. Courts have gone ahead with harsh statements to demolish and prohibit the avenues of attracting and obtaining clients, regarding them as touting. In Re A Solicitor , Scott LJ stated that; Touting for clients is like advertising, fundamentally inconsistent with the interest of the public and with the honor of the profession. 

The function of a solicitor is to advise or negotiate or fight for ac client, but only if retained. The client may seek him but he must not seek the client. Gone are the days when honorable and learned practitioners enjoyed the worship by men. Gone are days when lawyers were like Jesus walking through Capernaum and all the sick laying down their bodies and garments for him to purify. In the world today, lawyers are really many to the extent that the LDC intake doubles progressively per year and from the face of matters, creation of many more branches to capture the large lawyer population will be highly and necessarily applauded. 

Therefore, avenues to bring awareness of who is who in what field will and are already necessary to build and one way to this is through amending section 25 to allow informative advertisement. One other activity related to touting as a tool of advertisement (emphasis mine) is the institution of suits without proper instructions. Regulation 2(1) states that No advocate shall act for any person unless he/she has received instructions from that person or his or her authorized agent. This I believe is an important rule regarding professional ethics and also ensures commercial cautiousness. It prevents the bad situation of having two similar matters pending before court. In such circumstances, courts have been caused to investigate which advocate was briefed first. This is an absurd and embarrassing situation to the legal fraternity. In Nalugwa S. v. Tombooth (U) Ltd it was found by Benedicto Kiwanuka CJ that a lawyer had taken up a matter without proper instructions from his client. The learned justice stated that in such matters the conduct of the advocate who filed the suit should be investigated. Court in Mugisha M Abraham & 4 Ors v. Rwambuka & Co- Advocates regarded transactions similar to these as champerty agreements as defined by Elizabeth Kobusingye v. Annet Zimbiha HCCS No. 3955 of 2014 as a bargain between a stranger and a party to a suite by which a stranger pursues a patty’s claim in consideration of receiving part of the judgment proceeds. This to me, appears to carry the same effect like unlawful advertising in an unprofessional manner. Even in contracts,such agreements in law are classified as illegal as in Tritel on the Law of Contracts -12th Edition. Such professional misconduct has been rejected in Shell (U) Ltd & 9 Ors v. Rock Petroleum & 2 Ors HCMA No. 645 of 2010. 

I opine that such conduct is inappropriate and the legal position on it is well placed to curb advertising in an unprofessional manner. Freedom of expression. It is important to note that advertisement is a tool of communication as held by Justice Egoola Ntende in Digitek Advertising Ltd V Corporate Dimensions Ltd stating that outdoor advertising is a form of speech or expression which is protected by the right to freedom of speech. Article 29 gives the right to freedom of expression to be enjoyed without discrimination. 

Therefore against this background, I opine that advertisement is one means through which a person can express his or her opinion and so our mouths should not be gripped for a reason that we belong to a certain social status unlike others. Right to information. This right is provided for under the 1995 Constitution of the Republic of Uganda which stipulates that every citizen has a right of access to information except where the release of the information is likely to prejudice the security of the state or interfere with the right to the privacy of any person. I believe that clients have a right to obtain information concerning what they need and so that they can obtain the best quality service from those well qualified for it. 

Take for instance, the US allows advertising on television, newspapers and billboards. Bates v State Bar of Arizona disregarded the American position on the ban of advocates’ advertising whereby the Supreme Court decision confirmed that the public’s right to information is paramount over the Bar’s desire to regulate the activity of the legal profession. The Supreme Court noted that “advertising, which is a traditional mechanism in a free market economy for a supplier to inform a potential purchaser of the availability and terms of exchange, may well benefit the administration of justice.” Therefore, a complete ban on advertising by advocates undermined the right of access to justice. Right to practice one’s profession. section 74 (1) (f) prohibit the actions of advertising by an advocate as a disciplinary offence which call punishment of such advocate. It provides that no advocate shall advertise in relation to his or her professional business, except as may be permitted by regulations made by the Law Council. These regulations prohibit the advocate from advertising, a thing which I also consider as limiting the right of an advocate to practice one’s profession (effectively) as enshrined under article 40(2) of the 1995 Constitution of the Republic of Uganda. 

The right to practice one’s profession was broadly discussed in Charles Onyango Obbo &Anor v. A.G. Merits of specialization. On rather a good hand, allowing advertising will enhance specialization and by not eroding the old adage that “a lawyer must know everything” but to allow and appreciate one’s expertise in particular field so as to enable better service that will enhance clients’ excellence. The rule is discriminatory. Article 21 of the 1995 constitution postulates equality and equal treatment to different to all persons without distinction based on among others, their “social or economic standing” and prohibits discrimination on such enjoyment of economic rights. it is openly clear that discrimination exists in the profession and is being created by the members themselves. This in essence could carry a negative effect of blocking new entrants in the legal service providing market place while developing only the already established firms. 

 Taxation demands. legal practice is subjected to taxation which demands a lot for the business to earn so as to meet the taxation demand as well as retain some considerable income for paying off workers and partners in the legal business. Massive advertisement is therefore necessary like for any other business to run in surplus and meet its mandatory expenditure. Advertisement is thus necessary in a free market economy wherein the forces of demand and supply override the operations in this economic dispensation. In conclusion therefore, Uganda needs to experience and appreciate a drift from its old legal position that is too archaic and superfluous to stand the present day’s significance test; it was too good for the old days when advocates were rare and deserved the worship. This law cannot stand the test of time and even if it remains expressed, its operation is fettered by the present day’s media vigilance.

Ahimbisibwe Innocent Benjamin 

(Entertainment Lawyer)