Rules of Professional Conduct — Chapter 4

Commentary

[1] A lawyer may assist in making legal services available by participating in the Legal Aid Plan and lawyer referral services and by engaging in programmes of public information, education or advice concerning legal matters.

[2] As a matter of access to justice, it is in keeping with the best traditions of the legal profession to provide services pro bono and to reduce or waive a fee when there is hardship or poverty or the client or prospective client would otherwise be deprived of adequate legal advice or representation. The Law Society encourages lawyers to provide public interest legal services and to support organizations that provide services to persons of limited means.

[3] A lawyer who knows or has reasonable grounds to believe that a client is entitled to Legal Aid should advise the client of the right to apply for Legal Aid, unless the circumstances indicate that the client has waived or does not need such assistance.

[4] Right to Decline Representation - A lawyer may decline a particular representation (except when assigned as counsel by a tribunal), but that discretion should be exercised prudently, particularly if the probable result would be to make it difficult for a person to obtain legal advice or representation. Generally, a lawyer should not decline representation merely because a person seeking legal services or that person's cause is unpopular or notorious, or because powerful interests or allegations of misconduct or malfeasance are involved, or because of the lawyer's private opinion about the guilt of the accused. A lawyer declining representation should assist in obtaining the services of another licensee qualified in the particular field and able to act. When a lawyer offers assistance to a client or prospective client in finding another licensee, the assistance should be given willingly and, except where a referral fee is permitted by rule 3.6-6, without charge.

Commentary

[1] A person who is vulnerable or who has suffered a traumatic experience and has not yet had a chance to recover may need the professional assistance of a lawyer, and this rule does not prevent a lawyer from offering their assistance to such a person. A lawyer is permitted to provide assistance to a person if a close relative or personal friend of the person contacts the lawyer for this purpose, and to offer assistance to a person with whom the lawyer has a close family or professional relationship. The rule prohibits the lawyer from using unconscionable or exploitive or other means that bring the profession or the administration of justice into disrepute.

Commentary

[1] This Rule establishes, among other things, requirements for communication in the marketing of legal services. These requirements apply to different forms of marketing, including advertisements about the size, location and nature of the lawyer's practice and about awards, rankings and endorsements from third parties.

[2] Examples of marketing that may contravene this rule include

(a) stating an amount of money that the lawyer has recovered for a client or referring to the lawyer's degree of success in past cases, unless the statement is accompanied by a further statement that past results are not necessarily indicative of future results and that the amount recovered and other litigation outcomes will vary according to the facts in individual cases;

(b) suggesting qualitative superiority to other lawyers;

(c) raising expectations;

(d) suggesting or implying the lawyer is aggressive;

(e) disparaging or demeaning other persons, groups, organizations or institutions;

(f) using testimonials or endorsements which contain emotional appeals.

[3] Examples of marketing that do contravene this rule include 

(a)  marketing services that the lawyer is not currently able to perform to the standard of a competent lawyer;

(b) bait and switch marketing, that is marketing by which clients are attracted by offers of services, prices or terms different from those commonly provided to clients who respond to the marketing;

(c) marketing that fails to clearly and prominently disclose a practice that the lawyer has of referring clients for a fee, or other consideration, to other licensees;

(d) failing to expressly state that the marketed services will be provided by licensed lawyers, by licensed paralegals or both, as the case may be;

(e) referring to awards, rankings and third party endorsements that are not bona fide or are likely to be misleading, confusing, or deceptive.

[4] Paragraphs (a) to (d) of Commentary [3] are intended to ensure that marketing does not mislead by failing to make clear what services are actually available and are intended to be provided. It is important that there be no "bait and switch" aspect to marketing. Paragraph (d) is intended to better ensure that prospective clients are aware whether the marketed services being offered will be performed by lawyers or paralegals.

[5] Paragraph (e) of Commentary [3] addresses marketing by reference to awards, rankings and third party endorsements. The terms "awards" and "rankings" are intended to be interpreted broadly and to include superlative titles such as "best", "super", "#1" and similar indications. Awards, rankings and third party endorsements which contravene this rule include those that:

(a) do not genuinely reflect the performance of the lawyer and the quality of services provided by the lawyer but appear to do so;

(b) are not the result of a reasonable evaluative process;

(c) are conferred in part as a result of the payment of a fee or other consideration rather than as a result of a legitimate evaluation of the performance and quality of the lawyer; or

(d) the lawyer could not have demonstrated, at the time of reference, were compliant with this rule.

Particular care should be taken in respect of awards, rankings and third party endorsements referenced in mass advertising, such as in newspaper and internet advertising and advertising on television, billboards, taxis, buses and the like. In such contexts, references to awards, rankings and third party endorsements must be particularly clear and straightforward as there is little opportunity for reflection or appreciation on the part of the potential client or to provide context.

References to awards and honours that are genuine reflections of professional or civic service do not contravene this rule. For example, a potential client may consider it useful to know that a lawyer has been honoured for their service by the Canadian or the Ontario government, the Law Society or a professional organization. However, the lawyer should take care to ensure that such awards and honours reflect a genuine and responsible assessment of the lawyer in the public interest.

In any event, any reference to awards, rankings and third party endorsements must comply with all of the provisions of Rule 4.2-1.

[6] This Rule also requires marketing to be consistent with a high standard of professionalism. Unprofessional marketing is not in the best interests of the public. It has a negative impact on the reputation of lawyers, the legal profession and the administration of justice. The Law Society has acknowledged in the Rules the special role of the profession to recognize and protect the dignity of individuals and the diversity of the community in Ontario. Marketing practices must conform to the requirements of human rights laws in force in Ontario.

[7] Examples of marketing practices that may be inconsistent with a high degree of professionalism would be images, language or statements that are violent, racist or sexually offensive, that take advantage of a vulnerable person or group or that refer negatively to other licensees, the legal profession or the administration of justice.

Commentary

[1] It is important that the public be aware that both lawyers and paralegals are licensed by the Law Society, and of whether it is a lawyer or a paralegal who is offering to provide services.

Commentary

[1] The provision of second opinions is a valuable service to clients. However, second opinion marketing is commonly undertaken with a view to obtaining the retainer rather than providing a second opinion. Such "bait and switch" marketing is inappropriate. The marketing of second opinions is prohibited under this rule, whatever the intent of the marketing.