The Legal Marketing Association (LMA) is an organization serving the needs and maintaining the professional standards of marketing within the legal profession. LMA has over 2,500 members worldwide, including a Chapter in Vancouver. Members include marketers, lawyers, administrators, and suppliers and consultants to the industry.

The LMA Vancouver Chapter advances a resolution to encourage the Law Society of B.C., the governing body of lawyers and law firms in B.C., to accept third party endorsements of our law firms free of the current obligation that such statements be verifiable. While there is no Law Society rule forbidding third party endorsements, a 2004 Ethics Committee Review found that where those endorsements include subjective opinion, the statement could not be broadcast, as it would not be verifiable. As most third party endorsements for a lawyer or law firm tend be the subjective opinion of a client, referral source or publication, it stands to reason that under the requirement of such statements being verifiable, most endorsements would not be permitted.

Due to the support of the purchasing public, we have come to see the evolution of a number of directories developing listings, rankings and now publishing corporate counsel endorsements in an effort to assist that public in making a more informed legal purchase decision. Yet technically, we are not permitted to publish these rankings in our marketing materials. Additionally, those with first-hand experience of a law firms (our clients) are also not permitted a voice in our marketing materials. Ironically, this comes at a time when, due to public demand, law firms are at last facilitating more two-way communication with clients through client surveys, client audits, and other feedback mechanisms. At the same time, our firms – and our clients - are surrounded with a plethora of information from unrestricted media, such as the internet (blogs, e-mail) directories, etc. that appear free to make whatever comment they wish about law firms and lawyers. The public already has access to any number of third party endorsements. Thus, our Law Society rules only inhibit members of our profession from ensuring the public has access to this information from sources with our own profession.

Further, as technologies change there is a duty to re-examine rules and interpretations to ensure they remain relevant and fair. The internet has erased boundaries in which marketing can be seen. Additionally, many of us come from national firms; our other offices may not be similarly limited in how they can market within their regions, but how does such a firm determine whose rules to follow. One could suggest that we should follow the lowest common denominator, but in fact the common practice of most law firms is rather to apply the least restrictive rule to their marketing practices, not the most.

The usual practices in this and in fact virtually all other industries indicate that the provision of subjective third party endorsements is widespread and standard. The train has not only left the station, it is leaving by the hour, in every station across the country and in every profession. We risk appearing dated and even irrelevant if we insist of adhering to a policy that is no longer followed by our own or any other profession in this day and age.

And finally, one of the benefits of professional rules is that they ensure a profession operates in a way that best serves the needs of that profession’s intended audience or clientele. We feel that given all of the circumstances mentioned above, while at one time this rule and its interpretation might indeed have served the public’s best interests, currently it is doing just the opposite.

It is for all of these reasons that we put forward this resolution, and seek to request an opportunity to voice our opinion on this matter with the Law Society of British Columbia.

Statement of Policy

RESOLVED that the Legal Marketing Association, Vancouver Chapter, supports the removal of the Law Society of B.C. requirement that the content of all third party endorsements in the marketing materials be verifiable. We believe that it should be up to the consumer to consider the source, and determine for himself or herself the veracity of any such statements, and that the marketing law firm referenced should not be under obligation to do so.

Substantiation of our Statement of Policy

Introduction:

The Legal Marketing Association (LMA) is an organization serving the needs and maintaining the professional standards of marketing within the legal profession. The Vancouver Chapter has adopted the forgoing resolution to request that the Law Society of B.C. lift any and all restrictions on our ability to publish third party endorsement in our promotional materials.

All lawyers in the province of B.C. fall under the guidance of the Law Society of B.C., which serves as their regulatory body. As such, our lawyers and law firms are subject to the Law Society’s rules and interpretation of those rules as they relate to a number of aspects of the law profession, including marketing. Most of the rules relating to marketing a lawyer or law firm reside in Chapter 14 of the Professional Conduct Handbook. While there is no rule directly forbidding third party endorsement, the rules do require that all statements a firm publishes or otherwise says about itself (or its lawyers) must be true and verifiable. This rule, as it relates to third party endorsements, was tested before the Ethics Committee on October 5, 2000, at which time the Committee reinforced this interpretation stating that “because a statement that a firm is “the best law firm” cannot be verified, it is not proper to use it.” In other words, while the lawyer could prove that it was “true” that a member or members of the public made a positive statement about that firm, he could not prove that the statement they made was in fact true (that his law firm was the “best” law firm in that region), as the statement was based on subjective opinion.

This ruling means that technically, we should not be referencing any rankings or comments on our lawyers or our firms where we cannot verify that the information is correct. The Law Society has suggested this would include Lexpert and Martindale-Hubbell rankings, comments about our firm in Chambers, Best and other directories, as well as any client commentary that expresses a subjective opinion on our lawyers or law firm.

Testimonials from recognized legal publications such as Lexpert, Chambers, Martindale-Hubbell, Best or others are often cited as authoritative experts on evaluating legal service. A number of these directories are further taking advantage of their ability to publish by now seeking out and printing client commentary on our lawyers and law firms. So it would appear that this information is already being published outside of the Law Society’s control.

At the same time, law firms are increasingly obtaining solicited and unsolicited commentary from our clients, who have first-hand experience with our lawyers and law firms. This information is being collecting through a variety of feedback mechanisms such as client surveys, client audits, or unsolicited comments from clients in the form of letters, e-mails, blogs, and other communication mediums. While ranking systems – primarily conducted through a peer rating system – are one way to determine a lawyer’s level of skill in a particular area of practice, one might argue that this information is even more pertinent coming from an individual who has paid for the provision of that service, such as a client. Yet we are not able to publish this information if it contains a subjective opinion.

The internet has changed our lives in so many ways, one of those being that availability of marketing information within our own jurisdiction from all other jurisdictions. So while our local law society may seek to enforce rules limiting our marketing content and practices in certain ways, other firms outside of our jurisdiction but advertising and marketing within this jurisdiction are not so restricted. We also have a number of national firms in Vancouver. It is awkward, at best, for the marketing departments of these firms to determine which rules they must address in which province. While one solution might be to move all marketing to the lowest common denominator in terms of allowable marketing activities, we question the logic of requesting (or requiring) significant business entities like national law firms in Canada to do so. Law firms, after all, are businesses. The Law Society’s more recent development of rules around Law Corporations and LLPs have demonstrated acceptance of this fact and an ability to evolve according to law firm evolution. We would simply seek to ask for the same update to relevancy in the marketing rules.

LMA International created our organization’s first position statement based on this issue of multi-jurisdictional marketing. In the US, law firms must adhere to the State Bar rules in every state in which they market and have an office. The internet, however, doesn’t discern between state lines. Therefore, law firms spanning more than one state must adhere to two or more sets of rules, which can (and often do) contradict each other. LMA International voted in favour of a position statement requesting that all State Bars conform to a standard set of marketing rules to overcome this issue (based on the American Bar Association’s Ethics 2000 recommendations, with some modifications).

Here in Canada the legal profession has similarly recognized this same issue exists. The Federation of Law Societies (based in Ottawa) is working on a national Model Code of Conduct in which they will likely harmonize the various law society rules on, among other areas, marketing. Should LMA Vancouver successfully adopt this position statement, we hope to make a presentation (together with LMA members in Toronto and Montreal) to the Federation to offer our assistance in crafting the marketing rules section of this document. This will take time, however, and until national rules exist, we will still seek to encourage our own local law society to make the changes suggested in this position statement.

Subjective third party testimonials are an accepted and embraced marketing approach by the buying public. Their use is a common marketing practice in virtually all industry sectors, including in most professional services. (Please see the examples we have provided below). In fact, endorsements are often seen as more valuable commentary than that given by a law firm describing itself. These endorsements are seen to provide relevant opinions that might help a purchaser consider points of differentiation between similar service providers or products.

Despite law society restrictions on subjective third party testimonials, technically all editorial about a firm is an implied third-party endorsement. Not as blatant as an advertising campaign, winning editorial coverage is another marketing strategy proving to be very effective, cleverly disguising testimonials. But even outside of PR, law firms are regularly publishing their rankings from various directories, reference to their placement on lists for “top deals” or “most frequently recommended” (from publications such as Chambers and Euromoney), and even direct client quotes – subjective or otherwise. This is in part due to the fact that most law firms are unaware of the 2004 Ethics Committee results and the interpretation of these rules, or are simply proceeding until such time as the Law Society makes it difficult to do so.

See KPMG release on website.

“For the 5th time, KPMG LLP has been named one of Canada’s Top 100 Employers for 2008 in Mediacorp’s survey of 1,800 organizations, representing over 90 industries and sectors across the country. Mediacorp’s media partner the Toronto Star also honoured the professional services firm by naming it one of the Greater Toronto Area’s Top 50 Employers.”

Ernst & Young lists awards on website.

BDO Dunwoody posts a media release of award announcement.

PWC Canada posts media release.

Business Objects use testimonials on their website.

ING seeking testimonials for their website.

According to their website, one of the purposes of the Law Society of B.C. is to protect the public interest in the administration of justice.

The profession of legal marketing was founded on the success of Bates v. State Bar of Arizona (433 U.S. 350, 1977) in which the Supreme Court of Arizona determined, in essence, that the right of the public to make a more informed purchase decision outweighed the desire of the State Bar to police itself through limitation of access to differentiating information that would provide such information. Ultimately, it is up to the public to determine the validity and relevance of that information. Back here in Canada, Freedom of Information legislation would agree. It does not demand that information be accurate, only that there is access allowing the public to judge the relevance and accuracy for themselves.

It now appears that the Competition Bureau of Canada would agree that current law society restrictions in Canada are not best serving the interests of the public they are attempting to protect. As reported in Lawyers Weekly, January 18, 2007, the Competition Bureau calls for changes to law society regulations of lawyers that might “unnecessarily restrict competition”. The article states, “The study recommends that law societies lift the restrictions on comparative advertising for price and other verifiable factors. Chris Busuttil, a representative from the Competition Bureau said that of all the recommendations in the study ‘removing restrictions on advertising is really paramount… Someone can go to Best Buy and learn more about the flat screen TV they are thinking of purchasing than they can right now when they go and try to pick a lawyer.’”

While the Competition Bureau limits itself to “verifiable” factors, we would use their argument to go further by suggesting that personal experience by client should also be an acceptable piece of information to share. We would suggest that even members of the Law Society of B.C. Ethics Committee have, on occasion, asked for referrals when making their own purchase decisions – legal or otherwise. In doing so, they have confirmed that such information can be a critical piece of research prior to making a purchase decision. Would it therefore be appropriate to restrict such access to the purchasing public of legal services when your purpose is to concern itself with the public’s best interests? We think not.

Conclusion:

The legal marketing profession is relatively new to Canada. While Vancouver has been home to members of this profession for 19 years now, only recently did the Legal Marketing Association, our global professional association, open up a chapter here. In the absence of ready access to legal marketing expertise, the Law Society has crafted, interpreted and maintained marketing rules as conscientiously as possible. However, now that legal marketing expertise is readily available in our jurisdiction, we intend to serve as an advocate for lawyers and law firms on best practices in legal marketing in front of our local lawyers regulatory body. We understand that the position outlined in this document may already be up for debate at the Law Society. By adding our voice and credibility to the discussion, we feel this is a strong position statement on which to build a successful outcome, positioning us to potentially play a greater role with the Law Society and the Federation in assisting with the development of legal marketing rules in this province and in this country in future.

Identification of sponsors:

• Heather Gray-Grant, Task Force Chair (Director of Business Development, BLG Vancouver)
• Susan Van Dyke (LMA Vancouver, President, Van Dyke Marketing & Communications, Principal)
• David Garner (AHBL Managing Partner)
• Jennifer Weber (CBA)
• Michael Dunn (Partner with Dunn & Co and on CBA Executive)
• Blair Lill (Director of Marketing, Farris)
• Pam Denecky (Director of Marketing, Lang Michener)
• Doug Holt (BIV)