Blaming the Advertisers

What the most populous, back then by far the most litigious, the most prosperous and easily the most heavily lawyered jurisdiction in Australia did in 1993, by a combination of both sides of politics, was to liberate lawyers to advertise "in any way the barrister or solicitor thinks fit". The same law forbade false, misleading or deceptive advertising and went further by forbidding advertising if it "might reasonably be regarded" as such. Similarly, the price of the new liberty included not merely the pre-existing prohibitions on misleading and deceptive conduct which would automatically apply under the Commonwealth’s Trade Practices Act 1974 or the State’s Fair Trading Act 1987, but also conduct which merely "might reasonably be regarded" as contravening those provisions. So, lawyers did not become free to the same extent as other advertisers, commercial or otherwise: there was extra restraint and caution required.

Unfortunately, even the most charitable observer could be forgiven for thinking that the succeeding Governments in New South Wales, and the Law Society in New South Wales, have been less than enthusiastic in their policing of these requirements. Either that, or else no-one in authority has ever seen a personal injury litigation advertisement they didn’t like. Perhaps it’s time for the confessions of the regulators.

In my opinion, one aspect of all litigation advertisements should always have been closely scrutinized. The fee arrangement sloganized as "no-win-no-pay" really takes the cake as inherently misleading - unless the advertising lawyer is somehow promising to indemnify unsuccessful plaintiffs against the legitimate claims for costs which would almost invariably be ordered against them in favour of the successful defendants. Reimbursement of certain expenses, and the possibility of fee demands if compromises were not accepted by clients, are other examples where such advertisements could easily misrepresent the true position. Alas, there are no traces of attempts to regulate any delinquencies by advertising solicitors in these regards, assuming they ever took place.

I hope this does not sound too complacent on behalf of barristers. The observable fact is that there has been virtually no advertising by barristers, notwithstanding our freedom to do so.

Over this whole issue, like a blanket over a pea, is the pervading national policy of the Nineties, viz competition policy. Freedom to advertise litigation services was advanced as critical to real competition, and competition was advanced as critical to an enhancement of access to justice. (It is ironic, as well, to recall the bi-partisan support for so-called uplift to be permitted on the fees of litigators who agreed to charge fees only if the client were successful. The Bar resisted uplift, as quite unnecessary given the century-old willingness, approved and applauded by the High Court, under its secular saint Sir Owen Dixon, to take "spec briefs". That resistance was in vain, but at least the original suggestion of 100% was moderated to 25%. These were, like the advertising thaw, Government policies supported by the Opposition. The conservatives were in power.)

Now, solicitors willing to offer personal injury litigation services may advertise, more or less, only in print - and only in the quaint manner of informing an eager public of their names, addresses and areas of practice. Note the signal omission, which we know is deliberate because it was protested before the new regulations were made. Notwithstanding competition policy, notwithstanding consumerism, and notwithstanding the statutory requirement for fee arrangements to be disclosed where practicable before a client retains a lawyer, the new Puritan advertisements may not - on pain of criminal sanction and disciplinary damnation - mention a price. Even worse, one could be forgiven for thinking, would be a whisper of the awful possibility that a litigator might take a case without expecting to be paid if it doesn’t succeed.

Given that cases may be good, bad or indifferent, it is clear that this undiscriminating anti-advertising regulation is calculated to prevent good as well as bad cases from being litigated as often as they are supposed to be at the moment. Thus, the sorry spectacle is presented of a Government, cheered on by the Opposition - parties reversed from 1993, but their agreement on the latest nostrum for lawyers’ wickedness intact - making law to stop ordinary and poor people going to law.