By Edrick Roux

As an attorney, one practises in a highly competitive environment. In addition to the inherent difficulties of practising in a field that requires long hours, intelligence and hard work, one must also compete with other attorneys.

Many firms do this by stating the one thing they can claim with any certainty – that they have existed for a long time and therefore must be doing something right. Many law firms proudly announce how long they have survived in the legal profession, with some proclaiming a hundred years or more of practising in their respective fields; an impressive feat, but the real question is this: Although they have survived for a hundred years, will they be able to adapt to meet the challenges the legal profession is currently facing?

These challenges include changing laws, technological advancements and the opinion of many practitioners that the four-year LLB degree is insufficient to prepare graduates to enter the legal profession.

Businesses across the world have started incorporating technology into their operations in every conceivable way and if the legal profession is to survive it will need to do the same.

Fortunately, the profession has begun its transformation, with advances such as e-mail correspondence and teleconferences being widely embraced. Above and beyond this, the profession has begun to make use of technological advancements in other areas, such as the recent amendment to the High Court rules to provide for service of court process by e-mail in certain circumstances.

Advertising legal services

While some firms rely on their reputation as a long-standing firm to attract new clients and ensure they remain competitive, with the world changing at an exponential rate, people are less concerned about how long a firm has been in existence and are more concerned about what the appearance of the firm says about it.

Therein lays the genius behind advertising: A firm does not necessarily need to be as good as the competition, but a good advertising campaign can make it look like it is as good, if not better.

To accomplish the daunting task of setting businesses apart and obtaining an edge in the cut-throat corporate world, businesses tend to rely heavily on creative advertising to catch the hearts and imaginations of customers and ensure, sometimes without customers consciously knowing it, that customers will support their products.

In this sense, legal practitioners are at a disadvantage as they do not receive any real instruction or training on how to effectively advertise their services. Having been viewed as taboo for many years, it may also be difficult for some of the older generation of attorneys to embrace this addition to the arsenal at an attorney’s disposal. Considering that attorneys may be new to the field of marketing and may receive resistance from their law society, marketing is made more difficult for an attorney when one considers that there are additional criteria they must adhere to in order to ensure that their advertising falls within the ambit of professional conduct and does not breach the rules of the relevant provincial law society.

Touting

Thus, in addition to what can be a complicated process of advertising, attorneys may have the fear that any advertising they attempt will fall within the definition of ‘touting’.

The Oxford Dictionaries’ website definition of ‘tout’ includes –

• ‘attempt to sell (something), typically by a direct or persistent approach; [and]
• attempt to persuade people of the merits of’

(http://oxforddictionaries.com, accessed 13-2-2013).

With such a wide definition, finding ways to effectively advertise without putting one’s career in jeopardy is a tricky process at best and a career-ending blunder at worst.

The Law Society of the Northern Provinces (LSNP) has provided some guidance on advertising and marketing in its ‘Advertising and marketing guidelines’. These, however, specifically state that nothing in the rules will permit a firm to directly or indirectly take part in touting. Although these guidelines are descriptive, I submit that they are insufficient.

The guidelines state that touting includes –

• ‘soliciting custom or work directly from any person;
• entering into an arrangement with any person, whether an employee or not, for the introduction of clients to the attorney; but this will not apply to –

–        any arrangement between an attorney and another attorney for the referral of work in the normal course of either’s practice;

–        any arrangement for the introduction to an attorney of other attorneys with a view to their instructing him on an agency basis;

• making unsolicited visits or telephone calls or sending unsolicited letters or printed material to any person (other than to an existing professional connection) whom the attorney knows or should reasonably be expected to know has an existing attorney/client relationship with another attorney, where such conduct is carried out with a view to, or is calculated to, establishing an attorney/client or correspondent relationship with such person.’

Further, the rules of the LSNP provide that ‘touting for work of a professional nature’ includes –

• ‘accepting or agreeing to accept or offering to accept remuneration for professional work at less than the tariffs of fees fixed by statute or regulation or rule; or
• by his/her conduct directly or indirectly holding himself/herself out or allowing himself/herself to be held out as being prepared to do professional work at less than such tariff unless he/she proves that he/she did not do so with the object of attracting work or business;
• advertising in any manner in which the public is invited to entrust professional work to him/her or in which he/she holds himself/herself or his/her firm out as being prepared or qualified to do such work;
• inserting his/her name or allowing his/her name to be inserted in any directory or law list unless –

–        such directory or law list is open to all practitioners practising in the province;

–        the charge per insertion in such directory or law list, if published in the Republic, does not exceed the sum of R 75 or if published outside the Republic, does not exceed the sum of R 150 or other respective sums as may from time to time hereafter be determined by the council;

• inserting or allowing his/her name to be inserted in any directory or law list in type other than ordinary type or inserting it or allowing it to be inserted in such manner as to give it prominence; provided that such an insertion in a telephone directory may be placed in bold type which is not significantly larger than ordinary type, and not elsewhere than within the ordinary alphabetical listings;
• inserting or allowing to be inserted in any directory or law list, or on his/her letterheads, professional cards or other stationery of any description, any qualifications he may hold other than –

–        a university degree;

–        a university diploma;

–        he words “Attorney”, “Notary”, “Conveyancer”, “Patent Attorney”, “Patent Agent”, “Trade Mark Agent” or “Administrator of Estates”;

–        that a practitioner has been admitted to practise in any country other than the Republic of South Africa;

–        that he/she or his/her firm specialises in any branch of the law (but subject always to such conditions as may be designated from time to time by the council);

• inserting or allowing to be inserted on his/her letterheads, professional cards, or other stationery of any description the names of any of his/her clients or any appointments he/she may hold other than that of justice of the peace, appraiser or sheriff;
• making a donation in any form, whether by way of a formal presentation or otherwise, to a public official or public office otherwise than at the request or through the medium or under the authority of a circle of which he/she is a member or under the authority of the council.’

Advertising or touting?

It becomes difficult to determine whether an advertisement, which may seem innocent enough, has in fact crossed the touting threshold and endangers the career of a practitioner. It would seem that intention does not play a role in determining whether or not an advertisement amounts to touting and neither does the nature of the advertisement. Therefore, in my view, anything could theoretically amount to touting.

In 2004 the Law Society of South Africa (LSSA) approached the Competition Commission for an exemption of the provincial law society rules, including aspects relating to advertising, marketing and touting. The commission rejected the application in 2011; however in 2012 the LSSA and the commission agreed that the rules could not be dispensed with without creating new ones and, because the rules emanated from the Attorneys Act 53 of 1979, to truly correct the situation, legislative intervention was required.

It was agreed that, until then, the existing professional rules of the statutory provincial law societies would continue to apply, except insofar as any restrictions on advertising that conform with the general advertising standards, in that the advertisement is truthful and not misleading to the public, are lifted.

The rules would be interpreted in a way that is not offensive to competition law. I submit that this means that advertising should be given more leeway in the legal profession, but, despite this, practitioners are still not allowed to ‘tout’ for work of a professional nature.

However, since touting is not defined, it is possible that advertisements conforming to the standard rules of advertising may still constitute touting and accordingly will constitute unprofessional conduct and could lead to disciplinary action.

If one considers one of the older rulings of the KwaZulu-Natal Law Society council, the above can be illustrated by way of an example.

Ruling 5 of August 2007 provides:

‘A member shall not do anything which is calculated to induce others to solicit work for him, nor shall he offer any financial inducement, whether by way of a loan or gift or otherwise, to any person in order to influence that person to refer work to him or to procure that work is referred to him.’

In terms of this, an advertisement for a conveyancer’s services that is placed in an estate agent’s flyer showing new houses for purchase clearly falls within the ambit of the above provision and, accordingly, will constitute touting. Whether or not the advertisement is truthful and whether or not it misleads the public is irrelevant and therefore the position of the Competition Commission and the LSSA would not assist in this regard.

Reputation

Accordingly, even though some token restrictions may have been lifted, touting still poses a real threat to practitioners. I submit that an attorney’s major asset that defines his earning power is his reputation.

With increasing competition in the legal profession, simply having satisfied clients might not be enough and advertising may become essential in setting firms or individual practitioners apart.

In my view, this is virtually impossible due to the regulations put in place by the law societies and until the rules are amended or disposed of, practitioners are open to potential disciplinary proceedings resulting from touting for anything they do in respect of advertising.

In my opinion, the rules have forced attorneys into a position where it seems as though they are balancing on the edge of a razor blade and one wrong move is all it will take for a practitioner to fall.

Advertising training

Perhaps it is time that candidate attorneys be required to undergo a training course on marketing matters, which would cover the regulations to be adhered to and set out clearly what would constitute touting.

Perhaps it is time to insist that all practitioners are given at least rudimentary training on how to market effectively. Short courses offered by the Legal Education and Development division of the LSSA on advertising would certainly reduce the number of negative incidents that occur. Attendees at these courses could be addressed by not only members of disciplinary committees but also experts in the marketing field.

Further, training on advertising should also include considerations on how to attract clients to a firm using modern advertising techniques and an explanation of the Financial Intelligence Centre Act 38 of 2001 (FICA) requirements around enticing clients, as the two are, in my opinion, inextricably linked. This will ensure that all candidate attorneys, and some attorneys, are made aware of the basic administration relating to drawing clients into a firm and may help to reduce potential complaints as a result of non-compliance with FICA requirements.

Such pre-emptive action will in all likelihood result in fewer disciplinary cases relating to touting. Further, it will also assist candidate attorneys in learning how to bring clients into firms and, accordingly, will prepare them for the reality of working in the legal profession.

Conclusion

Practitioners need to learn to advertise effectively, as all the hard work in the world might not be sufficient if the right people do not know that the hard work is being done by a specific practitioner or firm.

More importantly, practitioners should learn to advertise the right way from the start, to avoid disciplinary proceedings in this regard.

Edrick Roux LLB (UP) is a dispute resolution specialist at the National Employers’ Association of South Africa in Pretoria. He was a candidate attorney at MacRobert Inc in Pretoria at the time of writing this article.

This article was first published in De Rebus in 2013 (March) DR 51.