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15 April 2014
Advertising is a phenomenon which came late to the legal profession and although embraced by some, it is still widely treated with suspicion.
The profession's rumour mill circulates stories of Californian lawyers advertising two divorces for the price of one, or of a TV commercial in the US which featured both a lawyer and his female receptionist emerging from beneath the water of a swimming pool, determined to prove lawyers are not stuffy. At least not in that state.
In Europe, things have not gone as far. However, the continent's legal professions adopt very different attitudes to advertising and the subject arouses strong feelings throughout.
The Common Code of Conduct issued by the Council of Bars and Law Societies of the European Union (CCBE), contains in article 2.6 the somewhat circular statement: "A lawyer shall not advertise or seek personal publicity where this is not permitted."
But the article does clear up one possible point of doubt over multi-national advertising, ruling that advertising is permitted if it is placed for the purpose of reaching clients or potential clients where such advertising is permitted, even if it is also incidentally communicated in another country where advertising is not normally allowed.
In the world of cross-border legal practice, where lawyers are practising in a country which is not their own, which rules apply?
Normally, it will be the rules of the host country that come into force because this is the approach adopted by the Services Directive (77/249/EEC) and by a draft directive on rights of establishment, although the latter has still not been settled.
However, a law firm may also be subject to the rules of its home country, posing a possible clash of duties. But they will be referred back to the rules of individual member states, since there is no consensus on advertising within Europe.
Broadly speaking, there is a division between the northern countries of Europe, which have a relaxed attitude to advertising, and those in the south, where the position is more strict.
It may be no accident that this division broadly corresponds with a similar divide between countries which play host to a lot of large law firms which see themselves very much as businesses, and countries where legal practice is typically more of an individual affair.
For a long time, the UK maintained a rule against all forms of legal touting, let alone advertising, but current rules set out in the amended Solicitors' Publicity Code 1990 are relatively permissive.
These are only intended to outlaw advertising which is considered to be in bad taste, inaccurate or misleading or is deemed objectionable in some other way.
A similar situation exists in the Netherlands under the Dutch Rules of Conduct 1992; in Sweden, where the Bar Association is content to rely on the general law governing advertising; and in Germany, where the previous ban under the guidelines of the Federal Chamber of Lawyers was struck out by the Constitutional Court in 1987 as an infringement of the constitutional right to carry on a profession.
A contrasting situation exists in France and Italy, where in principle no advertising is allowed. In Spain, where the rules are largely in the hands of the local Bars, advertising is similarly restricted, while in the strict Belgian legislation even issuing a brochure or holding a seminar or reception requires the consent of the Batonnier.
However, the liberalisation in northern Europe is by and large a recent affair and it seems likely that pressures will grow for similar liberalisation in the southern countries.
It is understandable that many European lawyers are suspicious of a development which is contrary to the traditions of the profession and which can only add to the overheads of practice without any clear benefit to lawyers.
But competition could force many to come to terms with the issue as the advertisements of international law firms encroach into less liberal countries in the "incidental" manner referred to by the CCBE's code, and as accountancy firms whose advertisements also attract clients for legal work, step up their campaigns.
In the highly competitive world of international business law, where the potential client is more sophisticated, a degree of advertising is probably inevitable. But it is rather unlikely that lawyers could ever be marketed in quite the same way as a soap powder.
As long as the content of legal advertising remains subject to strict ethical standards, it need not be objectionable and it may even prove to be necessary to confront the competition from outside the profession as well as within.