Advertisement In The Legal Profession; Latitudes And Prohibitions In The RPC

By Kenneth Chibueze M

Introduction

Central to order and stability in every social system is a set of prescriptive codes – implicit or explicit. Social disorder occurs when a social element acts in a way that is perilous to either other parts of the system or the whole system in itself. To put it into perspective, in Nigeria, the legal profession has as one of its objectives – the protection of its status and to that end, the legal profession has employed the mechanism of explicit rules that regulate the conduct of its members, ultimately ensuring that they do not act in a way that is inimical to the legal profession per se. These rules copiously exist in the Rules of Professional Conduct 2007 (to be subsequently referred to as RPC 2007). Amongst these rules is one that regulates the commercial aspect of the profession, namely, advertisement of the lawyer’s trade. In Nigeria it is largely believed that advertisements are totally prohibited by the RPC 2007. In what follows explications shall be made as to whether Nigerian laws prohibit, in totality, lawyers from advertising their trade.

To be reiterated is the fact that the legal profession has very visible markings of prestige and it has a working mechanism primed to maintain this prestige. It encompasses of penal codes in the RPC 2007, these codes are enforced by bodies like the Legal Practitioners Disciplinary Committee (LPDC). They constitute the penal structure of the profession, ultimately guarding against infamous conduct, described in OKIKE v LPDC (2005) 15 NWLR (Pt.949) Pg. 471 at 591, “to be in any professional respect, an act or omission, which in the opinion of the disciplinary committee is such that will bring the profession into disrepute”.

In terms of infamous conduct, advertisement persists as the fulcrum of a controversy bedeviling the legal profession. Diverse opinions are existent as to whether a lawyer can advance the cause of his trade through advertisement. However a perusal of rule 39 of the RPC reveals the true position of the law on the issue. It goes thus:

Subject to paragraphs (2) and (3) of this rule a lawyer may engage in advertising or promotion in connection with his practice of law, provided that it—-
is fair and proper in all circumstances; and
complies with the provisions of these rules
It therefore becomes visible that, contrary to popular belief, a lawyer can advertise his trade, albeit, in line with part (a) and (b) of paragraph (1) of the RPC 2007 and subject to paragraph (2) and (3) of the RPC 2007. In paragraphs (2) and (3) of the RPC 2007, the law further provides for instances when an advertisement shall constitute improper conduct in provisos outlined in paragraphs (2) and (3) of rule 39 of the RPC 2007. It goes as follows:

A lawyer shall not engage or be involved in any advertising or promotion of his practice of the law which —–
is inaccurate or likely to mislead;
is likely to diminish public confidence in the legal profession, or the administration of justice, or otherwise bring the legal profession into disrepute;
makes comparison with or criticizes other lawyers or professions or professionals
includes any statement about the quality of the lawyer’s work, the size or success of his practice or his success rate; or
is so frequent or obstructive as to cause annoyance to those to whom it is directed
Hence, it becomes visible, that whereas paragraph (1) of the RPC 2007 leaves a lawyer with the latitude to advertise, paragraph (2) of the RPC 2007 stipulates that such advertisement must not be of misleading or inaccurate import, have demeaning effect on or scuttle the image of the profession, juxtapose oneself with other lawyers or professionals on the scale of comparison, indicate an appraisal of his success or constitute nuisance to his target audience. paragraph (2) (d) of the RPC 2007 played out in the case of LPDC v FAWHEHINMI (1985) 2 NWLR (PT. 7) 300 where Chief Gani Fawehinmi described himself as “the famous reputable and controversial Nigerian lawyer…” in so doing, he had gone contrary to the provisions of rule 33 of the RPC 1979, which provisions are similar to the provisions of part (d) of the paragraph under consideration. In essence, paragraph (2) of the RPC 2007 holistically provides that the advertisement of a lawyer ought not to be of such nature that may spell adverse effects for his colleagues, his clients, the legal profession and the society at large.

Furthermore, paragraph (3) of the RPC 2007 also restricts the latitude a lawyer has to advertise, by prohibiting him from soliciting for professional employment either directly or indirectly by:

circulars, handbills, advertisement, through touts or by personal communication or interview;
furnishing, permitting or inspiring newspaper, radio or television comments in relation to his practice of law;
procuring his photograph to be published in connection with the matter in which he has been or is engaged, or concerning the manner of their conduct, the magnitude of their interest involved or the importance of the lawyers position
permitting or inspiring sound recording in relation to his practice of law; or
such similar self-aggrandizement
The operative word in paragraph (3) of the RPC 2007 is “solicit”. paragraph (3) of the RPC 2007 suggests that a lawyer ought not to solicit to be taken under the employ of any client in his professional capacity. For avoidance of doubt, Merriam Webster explicates the word “Solicit” in different ways such as “to urge strongly”, “to make petition to”, “to try to obtain by usually urgent requests or pleas”. The same dictionary also outlines its synonyms to include: “beg” “importune” “pray”. It then appears that central to all these explications is the fact of begging a target audience. By logical implication, it follows that any lawyer makes a lawful advertisement in all the circumstances listed in paragraph (3) of the RPC 2007, if in such advertisement, he does not appeal to or beg his audience to take him into their employ but merely brings it to their knowledge that he is a lawyer, even if he includes his area of practice.

Paragraph 4 of the RPC 2007 further provides thus:

“Nothing in this rule shall preclude a lawyer from publishing in a reputable law list or Law Directory, a brief biographical or informative data of himself, including all or any of the following matters —–

his name or names of his professional association;
his address, telephone number, telex number, e-mail address, etc. ;
the school, colleges, or other institutions attended with dates of graduation, degree and other educational or academic qualifications or distinctions ;
date and place of birth and admission to practice law ;
any public or quasi-public office, post of honour, legal authority, etc;
any legal teaching position ;
any national Honours ;
membership and office in the Bar Association and duties thereon ; and (i) any position held in legal scientific societies”
A holistic construction of rule 39 of the RPC 2007 shows that advertisements are allowed, however contingent on the conditions that they do not that they do not prove to be adverse to other lawyers, the legal profession, other professions or to the general public, and also provided that lawyers do not beg to have their services procured. But however, they are not barred from providing informative data about themselves or their services, provided that it does not run foul to the provisions in paragraphs (2) and (3) of the rule under consideration. Founded on the mischief rule of interpretation and the extant social advancements which features breakthroughs in science and technology, it may also be implied that the provisions of paragraph (3) of the RPC 2007 may also apply in circumstances where one advertises on social media.

Conclusion

The true position of the law in Nigeria, premised on the foregoing, as to the extent that a lawyer can go in advertising his trade is that any Nigerian lawyer who practices within the Nigerian jurisdiction may advertise his trade as a lawyer, provided that the form or content of such advertisement does not go contrary to the stipulations of rule 39 of the RPC 2007 which purports to protect the status of the legal profession while protecting the interest of the members of the legal profession, other professions and the general society.

About the writer:

Kenneth Chibueze M, is a brilliant part two (200 level) law student in University of Uyo, Nigeria. He is an award winning writer with a strong penchant for legal writing, drafting and research. He can be reached on Email via makuokenny18@gmail.com, on WhatsApp via 07018550463, on phone via 09078697524.