Legal Professions (Advertising) (Hansard, 29 July 1976)

§ Mr. John Fraser

They are being published today.

The supply of services of solicitors in relation to restrictions on advertising

The Commission found that, both in England and Wales and in Scotland, the restrictions provided, and the profession accepted, that—with some minor and limited exceptions—all forms of personal advertisement and publicity and of touting are forbidden to solicitors.

The Commission accordingly concluded that a monopoly situation as defined in Section 7(1)(c) and (2) of the Fair Trading Act 1973 existed in favour of solicitors in England and Wales, and also in Scotland, in that in each case the total supply of services of such solicitors was by persons who so conducted their respective affairs as to restrict competition in that they accepted restrictions on advertising.

The Commission concluded that these restrictions in England and Wales and in Scotland operated against the public interest in three respects:

(i) They prevented the public, and potential new entrants to the profession, being given information about the services offered by individual solicitors or firms of solicitors.
(ii) They were likely to have disadvantageous effects on the competitiveness and efficiency of the profession generally, on the introduction of innovatory methods and services and on the setting up of new practices.
(iii) They might in some degree enhance the importance of other less open and challengeable methods of attracting business and detract from public confidence in the profession.

In addition, the Commission concluded that in the case of England and Wales the restrictions had on occasion impeded the operation of law centres contrary to the public interest.

The Commission recommended that the current rules of the relevant professional bodies which placed a general prohibition on advertising and soliciting business should be terminated and should be replaced by a rule which would allow any 322W solicitor in England and Wales and in Scotland to use such publicity as he might think fit, provided that:

(i) No advertisement, circular or other form of publicity used by a solicitor should claim for his practice superiority in any respect over any or all other solicitors' practices;
(ii) such publicity should not contain any inaccuracies or misleading statements; and
(iii) while advertisements, circulars and other publicity might make clear the intention of the solicitor to seek custom, they should not be of a character that could reasonably be regarded as being likely to bring the profession into disrepute.

The Commission considered that, provided that the basic changes which it regarded as necessary were made in the present codes, there would be no need for modification of the existing arrangements operated by solicitors for formulation and enforcement of the codes of the profession on advertising, except that in the case of Scotland the Commission supported the proposals which the profession has made for lay representation on the Council of the Law Society's Discipline Committee and for a lay observer to whom appeals could be made.

The Commission recommended that the new rule on advertising should be formulated in precise terms through consultation between the Director General of Fair Trading and the professional bodies concerned.

The supply of services of (1) barristers in England and Wales, and (ii) advocates in Scotland, in relation to restrictions on advertising

The Commission found that, both in England and Wales and in Scotland the restrictions provided, and the professions accepted, that—with some minor and limited exceptions—all forms of personal advertisement and publicity and of touting are forbidden to banisters and advocates.

The Commission accordingly concluded that a monopoly situation as defined in Section 7(1)(c) and (2) of the Fair Trading Act 1973 existed in favour of barristers in England and Wales and advocates in Scotland in that in each case the total supply of services of such barristers and advocates was by persons 323W who so conducted their respective affairs as to restrict competition, in that they accepted restrictions on advertising.

However, the Commission concluded that these restrictions did not operate against the public interest in either case, for the following reasons:

(1) Lay clients were not suffering from a lack of useful information on the services offered by individual barristers or advocates. The present structure of the legal profession did not permit a lay client to approach a barrister or advocate except through a solicitor; and the Commission was satisfied that there was ample reliable information and advice available to any solicitor who might be uncertain of the appropriate counsel for a lay client and that the latter was therefore in a more favourable position than a layman requiring information on most other professional services.
(ii) They did not deter new entrants to these professions or make it more difficult for them to become established as practitioners.
(iii) They had little or no effect on the profession's efficiency, which depended very largely on the personal abilities of the individual barrister or advocate.
(iv) Their continuance was unlikely to enhance the importance of any other less direct, or covert, means of attracting business or to undermine public confidence in these professions.

For these reasons the Commission concluded that neither of these monopoly situations operated, or might be expected to operate, against the public interest.

The Commission, in the report on restrictions on advertising by barristers, noted that the Bar Council published information in the Law List, in legal journals, and in local newspapers where appropriate, when a new set of chambers was being opened, and it suggested that the Bar Council should consider taking similar action in respect of barristers who resumed practice.

Action on the Commission's reports

My right hon. Friend, in the light of the Commission's reports on restrictions on advertising by solicitors, agrees that 324W the current rules forbidding advertising by solicitors in England and Wales and in Scotland should be replaced by new rules allowing advertising subject to certain safeguards; and she agrees that this matter should be discussed by the Director General of Fair Trading and the Law Society and the Law Society of Scotland. My right hon. Friend is accordingly asking the Director General to initiate appropriate discussions about how the current rules might be changed without prejudice to the high standards of the profession and the proper and adequate administration of justice.

My right hon. Friend, in the light of comments made in the Commission's report on restrictions on advertising by barristers, is asking the Director General to initiate discussions with the Bar council on possible means of improving the dissemination of information on barristers to solicitors. She is also asking him to initiate similar discussions with the Faculty of Advocates.