Motivos de estímulo

Nature of restraint

5.239 Advertising by barristers is strictly limited to placing their names and specialisations on the Bar Council’s website and in the Law Society’s Law Directory.249

Effects of restraint

5.240 The restrictions reduce the information available to buyers of legal services and insulate already well-known barristers from competition from alternative barristers who may be less well-known or experienced but of comparable ability. Consequently, advertising restrictions can result in fees for professional services being higher than would otherwise be the case as they dampen competitive pressure.

5.241 Advertising restrictions further unbalance the playing field for newly-qualified barristers who have few or no contacts in the solicitors’ profession. Barristers, especially those who are recently qualified, need to make these connections. Barristers who have established such contacts have a ready-made source of business. A master250_{is expected to help a new barrister by introducing him or her to solicitors. On the other hand, if this}

does not occur, or if for any other reason a new barrister is not making sufficient solicitor contacts, a barrister is constrained from taking effective steps to remedy the situation. In particular the barrister is unable to advertise the fact that he/she has commenced practice. The advertising restrictions affect the ability of newly qualified barristers to become established and may contribute to the relatively high drop out rate among newly qualified barristers.251

5.242 Currently, in most instances, only solicitors are permitted to engage barristers (although limited exceptions to this apply in non-contentious matters). If greater direct access to barristers is permitted, as recommended in this report, advertising will become all the more important because lay clients would be less well-informed buyers than the current buyers, who are solicitors. Advertising restrictions would prevent potential clients, particularly non-solicitor clients, from obtaining the quality of information needed to choose the barrister best suited to their particular needs.

Rationale offered for restraint

5.243 The Bar Council says that the rule’s objectives are the protection of the public interest, the maintenance of proper professional standards and the prevention of interference with the administration of justice. 5.244 The Bar Council submits that advertising might degenerate into touting for business, or might result in

misrepresentation. The Bar Council says that a barrister might, for example, advertise that he/she has had success in a particular case, when in fact the success had nothing to do with that barrister’s expertise or ability. The Council also says that if more advertising is permitted, greater pressure will be put on barristers to become more outrageous in the claims they make with regard to their capabilities. It questions in what way a barrister could usefully advertise, other than identifying specialty areas of law, and it points out that barristers can do that at present on the Bar Council’s website.

International Experience

5.245 In England and Wales, and also Northern Ireland and Scotland, barristers (“advocates” in Scotland) are permitted to advertise. The rules in all three jurisdictions in relation to advertising are almost identical. For example, the Code of Conduct of the Bar of England and Wales states the following:

“710.1 Subject to paragraph 710.2 a barrister may engage in any advertising or promotion in connection with his practice which conforms to the British Codes of Advertising and Sales Promotion and such advertising or promotion may include:

(a)photographs or other illustrations of the barrister;

(b) statements of rates and methods of charging;

(c) statements about the nature and extent of the barrister’s services;

(d)information about any case in which the barrister has appeared (including the name of any client for whom the barrister acted) where such information has already become publicly available or,

where it has not already become publicly available, with the express prior written consent of the lay client.

710.2Advertising or promotion must not:

(a)be inaccurate or likely to mislead;

(b)be likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute;

(c)make direct comparisons in terms of quality with or criticisms of other identifiable persons (whether they be barristers or members of any other profession);

(d) include statements about the barrister’s success rate;

(e)indicate or imply any willingness to accept instructions or any intention to restrict the persons from whom instructions may be accepted otherwise than in accordance with this Code;

253 http://www.qldbar.asn.au/Barristers_Rule_2004__amended_10_July_2005_.pdfpp25, 26. 254 http://www.ftc.gov/os/2003/07/polygramopinion.pdf

255 See p38, http://www.ftc.gov/os/2003/07/polygramopinion.pdf

256 Bond, Ronald S., et al, Staff Report on Effects of Restrictions on Advertising and Commercial Practice in the Professions: The Case of Optometry, Federal Trade Commission Bureau of Economics, September 1980.

257 See Love, James H. and Frank H. Stephen, Advertising, Price and Quality in Self-regulating Professions: A Survey, International Journal of the Economics of Business, Vol. 3, 1996.

258 Schroeter J.R, Smith S., Cox S.R, Advertising and Competition in Routine Legal Services Markets: An Empirical Investigation, Journal of Industrial Economics, Vol 36 (1), 1987, pp.49-60.

259 Muris, T.J, and McChesney F.S, Advertising and the Price of Legal Services: The Case for Legal Clinics, American Bar Foundation Research Journal, 1979, pp 179-207.

260 Advertising would assume even greater importance to consumers if there was wider direct access, as recommended earlier in this chapter. 5.246 Barristers in Queensland are permitted to advertise. Unlike in England and Wales, Scotland and Northern

Ireland, the barristers’ rules do not say what may be included in an advertisement only that which is prohibited. Advertisements must not be:

(a)“False, misleading or deceptive;

(b) In contravention of any legislation;

(c)Vulgar, sensational, or otherwise such as would bring or be likely to bring a court, the barrister, another barrister or the legal profession into disrepute.”253