I have never at any point in my life seriously engaged the services of a lawyer. That notwithstanding, I do admit that in my possession are over a thousand business cards of some of my lawyer friends. So I should not have any problem using the services of a solicitor- hopefully positively- in future years. The cards only remind me of Canon 27 of the American Bar Association (1908) which had placed a ban on all lawyer-advertising except the use of business cards.



Why are Nigerian lawyers not advertising? I understand that a twin-reason is the need to protect the consumer and to protect the public’s perception of the profession. The latter reminds me of a good friend who would not stop asking why “most" Nigerian lawyers speak bad English. Is it not amazing that English, which is the lawyer’s medium of communication, is seen by my friend as the solicitor’s albatross? The lawyer should simply be a master of the language. I have a lawyer-nephew who speaks and writes good English and I also know another who speaks good English but writes poorly. However, she is just fantastic compared to many people I know who went to school to study mass communication but speak the precious language in their native dialects.

There are others who would stop me and demand to know why lawyers should be involved in 419! What about the “charge-and-bail" lawyers, are they still around? What is your perception of the Nigerian lawyer? I know somebody’s child who would like to be a lawyer because he wants to be rich! What attracts you to a lawyer? Can we afford the “successful" lawyers? By preventing lawyers from advertising, are we not denying the consumer access to information that would enable him/her make a decision? How does the prevention help to enhance the public’s perception of the profession?

In the celebrated Bates vs. State Bar of Arizona case, 1977, the United States Supreme Court struck down blanket prohibitions against lawyer-advertising describing them as unconstitutional and infringements of an attorney’s First Amendment right to commercial speech. It then proceeded to cite Virginia Board of Pharmacy as a basis for its decision. A remarkable opinion of the Bates case stated that the individual States could not prevent lawyers from advertising the prices at which certain routine services were to be performed (Gbolahan Gbadamosi 2006).

The bates case has really set the pace for several other decisions which have since restricted the extent to which regulatory bars can regulate lawyer-advertising in the United States. However, I find one of the provisions of Zauderer vs. Office of Disciplinary Counsel 471 U.S.626 (1985) very interesting. It posits that state may not ban the use of undignified or distasteful illustrations used by lawyer in advertisement while also sending a strong signal to state regulators that the dignity and image of the legal profession alone may not climb to the level of “substantial state interest" to justify the restriction or prohibition of commercial speech (James McCauley 1996).

Confirming my amusement is Chief Justice Carrico, who in his address to the Professionalism Course Faculty in October 1996, remarked that simply because the First Amendment permits undignified or distasteful advertising does not mean that members of the legal profession should feel free to engage in such activity (J.M. McCauley).

Competition is supposed to be the bedrock of any democratic society as it promotes better service and affordable prices. There is a school of thought, which opines that competition may force a smaller law firm to provide better and more personal service so as to compete with a larger firm which spends more money on advertising or which offers lower fees (Philip Fanckel 1999). It goes further to state that since advertising encourages competition, the consumer will benefit in the long run.

But I submit that competition has its disadvantages and could as a matter of fact subject the image of the legal profession to rampart commercialism. Our lawyers are still not advertising yet their fees are mistrusted. A danger in lawyer-advertising therefore is selfish pursuit of economic success coupled with the temptation to regard the profession as a trade or occupation just like any other.

Trust America! Lawyers send written communications to accident victims despite knowing that the victim’s physical or mental state is such that the person cannot exercise reasonable judgement in engaging the services of a lawyer. American lawyers sponsor Television advertisements which employ actors portraying lawyers. How does that compare to a baby product TVC here in Nigeria where a baby judge (in full regalia) sentences his mum for not using the product?

I understand that lack of competition allows a lawyer to become lazy and avoid time-consuming tasks. But what comes to your mind when confronted by an American lawyer’s full page boastful ad which claims that he has won 54 jury trials in a row? Can you fault a lawyer-ad which states: “A Law Firm with proven Honesty, Fairness and Integrity."? How can the advertiser substantiate such a claim? These are examples of real advertisements placed by lawyer-advertisers!

Lawyers, to my mind, can advertise but not primarily with the intent of unduly enriching themselves. In these days of “fake lawyers" in “successful practice (until they are caught), I believe lawyer-advertising will protect the consumer. More so while novice lawyers are not financially capable of embarking on marketing communication campaigns, fake lawyers will be committing suicide by openly advertising their service even if they have won 1,000 cases in a row. America’s Supreme Court did open up advertising to lawyers, not so that they can advertise but because of the right of the public to have access to information.

According to Philip Franckel, President of 1-80-HURT-911, Inc. due to the cost of advertising, it is usually only lawyers with substantial experience in their field that will be willing to spend the money necessary for a sustained advertising campaign. Because advertising will likely result in the lawyer handling more cases in the field advertised, it is posited that it engenders specialization in that field. One advantage of lawyer-advertising is that while high income individuals will hardly see advertising as a source of getting a lawyer, people in the lower class who usually do not personally know a lawyer, will rely heavily on advertising on TV or in Yellow Pages or newspaper. More so, such advertisements usually guarantee expertise in the field being advertised.

I cannot think of anywhere in the world where lawyers are permitted to advertise unregulated. From experience in Nigeria’s marketing communication regulatory environment, lawyer-advertising may pose a lot of initial problems. There will certainly be questions of taste and hucksterism and misleading statements. Lawyers will assert claims and make comparisons which they cannot substantiate. Trust Nigerian lawyers to sell us the idea that the outcome in a particular matter will be the result of their ingenuity rather than the facts or merits of the case.

Our lawyers will come up with ad solicitations which contain a lot of false, misleading and grossly exaggerated statements concerning their background, experience and reputation. Our regulatory scene with many appointed and self-appointed actors will also not help the situation in the case of lawyer-advertising. I hope the Nigerian Legal Council will not also declare that the right to regulate lawyer-advertising resides exclusively in it. And who regulates their billboards in, Lagos for example- OAAN, Lagos State, FERMA or the Federal Government through APCON?

The problems not withstanding, I strongly recommend that our lawyers be allowed to advertise. However, they must exercise restraint in communicating false and misleading information while the appropriate regulatory bodies should ensure that the public is not made vulnerable to such misleading advertising and solicitation. Rather Lawyer-advertising should encourage and promote the public’s confidence in the legal system.

Lawyers should use advertising to provide useful information that can assist members of the public in understanding legal rights and choosing a lawyer. We cannot afford to resort to employing dramatic scenes, unseemly slogans, “hawkers," and other outrageous techniques so as to arrest the attention of the public. I believe that will not help the image of the legal profession in the long run. Considering the low rating of our judicial system, it is only proper that advertising is engaged to shore up its image.

There is no reason for lawyers to continue to be passive and helpless while their public image dwindles. Through advertising, they can improve their image by convincing members of the public that they are sincerely striving to protect and serve the public rather than enriching themselves. Regulatory bodies should object to misleading fee information in advertisements as well as unsubstantiated comparisons with other lawyers’ services.

Claims like “the best lawyers" or the “biggest earnings" need to be discouraged. In addition, endorsements by celebrities or public figures who are not the advertiser’s clients and which do not include a disclaimer that the speaker is not a client of the advertising law firm should not be allowed to pass. The ad should also disclose whether the speaker is being remunerated for the endorsement. By extension, a client may not be portrayed by an actor without a disclaimer that the depiction is a dramatization (J. McCauley). If lawyer-advertisements employ actors portraying lawyers, such ads should be made to disclose that the actors are not employees or members of the law firms. Also if they must be permitted to advertise in telephone directories, the use of fictitious or trade names should be disallowed. However, they can be allowed provided there is evidence that the lawyers or law firms actually practice under such names. Specific case results may not also be advertised, e.g. verdict sizes.

What if our lawyers decide to use a lot of flyers, brochures and targeted solicitation letters? I used to receive such from many law firms on behalf of my organization until it employed a full lawyer lately. How can the regulatory bodies adequately monitor such forms of advertising? Also lawyer-advertisements cannot suggest that the lawyer is affiliated to a government agency or that the lawyer’s firm is an extension of government’s office.

Lawyers who cannot afford to advertise should not feel terrible after all they can still compete as they usually have a lot to offer prospective clients. They will also be surprised that they can easily compete in areas where the big law firms ordinarily cannot. Nothing stops them from actually offering many services with a more personal touch. I still feel more comfortable knowing the individual I am hiring as opposed to which law firm I am likely to hire. I know somebody, for example, who would not like to be represented by a large law office because, apart from the cost, he is scared that he will not just get the personal service he wants.

A well-regulated lawyer-advertising should serve the Nigerian public well and contribute positively to Nigeria’s marketing communication industry.