Legal Ethics

Truth In Advertising

I expect that “honest” would not be the first word that comes to mind as a general description of the business culture in Canada, or anywhere else for that matter. The idea of “buyer beware” (or “caveat emptor” as we lawyers like to say) is well ingrained in our business culture, and we all expect businesses to create “spin” when they market their goods and services.

On the other hand, one would expect that lawyers should be held to a higher standard than other businesspeople are held to, and that is in fact the case.

For example, the Rules of Professional Conduct of the Law Society of Ontario state that:

 “A lawyer has a duty to carry on the practice of law and discharge all responsibilities to clients, tribunals, the public and other members of the profession honourably and with integrity.”

The commentary to this rule states: “Integrity is the fundamental quality of any person who seeks to practise as a member of the legal profession. If a client has any doubt about their lawyer’s trustworthiness, the essential element in the true lawyer-client relationship will be missing. If integrity is lacking, the lawyer’s usefulness to the client and reputation within the profession will be destroyed, regardless of how competent the lawyer may be.”

For the most part, I think that lawyers do their best to comply with this rule in their dealings with their clients and with each other.

On the other hand, I often wonder whether lawyers are just as bad as everyone else when it comes to marketing their services.

Back when I started practicing in the early 1980s, “bullshit baffles brains” was a common expression among lawyers. We used that saying when opposing counsel threw nonsense at us hoping that we would buy into whatever they were selling.

I have not heard that expression much recently, but a few things that I read recently have led me to believe that bullshit is still alive and well in the legal profession, and that it extends pretty much from cradle to grave.

Let’s start with the cradle, being announcements of a new lawyer joining a firm. Using the totally non-scientific methodology of searching law firm websites looking for pictures of lawyers who look young and checking their date of qualification, I checked out the biographies for some lawyers called to the Bar in 2020 and 2021. Some of their qualifications and experience were quite impressive considering that they were so new to the game, and included the following:

“Represents domestic and international clients in connection with a wide range of corporate, commercial, and regulatory matters, including mergers and acquisitions and private equity.”

“Handles banking and finance, and corporate reorganizations and restructurings.”

“Has experience with contractual matters, shareholders agreements, regulatory matters, and multi-jurisdictional transactions.”

“Practice spans a wide variety of corporate and securities law matters and enjoys the challenge of developing practical solutions for issues arising during complex transactions.”

“Provides advice on mergers and acquisitions, securities law, corporate finance, private equity, venture capital, limited partner advisory committees, start-ups, emerging companies and markets.”

“Focuses on advising clients on a variety of capital markets transactions, including financings, public offerings and private placements, as well as mergers and acquisitions.”

Really? In their first and second year of practice? They must all be a hell of a lot smarter than I was when I started out, and I imagine that must be the explanation for at least some of them. Or, and I am just spit-balling here, is it a case of bullshit baffles brains?

Now, in the spirit of openness and fairness, I did find one firm (Loopstra Nixon LLP) whose description of the practice of a new lawyer qualified in 2021 said: “She is an associate in the firm’s Bankruptcy and Insolvency Group, where she is developing her practice advising clients on a broad range of issues.”  How is that for a refreshing breeze of honesty? It makes me want to trust that firm.

At the other end of the spectrum, I read an obituary for a lawyer who I knew quite well on his prior law firm’s website. He was a wonderful family man, but not a particularly good lawyer. However, according to his obituary, he was recognized as a senior statesman of the profession (not true) and he excelled in all areas of law (really not true) and made profound contributions to one particular area of law (really, really, not true, unless you consider potential negligence claims to be profound.)

I have concluded that with bullshit so prevalent across the profession and the business world, clients can be forgiven for not believing anyone. However, not believing everything that the seller of a washing machine says may result in me buying a not great laundry appliance. Doubting that lawyers are giving you the whole truth chips away at the integrity of our entire legal system.

“Buyer beware!” has never been more important than it is now in our modern information age, which is ironic since greater access to information was supposed to make things better, and of course it did not. It just made it easier to spread disinformation. When it comes to our legal system, disinformation spreading distrust of lawyers can really cause harm.

It may seem like a small thing, but I think that lawyers really should get serious about truth in advertising.

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