THE EMERGENCE OF LAW FIRMS WEBSITES: DO WE HAVE ANY RULES ON ADVERTISEMENT?

BEING TEXT OF A LECTURE DELIVERED AT THE N.B.A. ICLE WORKSHOP ON
ETHICS. RULES OF CONDUCT AND DISCIPLINE OF LAWYERS AT THE NBA IKEJA
BAR CENTER IKEJA HIGH COURT ON FRIDAY THE 30™ OF OCTOBER 2009
BY ADEYINKA OLUMIDE-FUSIKA LLB (HONS) (IFE); B.L; M.A (PHIL) (LAGOS)
MANAGING PARTNER, CITIPOINT (LEGAL PRACTITIONERS)

INTRODUCTION:

I am here to lead the discussion, this being a workshop, on the sub-topic 'The Emergence of Law Firms Websites: Do we have any rules on advertisement?" Inadvertently, for I do not think this was what the facilitators of this workshop intended, this sub-topic actually raises two questions in one. The first raises the question of the propriety or otherwise of law firms' websites, and the second raises the question whether we have any rule on advertisement. However, and I believe this to be the sense in which the facilitators of this workshop intended this sub-topic to be treated, the two questions can be conflated into one, and that is: "How applicable or sufficient to law firms' websites are the existing rules of professional conduct regulating advertisement?"

WHAT IS ADVERTISEMENT?

Simply put, "advertising" is a public promotion of some product or service. Wikipedia, the free encyclopedia, defines it "a form of communication used to influence individuals to purchase products or services or support political candidates or ideas. Frequently it communicates a message that includes the name of the product or service and how that product or service could potentially benefit the consumer. Advertising often attempts to persuade potential customers to purchase or to consume a particular brand of product or service." It went further to state that "Advertising can be displayed on billboards, newspapers, T.V., websites (my emphasis) movies, and more".

From the above definition, we see that "advertisement" is a form of communication aimed at making known a product or service and to influence the recipients of the information conveyed to purchase the product or patronize the service; and that a "website" is just one, out of many communication media. When therefore used in relation to "advertisement", a "website" is like what a "billboard77 or a "newspaper or 'TV or "Radio" etceteras is in "advertisement"

WHAT THEN IS A WEBSITE?

The above is not a definition of "website". What I have simply done is to connect it with "advertisement", which is really what is of ethical interest or concern, in professional respect, to us. So what is a website? It is a set of interconnected webpages, usually including a homepage, generally located on the same server, and prepared and maintained as a collection of information by a person, group or organization. If it will help your understanding for me to put it graphically, imagine a book. We are all familiar with what a book is. If you call something a book, that means it has certain characteristics which you will find with other books. For instance, a book will have a front cover and a back cover and pages in between bound together into a single unit. Some books are blank (exercise books, for instance). Some contain only texts, some only pictures or illustration, and some both texts and pictures. Some come only in black and white, and others in other varieties of color. Some contain diary entries, some tell fictional stories, some contain scientific texts. I can go on and on, but the point is: it is not the textual content that makes a thing a book, it is the form in which it comes.


Now consider a web site to be something like a book. The difference is that, unlike a book, it has no physical presence, you cannot hold it in your hand. It is virtual, in that it is a collection of information on a computer server. But, like a book, it is used to record, store, preserve and communicate information. It has a cover page (called a homepage), an end page and many other pages (called web pages) in between. And it has the advantage of being simultaneously accessible to many people in different countries across all the continents of the world at any time they chose to visit the site hosting the information on the world wide web.

The world wide web is a recent creation in telecommunication. Before the year 1990, it did not feature in popular means of telecommunication. It was in fact only on or about the 30th day of April 1993 that it became free for use by everyone. The world wide web, is, according to Wikipedia:

... a system of interlinked hypertext documents accessed via the Internet. With a web browser, one can view Web pages that may contain text, images, videos, and other multimedia and navigate between them using hyperlinks. Using concepts from earlier hypertext systems, English physicist Tim Bemers-Lee, now the Director of the World Wide Web Consortium, wrote a proposal in March 1989 for what would eventually become the World Wide Web. He was later joined by Belgian computer scientist Robert Cailliau while both were working at CERN in Geneva, Switzerland. In 1990, they proposed using "HyperText [...] to link and access information of various kinds as a web of nodes in which the user can browse at will", and released that web in December.

Connected by the existing Internet, other websites were created, around the world, adding international standards for domain names and the HTML. Since then, Berners-Lee has played an active role in guiding the development of Web standards (such as the markup languages in which Web pages are composed), and in recent years has advocated his vision of a Semantic Web. The World Wide Web enabled the spread of information over the Internet through an easy-to-use and flexible format. It thus played an important role in popularizing use of the Internet. Although the two terms are sometimes conflated in popular use. World Wide Web is not synonymous with Internet The Web is an application built on top of the Internet

In case you don't understand the above definition, you do of course know what a computer is. If so, the world wide web is the means by which computers are able to communicate with one another, so that the information on one computer server in one corner of the world can be accessed from any other computer in other corners of the world.

WEB SITE AND ADVERTISING - WHAT IS THE CONNECTION?

We have defined what "advertising" is, and what "web site" is. What then is the connection between the two? One of the uses of "web site" as an internet tool is marketing. Internet marketing is using the Internet to do one or more of the following:

(a) communicating message about yourself, your product, or your services;
(b) conduct research as to the nature (demographics, preferences, and need) of your existing and potential customers;
(c) sell your goods, services, or advertising space over the Internet.

A law firm web site is therefore a potent tool of advertisement because through it, the firm communicates information about itself and services to the world at large, which is the same as advertising.

Now, it is because of its relatively recent origin of this scientific and technological breakthrough that the question becomes relevant whether our rules of professional ethics relating to advertisement, which is almost as old as the profession itself, is sufficient for regulating our use of the new technology in the practice of the profession.

I intend in the course of this presentation to look at the origin and rationale of the rule governing advertisement in the legal profession. But suffice to say at this stage in relation to the concept of 'book' which I've used in trying to explain the concept of "web site” that whilst lawyers have authored many books, you will not find any book written by a lawyer anywhere in the world advertising the services of the lawyer or soliciting the patronage of the general public. That would invite instant disbarment in all functional jurisdictions, albeit not in dysfunctional ones with broken-down and ineffective or failed institutions. So if you can't do such a thing in a book form, can you escape doing so in the guise of a web-site?

WHY THE AVERSION TO ADVERTISEMENT IN THE LAW PROFESSION?

From what I have said so far, we have seen that advertisement is a means of popularizing and increasing the patronage of a product or service. Lawyers offer legal services. So if law is a service, it is a proper subject of advertisement. However, as we all know, law is a regulated profession, and everyone admitted into it is by the simple fact of his or her admission deemed to have contracted to be bound by the rules prescribing limits of conduct for all belonging in it. Perhaps, this explain why any challenge to the rules, say against advertisement, on the basis of Sections 39 and 42 of the Constitution of the Federal Republic of Nigeria, 1999 may be unavailing notwithstanding that the prohibition or restriction against advertisement may be potentially in conflict with these constitutional stipulations guaranteeing to every citizen (including lawyers) the freedom of expression and the press and from discrimination.

Traditionally, the legal profession, like the medical profession, has always prohibited advertisement, since it is a form of solicitation deemed contrary to the best interest of society. What is this "best interest of society'? There is no better way to answer this question and to put the ethical consideration informing this traditional aversion to advertisement than it was explained in the 1975 Code of Professional Responsibility of the American Bar Association which was to the effect that:

The traditional ban against advertising by lawyers, which is subject to certain limited exceptions, is rooted in the public interests. Competitive advertising would encourage extravagant, artful, self-laudatory brashness in seeking business and thus could mislead the layman. Furthermore, it would inevitably produce unrealistic expectations in particular cases and bring about distrust of the law and lawyers. Thus the public confidence in our legal system would be impaired by such advertisements of professional services... History has demonstrated that public confidence in the legal system is best preserved by strict, self-imposed controls over, rather than unlimited, advertising.

Modern societies are ordered by law. Therefore the essential role of practitioners of the law is ensuring orderly perpetuation of the society by minimizing conflict and getting those that arise resolved in an orderly and effective manner. It is not in society's interest to promote conflict. And it was traditionally thought that allowing unbridled advertisement of legal services will only breed a litigious and quarrelsome population. The expression, 'ambulance chaser' is apt in denoting this impression of self-advertisement. An accident occurs. A citizen has been injured. An ambulance has been called to take the citizen to the hospital for medical attention. A lawyer happens to be passing by, and although no one has sought his attention in the matter, he immediately goes around the scene handing out his complementary card and making it known by all around that he is a lawyer and that what has happened was a disaster which must not only be compensated but through his own service. He doesn't end there; he sees the ambulance conveying the victim away and he runs after it to solicit a brief. If lawyering were a trade, there would be nothing wrong with this. But lawyering is not a trade, but a profession; the service of a lawyer is not an article of trade, and the arena of conflict management is not a market place for buying and selling. It was with this tradition in mid that Rule 47(1) stipulates that "A lawyer shall not forment strife or instigate litigation and, except in the case of close relations or of trust, he shall not without being consulted proffer advice or bring a law suit" and Rule 47(2)(b) stipulate that "A lawyer shall not" "seek out claimants in respect of personal injuries or any other cause of action with a view to being employed by the prospective client"

Lawyers are not competitors in the sense that "Coke" and "Pepsi" are competitors in the market place for "colas'. Rather, lawyers are "colleagues" and "learned friends". Otherwise, there would be no reason why a lawyer would not be entitled to engage in any manner of underhand stratagem to attract business to himself and divert it from others by artful self adulation.


WHAT IS THE CURRENT STATE OF THE RULE AGAINST ADVERTISEMENT IN
NIGERIA?

The aim of the rule against advertisement is, in a nutshell, to discourage and punish improper attraction of legal business. J. Olakunle Orojo, in his book "Professional Conduct of Legal Practitioners in Nigeria" identified acts which would constitute improper attraction of business as including "all those acts which tend to give an unfair advantage in obtaining legal business" and which "lower the prestige of the profession and, therefore, amount to unprofessional conduct".

As I have already pointed out, these rules predated the origin of the internet, of which what we call 'website' is like a by-product. But our current rules of professional conduct is the 2007 Rules, which came after the internet had already become a phenomenon. It cannot therefore be suggested that the rules were not intended to encompass law firms web site. In any event, as I have already explained, advertisement is one thing, the means (whether by newspaper, billboard, radio, T.V. or website) of mass-communicating it to the recipient is another thing. In so far as there is no specific rule separately regulating professional advertisement on any of the other means of mass communication, there can be no reason to believe that the current rule against advertisement is of restricted application to specific means of communication. The rule is of general application, and it applies to all the means of mass-communicating ideas. If you cannot do certain thing as a professional using a book, a billboard, or a radio, or a T.V. or any other similar means of communication, you cannot also do that thing using the web site of your firm.

It is now left for us to look at the current state of the rules, which as we shall, reflect many years of watering down from the era of complete prohibition to the current era which is tending towards a more liberal approach.

Rule 39(1) of the 2007 Rules provides generally that:
Subject to paragraphs (2) and (3) of this rule, a lawyer may engage in any advertising or promotion in connection with his practice of the law, provided:
(a) it is fair and proper in all circumstances
(b) it complies with the provisions of these rules; and
(c) it is for the purpose of reaching clients or potential clients located where such advertising or promotion is permitted, and its communication elsewhere is incidental

Clearly, from the above provision, although it doth appear that many lawyers are not yet conscious of it, the age-long prohibition of advertisement has been removed. Every lawyer is by this rule now permitted to advertise his services, whether on television or on radio or in newspaper or on his or her website. It is the content, the purpose and the extent of the advertisement that determines whether it is proper or amount to unprofessional conduct. Whatever the medium of advertisement, the content must be "fair and proper", not offensive against other provisions of the rules, and limited in circulation to where the potential clients of the lawyer-advertiser is located.

It is in this last bit (sub-clause (c) of Rule 39(1)) that we may meet with some difficulty vis-a-vis law the web sites of law firms. For instance, whilst my law firm is in Nigeria, I have clients from outside Nigeria. In fact most modern law firms are cross-border in their clientele. This is where a web site is particularly useful. The location of web site is virtual and not territorial. It is this that makes it possible for an Australian businessman, for instance, looking to do some business in Nigeria for which he would require legal services, to simply go on the web and search out a Nigerian law firm to patronize. Unless you have cross-border qualification to practice law in both Nigeria and Australia, you certainly would not be entitled to go into Australia to advertise your services in that country. Doing so would have offended against Rule 39(l)(c), but that is precisely what a web site allows you to do without risking accusations of infracting the rule.

Rule 39(l)(a) talks of permission of advertisement that is "fair and proper in all circumstances". Whilst the rules did not define "fair" and "proper". Sub-rules (2) and (3) of Rule 39 give a fair idea of the sense in which these words were intended to be understood.

Sub-rule (2) of Rule 39 stipulates that:

A lawyer shall not engage or be involved in any advertising or promotion of his practice of law which:
(a) is inaccurate or likely to mislead;
(b) is likely to diminish public confidence in the legal profession, or the administration of justice, or otherwise bring the legal profession into disrepute;
(c) makes comparison with or criticizes other lawyers or other professions;
(d) includes statement about the quality of the lawyer's work, the size of the success of his practice or his success rate;
(e) is so frequent or obtrusive as to cause annoyance to those to whom it is directed.

Sub-rule (3) of Rule 39 went on further to stipulate that a lawyer shall not solicit professional employment either directly or indirectly in any of the following ways:

(a) by circular, handbills, advertisement, through touts or by personal communication or interview;
(b) by furnishing, permitting or inspiring newspaper, radio or television comments in relation to his practice of law;
(c) by procuring his photograph to be published in connection with matters in which he has been or is engaged, or concerning the manner of their conduct, the magnitude of the interest involved or the importance of the lawyer's position;
(d) by permitting or inspiring sound recordings in relation to his practice of law; or
(e) by such similar self-aggrandizement

Sub-rules (2) and (3) of Rule 39 tells us the kind of advertisement we cannot engage in, no matter the medium of communication we are using, that is notwithstanding, for instance, that the medium is a web site; but for us to know the kind of advertisement we may engage in, we will have to take a cue from sub-rule 4 of the same Rule 39 as well as all the other rules dealing with advertisement, including rules 40, 41, 42, 43, 44, 45, and 46. For instance Rule 39(4) stipulates that:

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:
(a) his name or name of his professional association
(b) his address, telephone number, telex number, email address etc.,
(c) the schools, colleges or other institutions attended with dates of graduation, degree and other
educational or academic qualifications or distinctions;
(d) date and place of birth and admission to practice law;
(e) any public or quasi-public office, post of honour, legal authorship, etc;
(f) any legal teaching positions;
(g) any National Honours;
(h) membership and office in the Bar Association and duties thereon; and
(i) any position held in legal or scientific societies.

When you look at all the paragraphs of the rules touching directly on advertisements, you will see that it specifically mentioned some means or mode of advertisement. These include law list and law directories (Rule 39(4)); note papers, envelopes and visiting cards (Rule 40); signage or name plate (Rule 41); book (Rule 42); newspaper advertisement (Rule 43); solicitous circulars within professional circle (Rule 44); authorship of newspaper articles and participation in radio or newspaper programs (Rule 46). Nowhere in the rules was any specific reference made to web site. Does this then mean that web site are prohibited. I think not. You can even see from the reference to email address in paragraph (b) of sub-rule 39(4) that the rules were not oblivious of the internet civilization. Most effective law lists and law directories are online (or internet) publications. Ditto other forms of publication including newspapers, books and periodicals. Even, many radio and television exist on-line. So, the internet is derivative in its uses, meaning that its content does not have to be original, but derivable from other sources. If you want to understand what I mean, just 'google' your own name, and you will be surprised at the extent of information available on you on the Internet, even though these were not consciously put there by yourself.

A law firm web site is therefore not against the present state of the rules of professional conduct on advertising and solicitation. In the absence of any rule prohibiting its existence, the general provision regarding advertisement in Rule 39(1) of the 2007 rules is good enough cover for your law firm web sites provided the content of the web site is consistent with the degree of advertisement applicable to other means of communication specifically mentioned in other provisions of the rules. In other words, it is the content of the web site that determines its compliance with the rules. Appendix IA and 1B are samples of two Nigerian law firm websites which we may use for case study. Appendix 1A is that of Afe Babalola, SAN & Co (www.afebabalola.com) Appendix 1B is that of A.O.S. Practice (A.A. Aribisala, SAN) (www.aospractise.com). You will see that Appendix 1A contains essentially the information that our rule 39(4) permit us to put in the public domain; whereas Appendix 1B went overboard in many respects. Both are websites, but we see that one is careful and essentially compliant in content, whist the other is not.

SOME FACTUAL ILLUSTRATIONS OF COMPLIANT AND NON-COMPLIANT CONTENT

Let us now go into a case study session to apply what we have been talking about.

It is unfortunate that our rules of professional conduct are observed more in breach. Indeed, many, including not a few of the rank of senior advocate of Nigeria, would have been sent out of the profession but for the weakness in our enforcement mechanism.

Let us look at the rule relating to newspaper advertisement. Rule 39(3)(e) prohibits us from engaging in any act of self-aggrandizement. Rule 43 stipulates the only occasion when we may carry out newspaper advertisement. It says "On a change of address, telephone number or other circumstances relating to his practice^ a lawyer may send to his clients notice of the change and may insert an advertisement of such change in a newspaper or journal". For the avoidance of doubt. Rule 46(2) stipulates that a lawyer shall not "take steps to procure the publication of his photograph as a lawyer to the press or any periodical".

If for instance, a lawyer previously belonging in the outer bar is elevated to the rank of senior advocate, this development may qualify as a change in circumstance under rule 43, of which the lawyer may cause or permit an advertisement to be placed in the newspaper or journal, to announce his arrival in the inner bar. But Rule 46(2) prohibits such newspaper advertisement to include the photograph of the lawyer.

I have circulated to you as Appendix II to this presentation, photocopies of 9 newspaper advertisement of such a change in the circumstance of some lawyers in the year 2008.

If you look at all the nine sample advertisements, you will see that only one of them complied with the rules. And that is the copy of the advertisement in This Day newspaper of December 16, 2008 on Njemanze Ken Chukwuma Ohir and Eyitayo Jegede by the University of Lagos Faculty of Law Class of 1980-1983.


If you look further, you will also notice that the infringement in the others go beyond the issue of photographs. If you discountenance the issue of photographs, you will notice that of the remaining eight, only three do not infringe on the more serious rule against self-aggrandizement, viz (1) the advert in ThisDay of December 16, 2008, concerning Babajide Olatokunbo Koku (2) that of ThisDay of December 16, 2008 on Eyitayo Jegede, and © that of Thisday of December 16, 2008 of Donald Chika Denwigwe.

All the other five in our sample portfolio constitute very serious infraction of the rules. Look at the one of Dipo Okpeseyi in ThisDay of December 16, 2009 where the subject permitted himself to be introduced with the phrase "The sky has ceased to be your limit". Worse to follow was that of Chief Eze Duruiheoma in ThisDay of December 16, 2008, where the subject permitted himself to be described as "simply the best" (in the profession, of course). Next to that is the one on Aondoakaa Anthony Ijohor in ThisDay of December 16, 2008 where the subject permitted himself to be described as "Advocate Extraordinaire".

But the most ethically worrisome of them all were the two samples on the "emmanuelites" (Alhaji Lasun Sanusi and Olu Daramola). The one directly by the Emmanuelite (a firm of very accomplished lawyers, having produced no less than 14 senior advocates of Nigeria, and still counting) is the first in your sample pack which was carried in The Guardian of December 16, 2008. There you will see the pictures of the two 'emmanuelites' being congratulated by the other 'emmanuelites' with the words "We rejoice with you today as you join the rank of the best and noblest practitioners of Law in Nigeria". In the second one, also in the same Guardian of December 16, 2008, the subject was congratulated for being "gloriously crowned" with the title of Senior Advocate of Nigeria (apparently, all other lawyers, including his fellow Senior Advocates, are like his subjects in the practice of law).

Assuming therefore that these adverts had been carried on the web sites of the different law firms concerned, it is their content, not the medium that would determine whether there had been compliance with the specifications of the rules of professional conduct regulating advertisement.

From the samples given, you see how easy it is to still advertise without necessarily touting, even through the website medium.

CONCLUSION

You see how easily we could have changed the focus of this session of the workshop from the question "The emergence of law firm websites: Do we have any rules of advertisement?" to the question "Do we obey any rules of advertisement?"