Rule 39 Of The Rule Of Professional Conduct, 2007 And Law Firm Marketing: A Practical Perspective

by Olalekan O. Elizabeth

Before 2007, advertising was banned for lawyers in Nigeria because of the noble nature of the profession. In Nigeria, the legal profession is a noble and sober profession, the profession employs mechanisms to not only protect its status but to also provide rules that regulate the conduct of its members. Advertisement is a marketing strategy that is aimed at bringing public awareness to a product or service.

The rule against the improper attraction of business is therefore aimed to protect the dignity of the legal profession and prevent the unhealthy competition that might arise in the course of superiority among legal practitioners and law firms in Nigeria.¹

Rule 39 of the Rule of Professional Conduct, 2007, and Law firm Marketing

In the Nigerian legal profession, the issue pertaining to advertisement is provided for in Rule 39 of the Rules of Professional Conduct, 2007. Under the rule, nothing forbids a legal practitioner or a law firm from advertising provided such advertisement does not go against the provisions of the RPC.

Rule 39 of the Rules of Professional Conduct provides as follows:

(1) 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:

• It is fair and proper in all the circumstances
• complies with the provisions of these Rules

(2) A lawyer shall not engage or be involved in any advertising or promotion of his practice of the 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 comparisons with or criticizes other lawyers or other professions or professionals;

(d) Includes statement about the quality of the lawyer’s work, the size of success of his practice, or his success rate; or

(e) Is so frequent or obstructive as to cause annoyance to those to whom it is directed.

There are diverse opinions as to whether a lawyer can advance the cause of his trade through advertisement. However, a perusal of rule 39 of the RPC reveals the true position of the law on the issue.

It, therefore, becomes established that contrary to popular belief, a lawyer can advertise his trade. However, the same must be in line with parts (a) and (b) of paragraph (1) of the RPC 2007 and subject to paragraphs (2) and (3) of the RPC 2007.²

In paragraphs (2) and (3) of the RPC 2007, the rule further provides for instances, (provisos) when an advertisement shall constitute improper conduct. These among others are;

• A lawyer shall not engage or be involved in any advertising or promotion of his practice of the law which –
• is inaccurate or likely to mislead;
• is likely to diminish public confidence in the legal profession, or the administration of justice, or otherwise bring the legal profession into disrepute;
• makes comparisons with or criticizes other lawyers or professional or professionals
• includes any statement about the quality of the lawyer’s work, the size or success of his practice or his success rate; or
• is so frequent or obstructive as to cause annoyance to those to whom it is directed

Although paragraph (1) of Rule 39 of the RPC 2007 allows a lawyer or law firm to advertise, paragraph (2) of the RPC 2007 states that such advertisement must not be misleading or inaccurate. It must also not have a demeaning effect on the image of the profession, compare oneself with other lawyers or professionals, indicate an appraisal of his success, or constitute a nuisance to the target audience.[iii] In essence, paragraph (2) of Rule 39 of the RPC 2007 provides that the advertisement of a lawyer ought not to be of such nature that may spell adverse effects for his colleagues, his clients, the legal profession, and the society at large.

Furthermore, paragraph (3) of Rule 39 of the RPC 2007also restricts the freedom of a lawyer to advertise, by prohibiting him from soliciting for professional employment either directly or indirectly by:

• circulars, handbills, advertisements, through touts or by personal communication or interview;
• furnishing, permitting, or inspiring newspaper, radio, or television comments in relation to his practice of law;
• procuring his photograph to be published in connection with the matter in which he has been or is engaged, or concerning the manner of their conduct, the magnitude of their interest involved, or the importance of the lawyer’s position
• permitting or inspiring sound recording in relation to his practice of law; or
• such similar self-aggrandizement

The operative word in paragraph (3) of the RPC 2007 is “solicit”. Paragraph (3) suggests that a lawyer ought not to solicit to be taken under the employ of any client in his professional capacity.

Paragraph 4 of Rule 39 of the RPC 2007 further provides this:

“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 —

1. his name or names of his professional association;
2. his address, telephone number, telex number, e-mail address, etc;
3. the school, colleges, or other institutions attended with dates of graduation, degree, and other educational or academic qualifications or distinctions;
4. date and place of birth and admission to practice law;
5. any public or quasi-public office, a post of honour, legal authority, etc;
6. any legal teaching position;
7. any national Honours;
8. membership and office in the Bar Association and duties thereon; and (i) any position held in legal scientific societies”

Rule 39 of the RPC 2007 shows that advertisements are allowed, however contingent on the conditions that they are not injurious to other lawyers, the legal profession, other professions, or to the general public, and also provided that lawyers do not beg to have their services procured.

However, they are not barred from providing informative data about themselves or their services, so far it does not go against the provisions in paragraphs (2) and (3)of the rule under consideration. Founded on the mischief rule of interpretation and the extant social advancements which features breakthroughs in science and technology, it may also be implied that the provisions of paragraph (3) of the RPC 2007 may also apply in circumstances where one advertises on social media.

Lawyers and law firms in Nigeria are very careful when marketing their services. Most law firms rely on referrals from clients, their reputation, and their network.

The Supreme Court in N.B.A. v Ohioma⁴ noted that the profession should be undertaken with seriousness and lawyers have the duty to maintain the very high standard required in the practice of the profession. This is why the Rules of Professional Conduct for Legal Practitioners in Nigeria (RPC) exists.⁵

Conclusion

Any lawyer who practices in Nigeria may advertise his trade, provided that the form or content of such advertisement is not contrary to the stipulations of rule 39 of the RPC 2007 which purports to protect the status of the legal profession, other professions, and the general society.

Footnotes

1 https://thelegalstandpoint.law.blog/2022/02/17/955/ accessed on 15/03/2023

2 https://barristerng.com/advertisement-in-the-legal-profession-latitudes-and-prohibitions-in-the-rpc/ accessed on 15/03/2023

3 https://barristerng.com/advertisement-in-the-legal-profession-latitudes-and-prohibitions-in-the-rpc/ accessed on 15/03/2023

4 (2010) 14 N.W.L.R (PT.1231) 641 at 680

5 https://businessday.ng/news/legal-business/article/thou-shalt-not-advertise-the-line-between-business-development-and-solicitation/ accessed on 15/03/2023

Credit:mondaq