The Law Society of Upper Canada (LSUC) must increase its enforcement game after strengthening its advertising rules, says personal injury lawyer Steve Rastin. The LSUC voted at its February Convocation to cap referral fees paid to lawyers and paralegals who pass on clients to fellow members of the bar.
Benchers also adjusted the LSUC's rules to ban advertisements for second opinion services and to tighten the guidelines for when awards can be used in marketing materials. In addition, lawyers and paralegals were reminded that they may not advertise for work they don't intend to carry out.
Rastin, managing partner at Rastin Trial Lawyers, says the move is a "welcome first step," but adds that he would like to see the regulator back up its words with some action.
"The real issue the Law Society and the profession are facing here is not the rules we have in place, but the enforcement of those rules," he says. "Until they show they have some real teeth, I'm not sure we're going to get any relief."
Rastin says a public show of disapproval from LSUC would go a long way to convince the general public that it's serious about the crackdown on lawyer advertising.
"I know one approach for the Law Society has been to quietly contact lawyers who are violating to try to get them to change, but I'm not sure that's a good way to deal with bad behaviour," he says. "I'd like to see a public statement that they have disciplined a repeat offender for not following the rules. If this is going to work, they need to have people dedicated to the enforcement side of things.
"There's an old adage that justice must not only be done, but it must be seen to be done," Rastin adds.
A report submitted to benchers by the LSUC's Advertising and Fee Arrangements Issues Working Group had been under review since February 2016 after a growing number of complaints about misleading practices by lawyers in the province.
"With these changes, the Law Society is establishing new and stronger measures to protect the public. Capping referral fees and taking steps to make certain the client is fully aware of their options will ensure that it is the client who benefits from the referral," Law Society Treasurer Paul Schabas said in a statement after the vote. "We will continue to monitor lawyer and paralegal activity in this area and our enforcement to ensure Ontarians are well-served, and the public interest is paramount."
The prohibition of second-opinion advertising was particularly pleasing to Rastin.
"I think that platform was really a mechanism to allow one lawyer to try to take over the case from another, which is particularly objectionable," he says.
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