By Harold Turigye
It is time to reconsider the legal bar against lawyers advertising their wares
It is by reading of the title of this article that some have just realised that lawyers in Uganda are not permitted to advertise in any form media both as an individual capacity and as a law firm. Some have further realised that they have never seen a big sign post for any law firm, and all you will see are small plates near offices/chambers just for notification and direction. This is because the legal regime demands so and thus advertising by lawyers in Uganda is illegal.
The legal profession in Uganda is governed by the Advocates Act, Cap. 267 and the Regulations thereunder which address the pertinent areas of legal practice and conduct of Advocates in Uganda.
Section 74(1)(f) of the Advocates Act categories the actions of advertising by an advocate as a disciplinary offence which warrants punishment of such advocate. This Provision has been supplemented by Regulation 25 Advocates (Professional Conduct) Regulations, S.I 267-2 which details the scenarios of advertising an advocate shall not engage in that is.
According to the regulations, advertising is but not limited to a lawyer allowing name or the fact that he/she is an advocate to be in any commercial advertisement, cause his/her name or firm name to be inserted in a heavy or distinctive type to appear in any directory and allow his or her name to appear in any classified or trade directory.
Please note from this law that although the Act and Regulations have elaborately indicated that advertising is not an available option to Advocates when practising their trade, there has not been any reference to what exactly amounts to advertising. In allusion to the Biblical story, God telling Adam not to eat the fruit, and then does not show him which fruit not to eat. The fact is that the lines on what amounts to advertising are faint.
In an effort to find definition outside the law, the Blacks’ Law Dictionary defines advertising as the action of drawing the public’s attention to something to promote its sale. In this case, lawyers advertising would amount to any portrayal by a lawyer or a law firm to sale or promote his/her image, and practice.
“For the People and for the Profession” has been the basis of arguments from both camps. Those for the ban argue that the reputation of the profession must be protected, and the unsuspecting public should not be exposed to substandard breed of lawyers who would gain a name by advertising. These therefore defend the legal regime that it is intended to protect clients who may be recruited by unscrupulous and incompetent lawyers; ensure that the public is not inherently misled and that considering the legal profession is a noble one, the reputation of a lawyer or law firm is hinged on reputation of the lawyer in the public.
Those against the bar have argued that the law is overtaken by events of time. They further argue that it is discriminatory and unconstitutional in as afar as t limits the constitutional freedoms of expression, information, and general economic rights.
The focal view of this subject is that the provisions of the Advocates Act seem to contravene Article 40 of the Constitution provides for economic rights wherein Clause 2 intimates that every Ugandan has the right to practice his or her profession and carry any lawful occupation, trade or business.
Additionally, Article 21 of the Constitution provides that such enjoyment of economic rights should be free of any discrimination whereby all persons are equal before the law in all spheres of economic, political, social and cultural life and in every other respect, to which they shall enjoy equal protection of the law.
There is therefore a need to note that lawyers are also businessmen in the market. On average an uptown law firm does not receive a “walk-in client a whole year and so the clientele is by referrals and individual reputation. The market place therefore makes it a hard rock for sprouting law firms to get through the shrubs to where the fountain is. No wonder those arguing against the legal status quo aver that the law simply states that “open shop but close the Shop” and so most of the law firms starting collapse within one year of opening, while the established law firms continue to raise in capital ranks. By default, the law widens the gap, and deprives many a chance to compete. An old English saying that only victims blame that system is not applicable in the circumstances as this would take away the humane instincts of advocacy for justice.
Whichever way you look at it, it is lawyers in market place and with the law enforcing a compulsory silence about who they are, only those with “coloured stalls” will sell.
A comparative view of the legal positions in other jurisdictions adds colour to this subject. In India, a jurisdiction which forms the basis of Uganda’s law by virtue of British colonial policies has maintained the bar up-to-date. In the case of Indian Council of Legal Aid and Advice Vs Bar Council of India (1995) Court held that the legal profession is a noble one which ought not to be tarnished by the negative effects that comes with advertising. This is a clear mirror image of the current position in Uganda.
The American position on the ban on advertising by Advocates was overturned in the famous case of Bates Vs State Bar of Arizona, a Supreme Court decision which confirmed that the public’s right to information is paramount over the Bar’s desire to regulate the activity of the legal profession
In Kenya Court ruled that the law equivalent to the Advocates Act on advertising was unconstitutional. This led to the adoption of allowing advocates to advertise their services. This petition was rooted on the fact that a ban to advocates advertising their services was contrary to the Right to Information and Access to justice as guaranteed under the Kenyan Constitution.
Most of the jurisdictions have since moved on from the colonial law which was shaped based on the reputation of the lawyers at the time and the setting of the society where lawyers were not only few but of a kingly reputation because of their financial muscle. By then, LDC was not releasing more than 500 students per years, not more than 1 University was offering a law degree. By then, there was no internet, not websites, and no international clients who would know that a certain lawyer offers some service.
To crown it all, whether we are to choose the reputation of the profession and rigidity of the mediaeval laws over constitutional freedoms and adaptation to the change in times is up to us. Even with the with the efforts by the law society to clean the profession of quack lawyers, an amendment in this law would not be a challenge at all. There is therefore the inevitable need to amend the law to allow and9or) regulate advertising. As the legal profession is the candle that carries the light of justice and equality, let charity begin at home.
The Writer is an Associate at PACE Advocates.