It’s a funny thing about lawyers’ advertising – so many ads talk about a “free consultation.” It’s like some universal code phrase that makes no sense in the modern world. Even our website talks repeatedly about the “free consultation” like it’s something unique.
You start to wonder if it’s some sort of trick. It’s not, but it’s a strange anachronism for sure. It comes from an era, now long gone, and lawyers seem not to know why it existed in the first place.
If you go back 120 years, lawyers were generally permitted to advertise. It was recognized that providing legal services was a business endeavour. Lawyers perform an important public service and are bound by the rules of their profession. At the same time, in order to serve the public, the public needs to know about the services the lawyers provide.
Now of course, the profession of law has long been one of the most restrictive old-boys clubs that ever was. It was only when forced that the profession allowed women and people without Anglo-Irish names into the profession. Much changed in the last 60 years but before then there was a retrenchment. Facing change and the threats to the old-boys club, about 100 years ago we saw increasing regulation of lawyers including an outright ban on advertising.
In the early days of the last century, bar associations across the United States moved to ban outright the advertising of legal services. In Canada we often just copy the Americans and so we had similar provisions. The ban on advertising was largely driven by senior lawyers wanting to protect their established position from competition by younger lawyers. The ostensible reason put forward, however, was that advertising was unprofessional.
Of course, advertising serves many purposes, the first being to inform the consumer that there are options. Advertising can be a pitch-job. It can be merely intended as information about, or a reminder of, the existence of a product or service. It can help a consumer know about a product or service that may assist them. It may help a consumer know about prices, options and advantages of a product or service. It may assist a customer to find something better.
A particular problem we have in law is that there is one massive section of the population who are not well served by our justice system, and that is the working middle class. People earning between $35,000 and $140,000 per year cannot get a free legal aid lawyer (even those earning less can’t for many types of cases) and so they have very limited “access to justice.” Access to justice is, of course, a term or art which means they don’t get lawyers and can’t really use the court to get a remedy in their matter. If you’re rich, you can afford a lawyer. If you’re rich, you have access to justice.
In the legal profession we have known for decades that the working middle class are virtually shut out of the justice system because they can’t afford the cost of hiring a lawyer. This was fine for the old-boys club because their wealthy clients just went along paying for them. And of course, this facilitated a tradition of high fees. It wasn’t great when it came to serving the public, however.
Under the pretense of protecting the integrity of the profession, early in the last century lawyer advertising was banned in Canada and the United States. And this went on for decades until a US Supreme Court decision struck down the ban. But in the meantime, certain advertising traditions developed.
You see, lawyers were still permitted to list their name and contact information in the form of a listing. However, although lawyers were permitted to advertise the name of the lawyers or the firms, they were not permitted to advertise their fees.
So permissible advertising during the days of advertising bans were basically discrete listings in the back of the newspaper classified ads with the name of the lawyer or the firm and contact information. That was allowed. Specifically not allowed, however, was the cost per service. There was a reason for that.
The old-boys club members were concerned that advertising would cause them to lose clients and competition would cause them to need to lower their fees. To deal with that the bar associations and law societies prohibited advertising and in particular advertising that showed the prices for services.
Creative lawyers (most of us are not involved in making the rules) looked at the ban and thought “okay, we can’t list our fees, but we can list what we do for free.” Hence, the “free consultation.”
And so began the wide use by lawyers of the phrase “Free Consultation.”
In practise, this really took off with the telephone. Although lawyers often had internal price sheets for various services, they were not allowed to advertise prices. Instead, they would advertise a “free consultation” and when potential clients called a legal assistant would merely read out the prices on the phone. This was all there was to a free consultation. Although it was no “consultation” in the sense that we use the term today, it was just what was expected in 1948. It was, in essence, the revealing of a price sheet over the phone instead of in the newspaper.
Every lawyer began to offer a “free consultation” and the use of this phrase in lawyer advertisement goes on to this day despite it being a phrase that provides lawyers with nothing to distinguish themselves from any other lawyer.
Legal challenge: breaking the rules for a point
Two Arizona lawyers challenged the bar rules (equivalent of our Law Society rules / code of conduct) by advertising in contravention of the rules. They published an advertisement that had prices in it. They were prosecuted by the bar association and suspended from practise for 6 months. For six months they were not allowed to be called lawyers or perform legal services because they advertised the price they charged for their services.
They challenged that decision in court and ultimately it went to the US Supreme Court. The Court ruled that advertising bans were an unacceptable prohibition on free speech and that the true effect of the bans was to perpetuate the position of established lawyers.
Access to justice
Access to justice is a perpetual problem. It’s one we have tried our best in our office to deal with in a number of ways. In our office we try to be out and part of the community. The idea is that we make people aware that there are lawyers out there who are approachable and willing to help. We also try hard to keep our fees low. There is no doubt in our minds that this wins us the ire of some who would like to keep lawyers the privilege of the rich.
By most accounts the middle class are still poorly served by the justice system. We are trying to fix that with the limited tools that we have.
When it comes to a “free consultation” we as lawyers are all slaves to history. Few understand why we use these words. It started because some wanted to limit what we could say in advertising.
And for those who want to know more:
In the US Supreme Court decision that struck down the ban on lawyers’ advertising, the argument that was put forward was that lawyers’ advertising should not be “false, deceptive, or misleading.” That language was adopted by the court and you will find a close variation of it in the BC Law Society code of conduct along with those of the bar associations across the US.
Interestingly, around this same time there was a price-fixing movement among the legal profession. Many established lawyers wanted to ensure that no lawyers would charge less so there were attempts in many jurisdictions to set prices to protect their profits. It’s hard to understand these days how lawyers could be so willing to stifle freedom of speech and the freedom of the market to set prices. These days, thankfully, we have more diversity of opinion and perspectives. In addition to protecting our clients’ legal position, in our view lawyers should also protect their clients’ financial position by charging fair fees.