Rule 3.02 - Online Marketing and the Need for Civility

Omar Ha-Redeye

Fleet Street Law

Rule 3.02 – Online Marketing and the Need for Civility

Marketing Legal Services

3.02 (1) In this Rule, "marketing" includes advertisements and other similar communications in various media as well as firm names (including trade names), letterhead, business cards and logos.

(2) A lawyer may market legal services if the marketing • (a) is demonstrably true, accurate and verifiable, • (b) is neither misleading, confusing, or deceptive, nor likely to mislead, confuse or deceive, and • (c) is in the best interests of the public and is consistent with a high standard of professionalism.

R 3.02 MARKETING

Examples of marketing that may contravene this rule include: • a. stating an amount of money that the lawyer has recovered for a

client or referring to the lawyer’s degree of success in past cases, unless such statement is accompanied by a further statement that past results are not necessarily indicative of future results and that the amount recovered and other litigation outcomes will vary according to the facts in individual cases;

•b. suggesting qualitative superiority to other lawyers; • c. raising expectations unjustifiably;

•d. suggesting or implying the lawyer is aggressive; • e. disparaging or demeaning other persons, groups, organizations or institutions; • f. taking advantage of a vulnerable person or group; • g. using testimonials or endorsements which contain emotional

appeals. [emphasis added]

Commentary to R 3.02

Flaming: An online argument that becomes nasty or derisive, where insulting a party to the discussion takes precedence over the objective merits of one side or another

- (Urban Dictionary)

What is Flaming?

Why Does Flaming Occur?

Online Disinhibition

Effect

Dissociative Anonymity

Invisibility

Asynchronicity

Solipsistic Introjection

Dissociative Imagination

Minimizing Authority

Pig Rule # 1: Never wrestle with a pig—you only get dirty; and the pig likes it.

Pig Rule # 2:Never try to teach pig to dance – it wastes your time; and it only annoys the pig.

- Eugene Mehan, “Civility as a Strategy in Litigation: Using it as a Tactical Tool” (via http://www.supremeadvocacy.ca/)

Pig Rules of Professional Conduct

Dual Concern vs. Duel Concern

Regulating for Civility

Honourable Coulter Osborne, Civil Justice Reform Project: incivility contributes to adverse effects on access to justice.

Honourable Patrick LeSage and Professor Michael Code, The Report of the Review of Large and Complex Case Procedures: incivility contributes to complexity and cost of proceedings

Concerns over Civility

Licensing•Good character requirement• (2)  It is a requirement for the issuance of every licence under this Act that the applicant be of good character. 

Law Society Act, R.S.O. 1990, c. L.8 

• 2004-2007 complaints about professionalism grew from 11 per cent to 30 per cent

• 2010: complaints about professionalism accounted for 33 per cent

• regulators can reprimand lawyers for conduct in private lives

• “We have the ability to discipline them for inappropriate conduct if it brings the legal profession into disrepute.” - Malcolm Heins, Law Society CEO

LSUC Discipline

formal and remedial proceedings both exist

numerous factors reviewed:• the nature and seriousness of the allegation• lawyer’s response • lawyer’s history of complaints

• Only initiated once a complaint received

• Proceedings Authorization Committee order a prosecution through Law Society hearing• range of penalties: Warning to licence

restrictions• Suspension, loss of licence

Complaints About Civility

• Should LSUC discipline unbecoming conduct online?• Should a warning system be put in

place first?• Should there be guidelines developed

and issued to assist the profession?• Should LSUC stay out of licensees’

online conduct entirely?

Open Questions?

Contact

http://www.omarha-redeye.com/

Omar@FleetStreetLaw.com

@omarharedeye

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