“Thou shall not advertise or solicit work!” – Sir Malcolm Hilbery
As per rule number 39 of the Supreme Court Conduct of and Etiquette for Attorneys-at-law Rules 1988, an attorney-at-law should not resort to any practice of touting or advertising directly or indirectly. For this purpose, Touting includes; commission or paying to a person to solicit clientele and advertising in any form to attract the clientele. The provisions are similar in several foreign jurisdictions such as Malaysia (Rule 45 (a)) as well.
Upon defining touting within the legal parameters, arises the conflict between economic interest and an attorney’s role as an officer of the court. Dr. Amerasinghe claims that an attorney’s ‘primary concern’ must be his service, not the economic interest. However, the distinction cannot be easily placed as human beings are naturally creatures of interest.
As quoted at the outset, Sir Malcolm Hilbery considers it an act beneath the dignity of the Bar and an act of the highest improperness. He believes that an attorney must build his client base based on skills rather than by advertising.
Considering many views, traditionally, the liberty of advertising for an attorney was limited to merely verifiable subjective and objective information. It should not disclose the superiority of the individual or the firm but rather the experience.
With the development of social media platforms, many professions have started promoting their respective professions via social media pages, particularly through Facebook pages.
The Daily Mirror reported two complaints that have been lodged with the BASL concerning unprofessional touting on social media platforms via video clips, regarding which the BASL has initiated inquiries. Similarly, a statement issued by The Law Association of Trinidad and Tobago (LATT) warned attorneys over appearing in Facebook and Tik-Tok content to promote their profession, naming them ‘offending attorneys’
Thus, it is evident that the scope of Rule 39 needs to be redefined to suit the recent technological and social developments. A comparative analysis with foreign jurisdictions may help design the new boundaries for the rule. The American Bar Association Model Code in Disciplinary Rules allows limited publication and broadcast in a given geographic area merely to facilitate the process of selecting a lawyer. Though geographic boundaries are now restricted to just the maps, the essence of the rule can still be derived to suit social media platforms. That is to merely facilitate the selection of a lawyer out of the given prospects.
Similarly, New Zealand’s Rule 4.02 specifies that approaches should be made in a manner that does not disrespect the profession and must follow the proper professional standard. The key idea entrenched in this rule can be reinforced with regard to the use of social media platforms by Attorneys and Law Firms as well.
Lastly, in specifying social media guidelines with regard to Rule 39, Rule 40 must also be taken into consideration. Rule 40 specifies the criteria that can be included in the professional display plate. It includes; the name of the Attorney of Law Firm, professional qualifications, academic qualifications, and office hours. These criteria can be permitted to be displayed on social media pages as well.
It is also vital to note that the Sri Lankan Constitution ensures the Freedom of speech and expression, to every citizen, under Article 14. The broadness of this Article has been interpreted by the Supreme Court in several instances. Hence, placing severe restrictions on the expression of freedom will result in unconstitutional rules.
Thus, it is evident that the scope of touting and advertising needs to be re-envisioned in the modern digital era. In this re-defining process, it is vital to keep in mind the core function of the rule which is to preserve the professional value of an Attorney and ensure one’s duty towards the court is fulfilled prior to the acquisition of personal benefits.
Penned by : Malkini Fernando
Rotaract Club of Faculty of Law University of Colombo 
This is a valuable explanation for us as under-graduate students. Thank you very much for the info. A small question i would like to point out is that, we have seen many qualified lawyers make youtube videos regarding the career. It may be an explanation about the subjects we learn, about court procedures, etc. To show that they are well qualified in this, they use their titles before the explanation starts. Can we say that indirectly they are promoting their own law firms and themselves? Thank you.
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