The question of lawyer advertising in Ghana provoked a great debate at a recent international conference in Accra. I argued with passion against the current prohibitions, calling them vestiges of colonialism which had been overtaken by time. The audience applauded my arguments, but the then President of the Ghana Bar Association (GBA) disagreed, contending that these restrictive rules were as good as yesterday.
Despite the trend toward more liberal advertising practices in the legal profession in many countries, Ghana clings to outdated regulations. This paper examines the historical context of lawyer advertising, the current situation in Ghana, and argues for the necessary reform to align the profession with modern legal practices and the demands of the market.
The Historical Context of Lawyer Advertising
England:
The legal profession in England began over eight hundred years ago, divided between the barrister, who represented clients before the courts, and the solicitor, who managed the client’s affairs. The profession, imbued with the ideas of public service and nobility, regarded advertising as beneath its dignity. This distinction subsisted until late in the 20th century when the Law Society relaxed the strictures on advertising. By 1984, solicitors could advertise in newspapers, by radio, and on their premises. Today, both barristers and solicitors can advertise subject to the rules of the British Code of Advertising Practice and Direct Response Code.
United States:
The US modeled its profession after the British, initially adopting restrictions on advertising by lawyers. However, in 1977, the Supreme Court ruled in the case of Bates v State Bar of Arizona that lawyers had First Amendment rights to advertise, subject to the commercial speech doctrine. Following this case, the American Bar Association (ABA) revised its rules, allowing a more liberal approach to advertising by lawyers.
Kenya:
Kenya took a similar route of resistance and later reform. In 2012, a court decision declared the ban on advertising by lawyers unconstitutional. The Law Society of Kenya thereafter passed regulations permitting legal adverts to be run, adopting a more contemporary approach to the practice of law.
The Ghanaian Case
Ghana, a former British colony, adopted and retained strict restrictions on advertising by lawyers. The Legal Profession Professional Conduct and Etiquette Rules, 1969,LI 613 prohibit, among others acts that a lawyer shall not advertise his practice ” either directly or indirectly”. Indeed, the only type of advertisement permitted is a “simple board showing only the name of the firms and its location” and “business cards and stationery”.
When we were law students in the Ghana School of Law, we were told that the quality of our work would eventually attract clients through word-of-mouth. This view, however, is increasingly being regarded as anachronistic. It entrenches the position of the larger and longer established law firms, ensuring a lack of dynamism. Smaller and new entrant law firms hardly have any chance to build a market and market share. Clients are denied critical information about the expertise and the cost of legal services, which helps entrench a semi-monopolistic situation.
The Case for Reform
Enhancing Market Competition:
The prohibition on advertising stifles the dynamism of the legal market. It disallows newer firms from marketing their unique expertise and competitive rates. Legalizing advertising will democratize the market, increasing competition and possibly leading to better services and pricing for clients.
Improving Client Access to Information:
Clients gain when lawyers are allowed to advertise their areas of practice. Advertisement brings transparency that allows a client to make informed choices based on expertise and cost. The importance of this cannot be overemphasized in areas like energy law or corporate finance, where particular knowledge is required.
Adapting to Modern Legal Practice:
The claim that quality work will inherently sell itself is archaic. Most legal work today is done out of court and, therefore, out of public view. Advertisement can bridge this visibility gap by allowing lawyers to explain to the public the nature of their work and successes attained.
Counteracting Foreign Competition:
Foreign law firms operating in Ghana often disregard local advertising restrictions and find ways to utilize global marketing strategies to attract high-value clients. Local firms are therefore at a competitive disadvantage by such rules. Allowing Ghanaian lawyers to advertise will level the playing field so they can compete more effectively both locally and internationally.
Conclusion
The prohibition on lawyer advertising in Ghana is a leftover colonial era regulation which no longer serves the profession or the public. In the modern, competitive, and information-driven market, these rules inhibit the growth and efficiency of the legal sector. Reforming the advertisement restrictions will unleash the full potential of Ghana’s legal profession towards promoting competition, transparency, and excellence. It is time for the Ghana Bar Association and the relevant authorities to reconsider these archaic regulations and adopt a more progressive approach reflective of the realities of modern legal practice.
The writer is a practicing lawyer in Ghana.
