36. Advertising

1. A solicitor or principal of a law practice must ensure that any advertising, marketing, or promotion in connection with the solicitor or law practice is not:
   1. false;
   2. misleading or deceptive or likely to mislead or deceive;
   3. offensive; or
   4. prohibited by law.
2. A solicitor must not convey a false, misleading or deceptive impression of specialist expertise and must not advertise or authorise advertising in a manner that uses the words “accredited specialist” or a derivative of those words (including post-nominals), unless the solicitor is a specialist accredited by the relevant professional association.

Commentary

A solicitor may not advertise in a way that is false, likely to mislead or deceive, offensive or prohibited by law, including in relation to a practice specialisation. Rule 36 is complemented by the Australian Consumer Law, while advertising personal injury legal services is further restricted by the Personal Injuries Proceedings Act 2002 (Qld).

36.1 False or offensive advertising

The Australian Consumer Law ('ACL') applies to 'any business or professional activity': Competition and Consumer Act 2010 (Cth) s 2; Fair Trading Act 1999 (Qld) s 16 applies ACL in Queensland.

The ACL provisions relevant to lawyer advertising include:

• Misleading and deceptive conduct: ACL s 18
• False or misleading representations about services: s 29
• Misleading conduct as to the nature etc of services: s 34
• Consumer guarantees: ss 60-62
• Component pricing: s 48
• Unconscionable conduct: Part 2-2, and
• Unfair terms: ss 23-28

Solicitors should consult the Legal Services Commission’s Regulatory Guide The Application of the Australian Consumer Law to Lawyers.

36.1.4 Personal injury advertising. There are restrictions on personal injury advertising for lawyers in Personal Injuries Proceedings Act 2002 (Qld) ss 63-69 ('PIPA'). Advertising of personal injury services takes place if a person causes to be published a statement likely to encourage or induce a person:

• to make a claim for compensation or damages for a personal injury; or
• to use the services of a named law practice for that claim: PIPA s 64.

Advertising is allowed in printed publications such as newspapers, magazines, directories and flyers, as well as billboards, signs and the internet: s 65. It is not allowable on radio, television, recorded telephone messages or by the public exhibition of photographs, films or other recordings of images or sound (e.g. cinema advertising). 

The content of personal injuries advertisements is restricted to the name and contact details of the law practice and their areas of practice: s 66(1). Additional statements are permitted on a law practice's own website: statements on the operation of personal injuries law, a person's legal rights under that law, and the conditions under which a law practice is prepared to provide personal injury services: s 66(2). Accordingly, advertising personal injuries services on a 'no win, no fee' or other speculative basis is permitted only on the firm's own website. 

Touting at the scene of an incident where a person allegedly suffered personal injury, or afterwards at a hospital, or at any time is prohibited (PIPA s 67), as are referral fees (s 68).

The Legal Services Commission monitors and enforces the provisions of PIPA, and a complaint about breach of PIPA can therefore be taken to the Commission. Solicitors should consult the Commission’s Regulatory Guides Advertising Personal Injury Services, Advertising Personal Injury Services on the Internet and Advertising Personal Injury Services on Internet Search Engines and Non-Lawyer Websites.

36.2 Accredited specialist

Accredited specialists are lawyers recognised by a relevant professional body as having specialist expertise in a particular area of law. The term is not defined in the ASCR. The Queensland Law Society and the Law Society of South Australia have schemes of specialist accreditation, and the specialists are entitled to promote themselves as such through different forms of advertising. The QLS Accredited Specialist Marketing Guidelines deals with the correct usage of the logo and post-nominals on promotional materials. Accreditations attach to the practitioner with the specialisation, not the law practice, so logos must not be placed in close proximity to the name of the practice or a legal practitioner without accreditation.