Unspoken tricks of the trade

When does advertising become touting?

By Lindy Langner

Touting has been taboo in our profession since the beginning. As law students, prospective attorneys were forewarned of the ultimate consequence of touting – being struck off the attorneys’ roll.

The Oxford Dictionary defines touting as ‘solicit custom persistently; pester customers (touting for business)’ or ‘solicit the custom of a person or for a thing’. 

On the plain wording it is thus clear that approaching potential clients without their consent or invitation repeatedly and aggressively, thus forcing oneself on them in a bold manner, would on the face of it suffice as touting.

With this in mind, attorneys eagerly enter the profession to learn how to build their practices without overstepping boundaries. Attorneys were previously not allowed to advertise and market their services, attorneys were, and still are, quite at a disadvantage in trying to establish starter firms, in comparison to well-known established law firms.  

Cohabiting in a technologically-driven era with digital presence advancing at a rapid speed, the older ‘word of mouth’ approach seems a far beyond effective means to build a successful practice with advertising and marketing ­becoming all the more unavoidable and now incorporated into the codes of ethics of attorneys. 

Accordingly, the Law Society of the Northern Provinces (LSNP) has published advertising and marketing guidelines for attorneys to promote their services in an ethical and honourable manner (‘Advertising and marketing guidelines – Advertising and marketing for attorneys’ (www.northernlaw.co.za/Documents/marketing_rules/Advertising_guidelines.pdf, accessed 26-3-2014)).

That being said, established older generation law firms might feel threatened by fast moving multi-media in the advertising and marketing sector and are very quick to point a finger and accuse the younger generation of ‘touting’ in an attempt to build a practice.

An underlying practical problem then arises as at what stage does one cross the fine line between advertising and marketing and touting as this appears to be an unknown ground.

From the outset it would appear as though a simple telephone call – based on a referral and inquiry from a prospective client, offering to explore your services, followed by delivering of marketing material, leading to a meeting – would not be regarded as touting per se, or would it? 

The plain wording in the above scenario does not purport the persistent ‘pestering’ in an attempt to convince the prospective client to utilise your services. However, given that the attorney telephoned the prospective client based on the inquiry and referral and not the client phoning the attorney, this might fall within the ambit of unprofessional conduct due to technicality in terms of the LNSP guidelines. Naturally, it depends from which point of view one is looking at the scenario, as touting seems to be quite a subjective term.

Unspoken ‘tricks of the trade’ are that law firms establish separate marketing firms purported to be their clients who attend to the general marketing and advertising of the particular law firm, thus by-passing technicalities and the rules of advertising and marketing and touting in general.

Also, the term ‘fair marketing’ as per the Competition Commission allows for equal opportunity to compete in the open market, which due to restrictions imposed by the law societies cannot set forth a level playing field within the legal profession, at this stage. 

In the matter of Law Society of the Northern Provinces v Sonntag (SCA) (unreported case no 189/2011, 25-11-2011) (Malan JA (Harms AP, Lewis, Malan and Leach JJA and Plasket AJA)), Sonntag was struck off the roll for employing touts in third-party work, sharing both offices and fees, ‘purchasing’ third-party claims from touts and acting dishonestly. Section 22(1)(d) of the Attorneys Act 53 of 1979 provides that an attorney may be struck off the roll or suspended from practice ‘if he, in the discretion of the court, is not a fit and proper person to continue to practise as an attorney’. 

Sonntag was charged with unprofessional, dishonourable or unworthy conduct in that she referred or assisted or co-operated with a person or organisation, work which was reserved for practising attorneys only. Further to this, such person or organisation received payment or other consideration in respect thereof and Sonntag shared both offices and fees with an organisation or person, not being a practising attorney. 

Further to this, Sonntag placed an advertisement in the Letaba Herald on 16 August 2002 under the heading ‘Your One Stop Legal Centre’ with photos of the person whom she worked with noting that he had ‘12 years’ experience’ in third-party claims, yet such person and organisation was never part of the profession.

It was held that Sonntag was dishonest by touting and charging clients for the fees of the touts. She was not a fit and proper person to practise as an attorney and further that there were exceptional circumstances of dishonesty, justifying removal from the roll as she repeatedly denied her serious misconduct, thus never being able to grasp her misconduct, if not struck from the roll.

From the above case law, it appears as though courts do consider the surrounding circumstances before striking an attorney off the roll for touting and false advertising and marketing, in that ‘the crime must fit the punishment’. 

Referring only to the definition of touting as contained in the dictionary, one can clearly note that aggressively pursuing prospective clients or paying fees to touts for clients, is unquestionably touting and unlawful conduct.

However, touting in the broader sense and, as portrayed in the advertising and marketing guidelines for attorneys, can refer to just about any approach to marketing one’s services safe for general bill boards, radio or television advertising setting ground rules for what such advertisements may and may not contain.

The Director of the LSNP, Tinus Grobler, has pointed out that the below definition of touting as per the draft uniform rules, is currently under consideration:
‘A member will be regarded as being guilty of touting for professional work if he or she either personally or through the agency of another, procures or seeks to procure, or solicits for, professional work in an improper or unprofessional manner or by unfair means, all of which for purposes of this rule will include, but not be limited to:
49.17.1 the payment of money, or the offering of any financial reward or other inducement of any kind whatsoever, directly or indirectly, to any person, in return for the referral of professional work; or
49.17.2 directly or indirectly participating in an arrangement or scheme of operation resulting in, or calculated to result in the member’s securing professional work solicited by a third party’ (‘Draft Uniforum Rules’ (www.northernlaw.co.za/Documents/uniform_rules/Draft_Uniform_Rules.pdf, accessed 26-3-2014)).

Further draft definitions of touting are also currently under review by the Competition Commission.

Considering the abovementioned case law, the proposed definition of touting is a clear indication of unprofessional conduct while touting in terms of the advertising and marketing guidelines should be reconsidered to indicate exactly what would and what would not be classified as touting. This would certainly avoid petty issues that may lead to unnecessary investigations and time spent by the law societies.

As attorneys it is advised that touting, as per the plain definition and wording, be avoided and any alleged touting in terms of the advertising and marketing guidelines first be approved by the board of ethics of the relevant law society in order to ensure that no boundaries are overstepped.

Lindy Langner LLB (UP) is an attorney at Langner attorneys in Pretoria.