1. In most European countries marketing of legal services performed both by individual professionals as well as by law firms has always resulted in a delicate task. While lawyers are not prevented from promoting their firms and the services offered, such marketing is however subject to various restrictions. 'Aggressive' marketing practices – as commonly used in several foreign countries, such as the US – are considered in many European jurisdictions to result in improper conduct, as such not allowed and easily sanctioned as infringement of the Bar Associations' ethic rules.
The general criteria governing what a lawyer is entitled to do for promoting his firm are laid down in the Charter of Core Principles of the European Legal Profession (adopted in Brussels on 24 November 2006) and in the Code of Conduct for European Lawyers (in force – with amendments and integrations – since 28 October 1988). The Charter and the Code constitute a Self-Regulation system administered by the Council of Bars and Law Societies of Europe (CCBE, details at the URL http://www.ccbe.eu/NTCdocument/EN_CCBE_CoCpdf1_1382973057.pdf).
On the premise that the Charter considers as one of the core principles lawyers always need to bear in mind that of the "dignity and honor of the legal profession, and the integrity and good repute of the individual lawyer", the Code sets (in Section 2.6.1. – Personal Publicity) that: "A lawyer is entitled to inform the public about his or her services provided that the information is accurate and not misleading, and respectful of the obligation of confidentiality and other core values of the profession. Personal publicity by a lawyer in any form of media such as by press, radio, television, by electronic commercial communications or otherwise is permitted to the extent it complies with the requirements of 2.6.1."
2. In Italy, such core ethic rules were enforced – for decades – in a rather strict way, making advertising through traditional marketing techniques almost impossible to perform for lawyers. However, the impact of the Internet – together with the risk of being questioned by the EU institutions for anti-competitive regulations – have determined a more relaxed approach to the issue.
The current version of the Italian Bar Association's Ethic Code now allows lawyers to provide – in the interest of the public – information about their professional activities, about the organization and structure of their firms and about the scientific, professional, postgraduate or academic qualifications achieved. Clearly, all information needs to be correct, truthful, transparent, not misleading, not suggestive and not comparative or denigrating.
3. Following a trend widely in use in some foreign jurisdictions, a local law firm felt that the modified ethic code would allow them to promote their firm by mentioning the names of some of their clients (after having duly obtained their specific consent for such practice).
The Bar Association disagreed and - considering the initiative as exceeding the limits set for lawyers' publicity - served them with a warning and an invitation to desist from such practice.
The lawyers sanctioned objected against such disciplinary measure and the case ended up before the joint Chambers of the Italian Highest Instance Court (= "Sezioni Unite della Corte di Cassazione").
4. The Supreme Court dismissed the appeal as not grounded, confirming the disciplinary sanction.
In the Court's view.
- lawyers are entitled to 'informative communication' to the public about their firms and services,
- however, the relationship between a lawyer and his/her client is not a strictly private one, given the role of the lawyer as a necessary participating subject to the exercise of the judicial function (no trial being allowed to be performed without the intervention of a lawyer),
- therefore, such relationship had to be considered as 'peculiar', diverted away – once established through a mandate – from the parties' mere discretion or their 'commercial' intentions and results subject to stricter regulatory criteria, set in the light of public interest and not to be overcome by specific consent to be mentioned as a client,
- subsequently, a correct reading of the existing ethic rules for the legal profession did not lead to consider the right of providing 'informative communication' to the public as including the faculty of promoting a law firm through references to its existing clientele.
5. Ah, one would wish that the Supreme Court's flattering words about the 'solemn' role of the legal profession, would come to a judge's mind any time lawyers are harshly reprimanded in a court room.
It will also be interesting to see how effective the Court's indications will result for marketing performed in an online environment (e.g. on social media).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.