Marketing tactics by law practices

There have been a number of different stories circulating this week referring to what has been variously called ‘claims farming’, ‘cold-calling’, ‘referral fees’, ‘ambulance chasing’ and ‘direct marketing’.

These practices are not all the same, but there are some common themes that consumers and lawyers in Victoria need to be aware of in this area.

Access to justice and privacy

Putting a person in touch with a lawyer who can help them can be a valuable service, and exploring new ways of connecting people with legal help should be encouraged. However, this should only be done in a respectful way that does not breach a person’s privacy, or aggravate the trauma of someone who has recently suffered.

The Rules

The Australian Solicitors’ Conduct Rules 2015 generally do not forbid a lawyer paying a third party to refer potential clients to them, provided that the arrangement is fully disclosed to the potential client (Rule 12.4.3), and they are aware that they do not have to accept an invitation by the lawyer to act for them.

It is important here that the disclosure is properly done so that the client is fully aware of the referral arrangement, and that nothing about the arrangement is false, misleading or deceptive, offensive or otherwise not permitted (Rule 36.1).

Any direct marketing or ‘cold-calling’ to seek out potential clients should only be done by staff of the law firm who think that they may be able to assist the potential client. Further guidance here is available in the Law Institute of Victoria Direct Marketing Guidelines.

So called ‘ambulance chasing’ is generally where someone approaches a person soon after they have suffered an accident, trauma or injury, and then encouraging them to seek help from a particular lawyer or law firm. If this is done in a matter that is likely to harass or oppress a person affected by the recent trauma then it may well breach the Rules (Rule 34.2).

Any breach of the Rules may lead to disciplinary action being taken against the lawyer. In serious cases this could impact on the lawyer’s future ability to practise. It is therefore paramount that the Rules are fully complied with, and not just given lip-service.

Solicitors and consumers of legal services with any concerns about how lawyers market their services, or who wish to make a complaint about something they have experienced, are encouraged to contact the Victorian Legal Services Commissioner on tel: 03 9679 8001 or 1300 796 344, or email admin@lsbc.vic.gov.au, or visit our website at www.lsbc.vic.gov.au

Fiona McLeay - Victorian Legal Services Commissioner CEO, Victorian Legal Services Board