The Gazette 1983

JULY/AUGUST

198

GAZETTE

interest of the public or of the legal profession, or that tends to harm the standing of the legal profession.

Freedom to Speak — or Sell?

Rulings of the Law Society provided that it was "improper for a member to advertise in any publication or on radio and television or in any other media of communication". Members were permitted to place a card in a directory, law reports, legal magazine or review or text intended primarily for circulation amongst lawyers. They were also permitted to announce in a local newspaper commencements of practice, changes of address, etc. The rulings concluded that the "best advertisement" for a lawyer was "the establishment of a well merited reputation for personal capacity and fidelity to trust." Donald Jabour, a member of the Society, placed four advertisements in local papers stating that he was opening a law office providing legal services at prices middle- income families could afford. A sample of prices was included. He also installed an illuminated sign measuring 3 feet in height by 16 feet in length on the exterior of the office building in which his office was located. Jabour was disciplined for 'conduct unbecoming a member of the Society'. He sought a declaration that the rulings and orders were void and an injunction restraining the Society from implementing suspension of his licence to practice. A substantial part of the case turned on whether the Combines Investigation Act (RSC 1970, c.23) applied to the Law Society (it did not), but the major point of interest to us in this jurisdiction was Jabour's argument that the rulings which prohibited him from informing the public about the type and cost of the legal services he pro- vided were a violation of his right to freedom of speech. The Supreme Court of Canada was emphatic that freedom of speech was valued as a fundamental right in Canada. This right was, however, subject to various restrictions, such as laws against defamation, sedition and blasphemy, etc.Free speech, per Lord Wright in James v. Commonwealth of Australia [1936] A.C. 578, 627, meant "freedom governed by law". The Court held that they were dealing with the right of "economic free speech" and that the provinces of Canada were entitled to regulate the ethical, moral and financial aspects of a trade or profession within its boundaries. The action taken against Jabour by the Law Society was authorised by the Statute, indeed "the regulation of advertising is an ongoing function of the Benchers under the statute". The reduction of the ability of a member of the Law Society to make public announce- ments concerning the practice of law was not, therefore, an unlawful violation of freedom of speech. • EDITORIAL NOTES: 1. It will be recalled that it was upon the freedom of speech provisions contained in the First Amendment to the U.S. Constitution that the Supreme Court based its decision in the landmark Bates & O 'Steen v. State Bar of A rizona case, where the Bar's restriction on lawyer advertising was declared unconstitutional. 2. The restrictions on advertising by Solicitors in the Republic of Ireland were investigated by the Restrictive Practices Com- mission in 1980/81. It is understood that the Commissioner's report is now with the Minister. 127

by Anthony Kerr, Lecturer in Law, U.C.D.

I F a solicitor were to advertise his/her services, dis- ciplinary action would undoubtedly be taken which could result in the person concerned being struck off the Roll.Readers of the Gazette therefore will note with interest the conclusion of a Mr.Jabour's legal proceedings against the Law Society of British Columbia. Disciplinary action had been taken against him by reason of his having advertised his services in local newspapers and having installed an illuminated sign.He applied for a declaration that the rulings and orders of the Discipline Committee of the Law Society of British Columbia were null and void as being, inter alia, in violation of his freedom of speech. The judgment of the full Supreme Court of Canada (Laskin C.J.C., Martland, Ritchie, Dickson, Beetz, Estey, Mclntyre, Choinard and Lamer JJ.) was delivered by Estey J. on August 9, 1982. It is now reported at 137 D.L.R. (3d) 1. The structure of the Law Society of British Columbia is familiar. Its membership comprises all those persons called to the Bar in British Columbia who have remained in good standing under the Barristers and Solicitors Act (R.S.B.C. 1979, c.26) and applicable regulations, together with retired members. The Society is governed by the Benchers, being 23 members elected by the membership together with the Attorney-General of the province, as an ex officio member. The Benchers are directed by statute to "govern and administer the affairs of the Society" and to take "such action . . . as they may consider necessary for the promo- tion, interest, or welfare of the Society". The Benchers are also directed to establish a discipline committee for the investigation into the conduct or competence of members and for determining whether a member (or former member) has been guilty of, inter alia, "conduct unbecoming a member of the society". Such conduct is defined as any matter, conduct or thing that is deemed, in the judgment of the Benchers, to "be contrary to the best