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GAZETTE
JULY/AUGUST
198
Freedom to
Speak — or
Sell?
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.Heapplied 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
interest of the public or of the legal profession, or that
tends to harm the standing of the legal profession.
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.
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