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Second opinions | Gabriel Latner

Thursday, February 17, 2022 @ 12:37 PM | By Gabriel Latner

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Gabriel Latner %>
Gabriel Latner

Fred Smith (FE to history) was a “bon-vivant” back in the day when, if you were rich enough, unchecked alcoholism was just a charming quirk. One night in 1907, he checked into London’s Savoy Hotel and proceeded to order a staggering quantity of champagne and oysters, to sustain him as he read through a deep stack of legal papers.

Fred, a barrister who would take the silk within two years (and a member of Parliament to boot), had been hired by a publisher accused of defaming the Lever Brothers soap manufacturers, claiming they were part of a cartel. (Cartels, of course, are bad because they restrict competition, at the expense of consumers — keep this in mind.)

In the morning, the champagne and oysters were all gone, and Fred gave the client his opinion: “There is no answer to this action in libel, and the damages must be enormous.” On the basis of that, the publisher paid Lever Brothers an unheard sum of 50,000 pounds to settle the case. I wonder if the publisher had known the process by which Fred reached that conclusion, whether they might not have sought a second opinion.

Many lawyers are bad at their jobs. Some are bad enough that their clients notice and begin to worry. Some cases are so complex, or so novel, that even competent lawyers’ prognostications can differ. Sometimes the potential consequences of a legal action can be so important, that, regardless of complexity, or faith in their chosen counsel, the client wants the comfort of a second professional’s advice.

And so it is no surprise that the Law Society of Ontario’s (LSO) official position is that “[t]he provision of second opinions is a valuable service to clients.”

What is surprising is that the LSO — alone among the provincial law societies — has banned lawyers from advertising second opinions, while paying lip service to the fact that lawyers are still allowed to provide this valuable service.

Introduced in 2017, the ban was motivated by concerns that lawyers, particularly within the personal injury bar, were using second opinions to “poach” clients from their colleagues. (I imagine it must have played out like when an emergency forces you stop at a new garage, and once under the hood, criticisms of your usual mechanic start to flow: “Ooh. See here, in the Statement of Claim? Full of holes. I mean, that entire section just has to go. And this motion, definitely not standard. Looks like it was slapped together out of old precedents and glue. I can fix it for you, if you want, but it’ll cost. I’ll have to backorder some facts and arguments.”)

There are a number of flaws with that reasoning, and the resulting decision — which, it must be reiterated, bans advertising a practice that the LSO recognizes is both legal and valuable to clients.

First, the ban makes the LSO look like a self-serving guild, primarily concerned with protecting the economic interests of its members by stifling competition, exactly like a cartel. Now, in my opinion, that’s exactly what the LSO is — but it doesn’t do to let the rubes know that. There’s an argument to be made for subtlety when fleecing the herd.

That subtlety, that carefully crafted image of the law society as a protector of the public, is hard to maintain in light of the committee reports that led to the ban:

In its review of current advertising practices, the Working Group has serious concerns that the marketing of second opinion services is not truly intended to market second opinion services, but rather is intended to attract clients who are already represented by counsel with the intention of having the client switch firms. 

In an earlier report, the committee noted that consumers have a right — and often a need — to pursue second opinions, and thus there was a need to “balance consumer rights with maintaining lawyer professionalism.” 

Isn’t that like a shepherd balancing the needs of the flock with the interests of the wolves? The sheep should always win. If the LSO is truly a consumer protection body, then even a modest consumer benefit should outweigh any concern that lawyers have about client poaching.

The committee sought to mollify any concerns about the impact the ban would have on consumers by noting that there was no evidence that consumers were unaware of the availability of second opinions — almost as if the advertising worked! There is certainly no chance that banning advertisement might subsequently reduce public awareness, right?

Optics aside, there’s another problem with the ban: it is obviously and irredeemably unconstitutional.

To recap, the Charter applies to the law society, and s. 2’s protection of freedom of expression extends to commercial advertising (Law Society of Upper Canada v. Skapinker [1984] 1 S.C.R. 357; Irwin Toy Ltd. v. Quebec (Attorney General) [1989] 1 S.C.R. 927). As it restricts expression based on content, the ban is presumptively unconstitutional unless it can be justified under s. 1 of the Charter, which permits “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Reasonable limits are those which are (at the very least):

1. necessary to achieve an objective “of sufficient importance to warrant overriding a constitutionally protected right or freedom,” and,

2. proportional (i.e., the right is limited no more than is necessary to achieve the objective).

The ban fails on both counts. Protecting lawyers from competition is not a legitimate public interest, let alone an important one. Remember, cartels are bad, because competition is generally considered good for consumers, which is why antitrust laws (which also infringe on Charter rights) are allowed in the first place. Consumer protection — especially the protection of vulnerable consumers — can justify advertising restrictions. But to make that case, the LSO would need to defend the ban on the grounds that it somehow protects consumers — that being poached somehow harms the client. That a client doesn’t know enough to know whether or not — should switch counsel mid-case. That clients aren’t sophisticated enough to withstand the mighty coercive power of lawyer advertising.

The questionable nature of its purpose aside, the ban isn’t proportional. There are less-infringing alternatives. First, as the concern was driven by behaviour within the personal injury bar, the ban could have been limited to second opinions in personal injury cases. Second, lawyers could be prevented from using second opinions as an opportunity to “steal” clients by a narrower rule that prohibits the lawyer who offers a second opinion from taking primary carriage of the case. This approach — which at least could be presented as a step taken to ensure that second opinions are offered impartially, and without an eye to personal gain — was explicitly considered and rejected by the committee.

Banning lawyers from advertising second opinions will not rank as one of history’s great censorial injustices. In a world where books are banned and burned, and journalists imprisoned and murdered, it’s hard to get too worked up about a rule limiting a lawyer’s right to advertise.

But I think we, as lawyers, should care at least a little.

We should care that it makes us look self-serving.

We should care that it makes it look like the LSO — the official group representing us all — doesn’t want lawyers criticizing each other.

We should care that the LSO took the public position that protecting lawyers from competition was a good to be weighed against the protection of the public.

We should care that official lawyerdom adopted a rule that a first-year law student (or a high school student who paid attention in civics) could have told them is unconstitutional.

A rule that makes Ontario’s lawyers look selfish and stupid is not in the best interests of the profession, or the public.

At least, that’s my opinion. Ask another lawyer for theirs.

Gabriel Latner is a litigator and partner at Advocan Law.

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