Law Times

Law Times • December 8, 2014 Page 13 www.lawtimesnews.com proceeding and it certainly should not extend to a lawyer's marketing strategies. Arguably, defence lawyers that advertise by promoting the fact of unexplained or inexplicable acquittals of individuals that are implied or appear to be factu- ally guilty of harmful offences are not encouraging the public to respect the ad- ministration of justice." Craig also takes issue with lawyer web sites that imply aggressive advocacy in sexual assault cases, a sensitive topic in light of the current debates around the reticence of victims to report sexual as- saults. In her view, implying aggressive advocacy may contravene law society rules on marketing. She noted, for ex- ample, the web site of law firm Adler Bytensky Prutschi Shikhman, which pointed out that "in many sexual assault allegations, the only evidence comes from a single complainant. It is therefore critical that your lawyer be capable of conducting a thorough and exhaustive cross-examination. Depending on a host of factors, this may call for light sugges- tive questioning or aggressive confronta- tional examination." According to Craig, even if lawyers have a duty to engage in aggressive cross- examination, "that shouldn't translate into your marketing platform." "No one is constitutionally entitled to any defence possible," she continues. "Whatever we rely on as the legal pro- fession to justify that kind of conduct, that doesn't apply to marketing." For his part, Edward Prutschi, a lawyer at Adler Bytensky Prutschi Shikhman, emphasizes defence counsel's duty to be as effective as possible. "If we don't do that, we're faulting our client," he says, noting his firm adopts the style of cross-exami- nation that's appropriate for the circum- stances. In some sexual assault cases, he says, the complainant may be honest but mistaken while in others may be deliber- ately lying. His firm's lawyers adjust their strategy based on the situation at hand, according to Prutschi. Another lawyer named in the paper who spoke on condition of anonymity says he suspects Craig's concerns "ref lect a general underlying disapproval by so- ciety . . . of the type of work that defence lawyers sometimes do." "Naturally, lawyers will want to ad- vertise that they have experience in this area of the law and that they have in fact obtained favourable results for many of their former clients," he says. "While the author takes issue with such advertising sometimes appearing to cross the line or, at least, be in a grey area, I, for one, can say that there is certainly no intention on my part to violate any of the rules of the law society," he adds. Davis LLP's Gavin MacKenzie, a law- yer who has written about ethics in the legal profession, says Craig's paper makes a "valuable contribution to the discus- sion of how our profession's rules of professional conduct and their enforce- ment must be continually monitored and updated to adapt to both changing public expectations and technologi- cal developments." He says that while amendments to the rules have includ- ed commentary suggesting aggressive advertising may contravene them, "I am not sure that advertising that im- plies that the lawyer is aggressive should necessarily be prohibited. I read in this morning's newspapers that our new- est Supreme Court of Canada justice is known as an 'aggressive' litigator, and it was undoubtedly meant as a compliment. In my experience, clients involved in liti- gation want their lawyer to be aggressive, in the sense of assertive or vigorous, rath- er than in the sense of belligerent or quar- relsome. But there is a difference between being aggressive and boasting on your web site about how you have succeeded in having sexual assault charges being with- drawn by intimidating a complainant by threatening to introduce evidence that is in all likelihood inadmissible." MacKenzie agrees with Craig's con- cern that the rules are out of date when it comes to the prevalence of online mar- keting versus traditional avenues like phone directories. "Web-based market- ing has changed the landscape signifi- cantly as it allows for lengthy blogs, testi- monials, and accounts of prior cases on which the lawyer acted," he says. "Word counts and space limitations are a thing of the past. I agree with Prof. Craig that the regulation of commercial expression by lawyers should be reassessed in the Internet era." Among Craig's other concerns are lawyer web sites she says appear to trivi- alize sexual violence. One web site, for example, noted a client had had a "ward- robe malfunction" that caused his "penis [to] escape." The client, she noted, got a conditional discharge in exchange for a guilty plea. "Advertising by lawyers that invokes outdated assumptions about sexual vio- lence, such as the notion that sexual as- sault is perpetrated by lascivious men un- able to control their natural sexual urges, and that refers to 'bedding women' in the context of a sexual assault allegation, may not be consistent with the requirement that marketing by lawyers be demonstra- bly true and in keeping with high stan- dards of professionalism," Craig wrote in summarizing her concerns. Craig's paper, of course, comes at a sensitive time when it comes to the issue of sexual violence, something she says "the law has played a significant role in perpetuating" the stereotypes about. For his part, one of the lawyers whose web site is subject to the paper's criticism says that while defence counsel do an important job in protecting the rights of their clients, Craig also has a right to air her concerns. "If the author takes offence with criminal defence lawyers doing this for a living and occasionally winning cases involving persons who appear to be morally guilty but in the end are found to be legally not guilty and then advertising that fact in order to promote themselves, then I cannot fault her or anyone who shares this belief," he says. "After all, we are also entitled to freedom of speech." Craig, who emphasizes her goal was to raise the issue rather than target indi- vidual lawyers, notes several people have already removed some information from their web sites. "When you see lawyers doing that, you see it's striking a chord with them," she says. 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