The King’s Counsel Title and the Need for a “Reasonable Evaluative Process”

The controversy over the Ontario government’s resurrection of the King’s Counsel designation is now in its third week. And interest in the controversy is not limited to the legal community alone; yesterday, the Toronto Star reported (at the top of its website): “Advertising ‘King’s Counsel’ titles may violate Ontario lawyers’ rules on misleading marketing, experts caution”.

Let’s explore that further.

The Star article quoted four experts: a law professor (Slaw legal ethics columnist Amy Salyzyn); two former Treasurers of the Law Society of Ontario (“LSO”); and the current Treasurer, Jacqueline Horvat, who, according to the article, had been offered the KC designation but declined it “based primarily on considerations around the lack of established criteria for the designation and the absence of a consultation process on the need to resurrect such a credential.” Professor Salyzyn remarked that the Treasurer’s decision was prudent, because accepting the title may have “risked giving credibility to a suspect government initiative”, which, “without established criteria and an independent evaluation process… appears to have been politicized”.

Professor Salyzyn further noted that it is not clear whether lawyers can refer to the KC title in their marketing because the Rules of Professional Conduct require lawyers’ marketing to be “neither misleading, confusing, or deceptive, nor likely to mislead, confuse or deceive” (Ontario rule 4.2-1; see also FLSC Model Rule 4.2-1).

One of the former LSO Treasurers tended to agree, stating that the KC title “is misleading to the public”. The other was quoted saying that “it would be a real stretch” to say advertising the KC title would violate the Rules.[1]

Although I tend to agree with the first, I think the second is right insofar as “it would be a real stretch” to say that any of these KCs will ever be found to be in violation of the rules on misleading advertising. It would indeed be surprising for the LSO—which declined to comment for the Star article—to assert that an honour awarded by the provincial government is “misleading, confusing, or deceptive”. But the Commentary to the LSO marketing rule suggests otherwise.

Ontario’s extensive Commentary on the advertising rules

On February 23, 2017, the Law Society of Ontario added lengthy Commentary to the rule on misleading advertising to provide “clear direction on the appropriate use of awards in advertising”.[2] Earlier that month,[3] the Star had published an exposé regarding the “awards” advertised by personal injury firms, singling out (among others) Brian Goldfinger, whose website stated that he had been voted “#1 in Client Satisfaction” and “#1 Personal Injury Law Firm” by “Elite Lawyers Ontario”—the Star had uncovered that Elite Lawyers Ontario was nothing more than a website created by Mr. Goldfinger himself.

Ontario’s advertising rule is substantively identical to the FLSC Model Rule, which has been adopted in most Canadian jurisdictions.

But while those other jurisdictions similarly adopted the brief Commentary provided with the Model Rule, Ontario’s February 2017 amendments added much more detailed guidance—including the following comments specific to marketing “awards”:

[3] Examples of marketing that do contravene this rule include […]

(e) referring to awards, rankings and third party endorsements that are not bona fide or are likely to be misleading, confusing, or deceptive.

…

[5] Paragraph (e) of Commentary [3] addresses marketing by reference to awards, rankings and third party endorsements. The terms “awards” and “rankings” are intended to be interpreted broadly and to include superlative titles such as “best”, “super”, “#1” and similar indications. Awards, rankings and third party endorsements which contravene this rule include those that:

(a) do not genuinely reflect the performance of the lawyer and the quality of services provided by the lawyer but appear to do so;

(b) are not the result of a reasonable evaluative process;

(c) are conferred in part as a result of the payment of a fee or other consideration rather than as a result of a legitimate evaluation of the performance and quality of the lawyer; or

(d) the lawyer could not have demonstrated, at the time of reference, were compliant with this rule.

Particular care should be taken in respect of awards, rankings and third party endorsements referenced in mass advertising, such as in newspaper and internet advertising and advertising on television, billboards, taxis, buses and the like. In such contexts, references to awards, rankings and third party endorsements must be particularly clear and straightforward as there is little opportunity for reflection or appreciation on the part of the potential client or to provide context.

References to awards and honours that are genuine reflections of professional or civic service do not contravene this rule. For example, a potential client may consider it useful to know that a lawyer has been honoured for their service by the Canadian or the Ontario government, the Law Society or a professional organization. However, the lawyer should take care to ensure that such awards and honours reflect a genuine and responsible assessment of the lawyer in the public interest.

In any event, any reference to awards, rankings and third party endorsements must comply with all of the provisions of Rule 4.2-1. [Emphasis added.]

In summary, this Commentary specifies that marketing “awards, rankings, and endorsements that are not bona fide” will be considered a violation of the Rules of Professional Conduct, and that the term “awards” is sufficiently broad to include using a title bestowed upon a lawyer. It further elaborates that it is a breach of the rule to advertise awards that “do not genuinely reflect the performance of the lawyer and the quality of services provided by the lawyer but appear to do so” or awards that “are not the result of a reasonable evaluative process”.

I was amused to see that the Commentary emphasized that “honours that are genuine reflections of professional or civic service do not contravene this rule”, using the example of where “a lawyer has been honoured for their service by the Canadian or the Ontario government” (this is immediately followed by the caveat that “the lawyer should take care to ensure that such awards and honours reflect a genuine and responsible assessment of the lawyer in the public interest”).

I suppose in preparing this Commentary the Law Society of Ontario assumed that honours granted by the government will be “the result of a reasonable evaluative process”. Regrettably, that does not appear to be the case with the recent selection of KCs.

What evaluative process?

In my view, the KC title could be characterized as “likely to confuse, mislead, or deceive” the public because it “do[es] not genuinely reflect the performance of the lawyer and the quality of services provided by the lawyer but appear[s] to do so”. That it has the imprimatur of the Ontario government is in this instance a bug, not a feature. But this simply begs the question—what does it mean for an award to “genuinely reflect the performance of the lawyer” and the quality of services they provide?

This condition is deceptively simple—and its assessment is necessarily subjective. The only other clue about what makes an award bona fide[4] is the note that awards will contravene the rule if they “are not the result of a reasonable evaluative process”.

Again, it is difficult to discern what the Law Society will deem to be a “reasonable evaluative process”, and there can be much debate about whether awards granted by various legal publications satisfy this requirement. But in the case of the latest group of KCs, lawyers and the public know nothing about what, if any, evaluative process was in place.

The press release sharing the list of new KCs states only: “The King’s Counsel designation is given to lawyers who have demonstrated a commitment to the pursuit of legal excellence in service to the Crown, the public and their communities.” Respectfully, this statement means very little. I suspect that most lawyers are committed to the pursuit of legal excellence in service to the public and our communities—and countless have demonstrated that commitment, in a variety of ways.

Surely, these awards were based on something more. But there were no calls for nominations. No selection criteria have been made public. Despite being the subject of controversy in the media for the past couple weeks, the government has yet to share any information about how they chose these 91 individuals. Speaking publicly on the issue for the first time yesterday, Attorney General Doug Downey said only that the people who received the title “are worthy recipients”.

This may be so, at least in some cases. But it does not mean there was a “reasonable evaluative process” to get there. And one would think that if there were in fact legitimate, reasonable selection criteria that would dispel the concern that the return of the KC designation was pure patronage, the government would have shared it by now.

Advertising King’s Counsel

To be sure, the Rules of Professional Conduct do not preclude lawyers from receiving dubious awards and honours—they are concerned with what awards and honours lawyers advertise. I do not suggest that the lawyers who recently received the KC designation ought not have accepted it (although I do commend Treasurer Jacqueline Horvat’s decision to decline it in the circumstances).

I have noticed that a handful of the new KCs who are in private practice are not currently marketing themselves with the title. As one example, although Marie Henein’s name is frequently dropped as one of the new KCs who is genuinely worthy of the honour, the title is conspicuously absent from her firm website.

I think this is a wise decision. It would be difficult for the recent recipients to justify marketing their KC title based on the text of the Commentary to rule 4.2-1 quoted above. Unless the government is keeping it a secret (which would be baffling), the titles did not result from a reasonable evaluative process. Moreover, without such a process, a strong case can be made that the titles do not genuinely reflect the quality of the lawyers’ performance and services.

It is inconceivable to me that the Law Society would seek to discipline a King’s Counsel for using their title. But it seems to fall squarely within the criteria set out in the Rules for advertising that is misleading, confusing, or deceptive.

It is troubling that the Ontario government appears to have resurrected the KC title to reward friends of the governing party, and that an honour bestowed by the provincial government may be characterized as misleading, confusing, and deceptive. It is also troubling that, although the LSO advertising rule (interpreted in accordance with its Commentary) captures use of the KC title, there is virtually no chance such a breach would ever be enforced.

If a rule cannot be applied to and enforced against everyone equally, there is likely a problem with the rule’s breadth, clarity, or arbitrariness. I will be curious to see if the Law Society of Ontario delves even deeper into the Commentary on advertising as a result.

________________

[1] The treasurers appeared to agree, however, that “the government really blew this one”.

[2] https://lso.ca/news-events/latest-news/latest-news-2017/law-society-limits-referral-fees-and-strengthens-advertising-rules-in-the-public-interest

[3] In fairness to the LSO, the advertising working group responsible for recommending the relevant amendments had already been working on the matter for about a year when the Star article was published, so this should not be taken to suggest that the amendments were a knee-jerk reaction to the press.

[4] Apart from the (fairly obvious) prohibition on marketing honours that were conferred in exchange for payment.