KINGSTON, Jamaica — The Supreme Court, in a landmark ruling last week, has determined that some of the cannons which govern the legal profession that prohibits advertising by attorneys should be struck down and viewed as being unconstitutional. 

The decision was made in relation to a suit brought by veteran attorney-at-law Vaughn Bignall, who challenged the General Legal Council (GLC) in relation to decisions it took relative to advertising his law firm in the media and on social media.

In the 135-page judgment, written by Supreme Court judge, Justice Carole Barnaby, it was noted that, under the Legal Profession Act of 1972 and the Canons of Professional Act of 1978, lawyers were banned from advertising their services, but an amendment to the Canon in 2016 “permits” them “to advertise in connection with his (or her) practice, within certain limits”.

Bignall contended that a number of the provisions of the advertising regulations of the GLC and processes taken pursuant to them breached a number of the rights guaranteed to him by the Constitution of Jamaica, specifically the Charter of Fundamental Rights and Freedoms. 

GLC had conducted “enquiries” into complaints that “Bignall Law had engaged in advertising thought to be in breach of advertising regulations”.

Among the complaints were that Bignall, through his company, was advertising on social networking websites Facebook and Instagram, television stations and in the Gleaner newspapers published on December 17 and 24, 2017.

Further, the company also advertised during the airing of the Grammy Awards on TVJ on January 28, 2018, which was described by the chairman of the GLC as “particularly egregious”.

Following those enquiries, a decision was made by the GLC on September 26, 2018, through a number of orders, instructing Bignall Law to discontinue any further advertising and seek approval of the council to resume any such advertising.

But the firm allegedly continued to advertise on Instagram on or about December 4, 2018, and continued “to be so published in July 2019,” according to the judgment.

The purported breach of the Canons resulted in the GLC, through its chairman, making a complaint to the disciplinary committee against Bignall.

But Bignall filed a suit in the Full Court seeking various claims. 

In its conclusions, the Full Court panel, comprising Justice Barnaby, Justice Leighton Pusey and Justice Lisa Palmer-Hamilton, said it was of the view that, in general, “the objectives and rationale of the Advertising Regulations are meritorious and relevant”.

“However, our concern lies with some aspects of the Regulations, in particular, the aspects which empower the General Legal Council to order the discontinuation or modification of activity, which it believes to be breach of the regulations,” the judges said.

“The court observed that the General Legal Council attempted to deal with the claimant fairly in enforcing these powers, but could not overlook the offending aspects of the Advertising Regulations, despite the attempts to provide procedural fairness,” they added.

On that premise, the court ordered that some of the canons of the Legal Profession Act are not demonstrably justified limitations on the rights to freedom of expression guaranteed by the Charter of Fundamental Rights and Freedom, and are therefore unconstitutional, null, void and of no effect.  

The judges also decided that the directive by advertising committed of the GLC, “whereby it demanded that Bignall Law discontinue advertising which it considered to be breach of the Legal Profession (Canons of Professional) Ethics Rules is ultra vires the Legal Profession Act”.

The Full Court also decided that a GLC hearing, which had resulted in a September 26, 2018 order, breached “the claimant’s right to a fair hearing”, resulting in that order being unconstitutional, null and void and of no legal effect. 

The judges, however, refused the claimant’s request for a declaration that sections of the Canons breached the right guaranteed to him under section (13) (3) of the Charter of Fundamental Rights and Freedoms.

The court rejected, too, Bignall’s claim for “an injunction restraining the General Legal Council whether by itself, its servants and/or agents, or otherwise, from commencing or continuing any disciplinary proceedings of any kind whatsoever against him.”