Licensees and their firms need to be aware that the Code of Professional Conduct (the “Code”) has rules with respect to advertising and solicitation.
The following scenario and analysis consider the ethical obligations with respect to advertising and what that means for licensees and firms when they are soliciting work.
An IP firm run by licensees sends out a form letter to client leads generated from their website. The form letter states, without qualifying, that the firm “has an 80% success rate” and “can fast track any application”.
The Principle of the rules with respect to advertising in the Code states that
An agent may advertise services and fees or otherwise solicit work if the advertisement is
- demonstrably true, accurate and verifiable; and
- not misleading, confusing or deceptive or likely to mislead, confuse or deceive.
The rules state that the agent “must not use any description that suggests that they or another individual in their firm has academic or professional qualifications that they do not possess.” The Commentary to that rule provides a public interest justification for the prohibition, stating that “Clients often seek an agent with a certain background or certain skills. Those clients must not be misled by an agent holding out themselves or other members of their firm as having skills that they do not possess.”
Rule 9-2 reiterates the principle of the rules with respect to advertising, providing, in part that “In all cases, the representations made must be accurate (that is, demonstrably true) and must not be misleading.”
Rule 9-3 provides that the practice “must not indicate by way of advertisement, letterhead or otherwise that they have a professional office at a specified location if that is not, in fact, the case.”
Rule 9-4 provides that the practice may only advertise its fees if
- the advertising is reasonably precise as to the services offered for each fee quoted;
- the advertisement states whether other amounts, such as disbursements and taxes, will be added to the fees; and
- the agent strictly adheres to the advertised fees in all applicable respects.
The rules with respect to advertising require that the advertisement is “demonstrably true, accurate and verifiable”. The firm, by not qualifying where it has gotten its 80% success rate statistic from – e.g. was this of all applications the firm had before CIPO or just a certain type of application, etc. – has made a statement that is not verifiable. This statement does not necessarily offend the rules in the Code, but it does give rise to the question of whether the statement meets the requirements that the advertisement be “demonstrably true, accurate and verifiable” and the statement may need to be qualified in order to bring it in line with the rules in the Code.
These considerations may also apply to the phrase, “can fast track any application”. Again, without qualifying language, this statement may be “misleading, confusing or deceptive” and run afoul of the rules with respect to advertising.
Licensees need to be aware that the rules with respect to advertising in the Code set out a higher threshold than mere truth. Licensees must ensure their advertising is demonstrably true, accurate and verifiable and that it is not even “likely to mislead, confuse or deceive.”
Ultimately each licensee has to decide what the correct course of action is that will protect client interests and adhere to their professional obligations. Every circumstance is unique and it is up to the licensee to exercise their own professional judgement.