COMMUNICATIONS AND MARKETING

BY ADVOCATES IN UGANDA
• Communication can be defined as the process
of conveying ideas and feelings to produce a
given result.
• Communication is both verbal and non-verbal.
• Communication is important to an advocate,
as the advocate is in constant communication
with clients, opposing parties, judges, court
officials and others.
 Communication Basics

1. Listening
• Listening is giving attention in order to hear and
understand the meaning of a message.
• Listening is important because it helps one:
i. gather information;
ii. understand the other’s interests and concerns;
iii. determine what is needed
iv. prepare a proper response;
 Cont’d
iv) determine how the other feels;
v) Note inconsistencies in what is being said;
and
Iv keep a sufficient record of prior discussions
for future reference.
 Good listening behaviour
includes:
• Facing and maintaining appropriate eye
contact with the speaker
• Looking interested in what is being said;
• Appearing patient
• Asking relevant questions
• Showing empathy and understanding of
feelings expressed.
Poor listening behaviour includes:
• Staring away;
• Looking bored and acting impatient;
• Frowning at the person speaking;
• Turning your body away;
• Getting up and walking away;
• Whispering or passing notes to other people;
and laughing inappropriately.
 Cont’d
• Listening to the client enables the advocate to
understand the nature of the client’s problem
• Make further inquiries where necessary, and
understand the client’s instructions.
• The advocate can then meaningfully
collaborate with the client in developing a
course of action that will best serve the
client's needs and desires.
 Cont’d
• Failure to listen can result in a legal approach
and strategy that is not tailored to the client.
• Listening to court is crucial because comments
from court can be very telling, and instructions
from court should be precisely followed.
 2. Letter writing
• Letters written in anger can be damaging to
relationships and reputations
• Can show a lack of courtesy on the part of the
writer
• Can lead to a break down in communication
and failure to resolve any matter amicably.
• Advocates should constantly know that their
clients’ problems are not their problems
 3. Use of Email
• Use of email is one of the fastest and least
expensive ways to communicate with clients,
opposing counsel, and third parties.
• Advocates should take special care to edit,
revise and carefully consider their email
communication.
• Emails often find their way into the hands of
unintended parties.
 Cont’d
• Electronic discovery techniques can uncover
emails that one thought destroyed or deleted
• It is very common for emails to end up in court
as key pieces of evidence.
 Communication and interaction with
witnesses
• An advocate may interact with witnesses for
purposes of obtaining information that may
assist him or her in preparing and presenting a
client's case.
• The interaction should be limited to obtaining
factual information and not for fabricating
evidence.
• Reg. 18
Communication with opposing parties, and
their employees
• An advocate may communicate with an
opposing party or his or her employees for
purposes of obtaining information concerning
a client’s matter.
• However, where such party has legal counsel,
an advocate should communicate with an
opposing party through that party’s advocate.
• If the party is not represented the advocate
may communicate directly with the party.
 Cont’d
• The advocate should also not interview an
opposing party without the consent and
possibly the presence of his or her advocate.
• During trial, however, an advocate has the
right to cross examine an opposing party and
his or her witnesses.
 Communication with judicial officers
• Judicial officers must be treated with utmost
respect, both in and outside the court.
• How do you address judicial officers?
• If any information, other than pleadings,
needs to be brought to the attention of a
judicial officer, a formal letter should be
written.
 Cont’d
• Advocates must be careful to avoid ex parte
communications with judicial officers.
• Opposing counsel should have the opportunity
to be present at all exchanges with the court.
• This rule against ex parte communication also
applies to written communication.
• Formal letters to court should be copied to
opposing counsel.
 Communication in the Public Sphere

Publications by advocates
• Regulation 23 gives restrictions on
publications by advocates.
 Analysis of Regulation 23
• The restriction to legal topics in sub-regulation
(2) above is arguably an infringement on the
right to freedom of speech and expression as
provided for in the Constitution of the
Republic of Uganda.
• This broad limitation on freedom of speech is
dubious in a free and democratic society.
 Cont’d
• Similarly, the requirement that the Law
Council must authorize the disclosure of an
advocates name is a prior restraint on
freedom of speech and expression, which also
offends the Constitution.
• Moreover, advocates are the most
knowledgeable members of society with
respect to matters of the law.
 Cont’d
• As matters of the law are in the public
interest, the gagging of the foremost experts
on the subject is a serious impediment on the
public’s knowledge of the law and legal
matters.
How advocates in Uganda use the media

• Despite the limitations on public communications,

advocates in Uganda are actively involved in public
dialogue concerning legal and other matters.
• The Executive Council of the Uganda Law Society
(ULS) calls press conferences, or makes press
statements to comment and also inform the
general public on issues of public interest, such as
human rights, rule of law and good governance
 Cont’d
• This is in line with the duty of the ULS towards
the public: to protect and assist the public in
Uganda in all matters touching, ancillary or
incidental to the law.
• The Council uses the media to inform the
public about the role of advocates in the
administration of justice.
 Cont’d
• Despite official limitations on public
communication, Ugandan advocates tend to
find ways of communicating in public forums.
• Many advocates write articles in newspapers
and other media on topical issues and disclose
their names, the fact that they are advocates,
and sometimes the name of their law firm.
 Cont’d
• Other advocates often give interviews to
the media about cases they are handling,
especially where the media has given the cases
publicity.
• Advocates appear on radio talk shows to
educate the public on matters of public interest.
• In other cases, advocates issue press statements
on behalf of their clients concerning matters
they handle.
 Cont’d
• Advocates also communicate through the
media by publishing court orders, attending
press conferences and responding to media
interviews and inquiries.
• Given the extensive public communication by
Ugandan advocates, it appears there is a
disconnect between the letter of the law and
the activities on the ground
 Cont’d
• This is problematic both for those who violate
the law due to potential sanctions and for
those that choose to follow the law due to
the fact that they are operating on an uneven
playing field in terms of public exposure and
public influence.
 Res Sub Judice
• Sub judice is a Latin word which means ‘under
judgment’ or ‘under judicial consideration.’
• It is a common law rule that prohibits the
publication of matters before court.
• The rule applies to parties to the case, their
lawyers and the entire public.
 Cont’d
• However, the rule allows fair and accurate reporting
by the media on the factual content of the matter
provided in doing so they do not prejudge it.
• Violation of the rule amounts to contempt of court.
• The sub judice rule reinforces the right to a fair
hearing as provided for in Article 28(1) of the
Constitution of the Republic of Uganda.
• Regulation 20
 Cont’d
• The exception, however, is that advocates can
make such comments in an educational or
academic context, in line with academic
freedom in institutions of learning as
stipulated in Art. 29 (1) (b) of the Constitution
of the Republic of Uganda.
Rationale behind the Res Subjudice Rule

• The sub judice rule seeks to avoid bias,

prevent the prejudgment of cases and
promote fair trials.
• The rule prevents the ‘back-door’ entry of
inadmissible evidence which would
compromise the fairness of the trial process
through exposure with judges, assessors or
witnesses.
 Cont’d
• It also protects against the appearance of
decisions that seem to be based on published
material so as not to undermine the public’s
confidence in the justice system.
• Advocates making public statements on legal
matters infringe on the sovereignty and
autonomy of the judicial process.
 Cont’d
• Engaging the media in a legal matter
undermines the judicial system. Justice should
not only be done, it should be seen to be
done.
• The media can be used to wage a campaign
for or against any of the parties to the case.
 Actions that would amount to breach of
the rule of sub judice
• Statements about the anticipated result in the
matter.
• Statements urging the court to decide the
matter in a particular way.
• Comments about the strengths and
weaknesses of witnesses and other evidence,
a party’s case or issue in the case.
 Analysis of the rule
• In Uganda, advocates, whether having
personal conduct of the matter before court
or not, have commented on such matters
especially when interviewed by the media.
• On some occasions, they have expressed
personal opinions which can prejudice the
matter.
 Comparative analysis with rules in other
jurisdictions
South Africa
• The Uniform Rules on Professional Ethics are
not different from Uganda’s except that
advocates in South Africa are permitted to
make media comments on pending matters
provided they are not prejudging.
• This makes sense as advocates are best
equipped to understand and explain such
issues.
 England and Wales
• England has guidelines on media comment.
• Although barristers are not required to speak
to the media, with the consent of the client a
barrister can inform the media about the
client's view of the proceedings or what their
client is seeking to achieve.
 Cont’d
• Similarly a barrister can inform the media
about the facts of a particular case or the
issues that will be discussed without giving
personal views about the merits of the case or
the appropriate outcome.
• Guidelines are to the effect that barristers
should exercise care while commenting on
cases in which they have been involved.
 ADVERTISING
• Advertising is the act of drawing attention to a
product, service, or event through the mass
media in order to promote its awareness,
sale or attendance.
• Common advertising media includes:
billboards, newspapers, directories,
magazines, public transport, the Internet, etc.
 Cont’d
• Advertising in almost all jurisdictions has some
form of limitation either in content or mode.
• This limitation is intended to protect
consumers and maintain the repute of the
legal profession.
 Limitations on Attorney Advertising in
Uganda
• The Advocates Act and related regulations
limit attorney advertising by prescribing how
certain activities are to be carried out such as,
the size and content of the name plate or sign
board, firm name, publications by advocates.
• Sec. 74(f) of the Act
• Regulation 25
 Cont’d
• This Regulation and in particular paragraph (2)
permits advertising of the advocate’s name,
firm, or the fact that he or she is an advocate
in a general directory or guide provided it is
not distinctive so as to attract any undue
attention.
• On the other hand, the regulation appears to
prevent advocates having their name listed in
a special directory.
 Cont’d
• However, what constitutes “heavy” and
“distinctive” is not defined, suggesting that
this can only be determined on a case-by-case
basis.
• Limited advertising is also permitted by way of
the law firm name, nameplate or sign board.
 Arguments for limiting attorney
advertising
• Protection of the public and the dignity of the
profession.
• Advertising can be a forum for dubious claims
that can mislead potential clients and erode
the culture of professionalism among
advocates.
• Advertising can also cheapen and
commercialise the profession.
 Arguments against Limiting attorney
advertising
• Legal practice is a business.
• Advertising is core to business development. It
is an important medium for communicating
with the public and informing potential
customers of services offered.
• Limitations on advertising can block new
entries in the market place and benefit
established firms.
 Cont’d
• This greatly hampers competition in the legal
market place, which is unjustified in light of
the tangential benefits of such limitations.
 What is in practice?
• Law firms host websites with information
ranging from the partners, and other
advocates in the firm including their
photographs, areas of specialization, reports
and descriptions of matters handled by the
firm and insights about other activities and
aspects of the firm.
 Cont’d
• Based on the existing law and regulations,
much of the self-serving information on these
websites is highly suspect and probably in
violation of present standards.
 Cont’d
• Others might argue that websites fall outside
of the ethical rules because they are not
specifically addressed in the Advocate’s Act or
the Advocates (Professional Conduct)
Regulations.
• However, this argument fails when one
considers the ban on all advertising except as
permitted by the Law Council.
 Cont’d
• Law Council is yet to provide the advocates
with guidelines on online advertising. Given
the language of the Regulation, perhaps the
most prudent practice for advocates would be
to submit their web pages for approval prior
to posting.
 Way Forward
• There is need for the profession to grow with
the changing professional and business
environment if it is to remain relevant, and
become competitive locally and
internationally by taking advantage of
technological and other innovations.
• With cross-border practice, law firms have
formed working relationship with other firms
abroad and sometimes outsource.
 Cont’d
• Global Chambers list what they consider
reputable law firms internationally, and
members of the public consult these
publications when seeking legal services
Attorney Advertising in Other Jurisdictions

• The prohibitions on legal advertising have

come under considerable challenge both
locally and internationally.
• Some are critical of the lack of enforcement or
failure to take action where the rules against
advertising have been flouted.
 Kenya
• The ban on advertising has been the subject of
a petition in the High Court of Kenya
(Constitutional and Human Rights Division) in
the case of Okenyo Omwansa George & Anor
v Attorney General & 2 Ors.255
 Cont’d
• The petitioners in the Okenyo case challenged
the constitutionality of the prohibition on
attorney advertising as provided in Rule 2 of
the Advocates (practice) Rules made under the
Advocates Act (Chapter 16 of the Laws of
Kenya) on the ground that the said Rule
imposes unreasonable restrictions that bar
advocates from advertising.
 Cont’d
• The petitioners sought a declaration that Rule
2 is in conflict with, inconsistent with and
contravenes the Constitution of the Republic
of Kenya and is therefore null and void.
 Cont’d
• They argued that Rule 2 contravenes :
 The right of access to information because it
constrains a consumers right to access
information regarding where, when, from,
whom and how to get the services of an
advocate and the advocate’s areas of
proficiency.
 Cont’d
 The denial of information is a denial of public
access to justice, a right guaranteed under
Article 48 of the Constitution.
 Cont’d
• The 3rd Respondent, opposed the petition on
the grounds of:
 Guarding against unnecessary competition
 Preventing the commercialisation of legal
practice
Preserving the dignity of the legal profession.
 Cont’d
• Court held :
The prohibition of advertising under
Rule 2 in essence constrains the
consumers of legal services to such
information as is necessary for them
to make informed choices.
 Cont’d
 Court noted that “a consequence of the ban
on advertising of legal services is that the
consumer is left in the dark about the nature
and extent of legal services that can be
offered by an advocate thereby undermining
the right of access to justice.
 South Africa
• Advocates are permitted to advertise, and the
rule specifically provides that “an
advertisement must be factually true and
must not be of a kind that is or might
reasonably be regarded as: false, misleading
or deceptive; in contravention of any
legislation; vulgar, sensational.”
 England and Wales
• Permits advertisement for as long as it does
not mislead the public or diminish public
confidence.
 USA
• Attorneys can take out television, radio, and
billboard adverts among other forms of
advertising.
• The adverts are flashy, eye catching and often
very competitive in character and content.
• In most states, the substantive standards are
very similar to those in England and Wales, and
there is a requirement to submit all advertising
and web content to a review panel for approval.
 Critique of the Rules
• In some instances where the rules against
advertising have been blatantly breached, the
Disciplinary Committee of the Law Council has
not taken disciplinary action against the
advocates.
• It can be argued that in those instances,
perhaps the adverts have not hurt the
profession in any substantial way.
 Cont’d
• The failure to take action may also signal a
silent recognition of the change that the
profession wishes to see
• Due to the increased use of information and
communication technologies in recent years,
dynamic and massive changes in the business
environment, advertising should be allowed
within prescribed limits that enhance
professional growth.
 Cont’d
• New rules therefore need to be put in place,
and the rules in England and Wales are
instructive.
• If an advocate wishes to advertise himself or
herself as an expert in a particular area, clear
criteria for expert status should be developed
subject to approval.
• Here much can be learned from the model
developed in South Africa.
 Touting
• Touting is the attraction of business or clients
in an unfair manner.
• Touting can take many forms including:
• Directly approaching clients and seeking
instructions from them,
• Instituting a suit without proper instructions,
and soliciting clients of other advocates.
 Cont’d
• Sec.74,75, Reg. 22 prohibit touting.
• An advocate who breaches provisions of the
Act and the Regulations is subject to
disciplinary proceedings for professional
misconduct.
 Procurement of services
• Procurement of services, including legal
services, by businesses and organizations has
changed in recent years.
• Advertisements appear in the media,
especially newspapers and the Internet, calling
upon persons or firms to bid for legal services.
• Does an advocate’s response to a bid
amount to touting?
 Cont’d
• The Public Procurement and Disposal of Public
Assets Act, 2003265 and the Regulations
require public entities to issue bid notices,
unless otherwise exempted, for works,
services, supplies or any combination thereof.
• This means that any public entity requiring
legal services must comply with the said laws.
 Cont’d
• Therefore, is the case of Re A solicitor,where it
was held, “the client may seek him, but he
must not seek the client,” still appropriate in
current circumstances?
 Law Firm Name, Nameplates or
Signboards
• Regulation 24 prescribes strict limitations on
what an advocate can communicate on a sign
plate and goes well beyond signage.
• The Regulation touches on letter head and firm
names as well.
• This is generally taken to mean that the name
plate or sign board should not contain artwork,
the size of the letters should be regular, and
there should be nothing flamboyant in design.
 Cont’d
• In 1977 name plates, sign boards and
letterhead were the key mediums for law firm
branding.
• Today websites, business cards and flyers are
common means of branding.
• There is a clear need to revise the Advocates
(Professional Conduct) Regulations to account
for these modern channels of brand
development.
 Generic names
• A generic name is a name other than the
name of a partner of a law firm. The
regulations require that,
1) the generic name includes the word
“advocates” at the end of the law firm name
2) the names of all the partners be
conspicuously stated side by side with the
name plate,
 Cont’d
3) the law firm letterhead should include the
partners names and qualifications and if they
cannot fit on the letterhead, a reference as to
where they can be found should be included
on the letterhead.
• Furthermore, that a generic name shall not:
1) make any reference actual or derived, to any
symbolic, cultic, political, religious, sectarian,
discriminatory or specialty classification;
 Cont’d
2) be offensive; directly or indirectly associated
with or suggest any connection with any
government, parastatal or a non-
governmental organisation;
3) or be misleading.
• Generic name must be approved by Law
Council before being used or registered by the
Registrar General
 MARKETING
• It encompasses all the activities of the
business.
• Everything that is done in a business is
marketing because all of the activities of a
business can affect how the customer
perceives the business.
• Advocates must practice law and conduct
business in a manner that attracts, impresses
and retains clients.
 Cont’d
• However, advocates must appreciate that there
are limitations on marketing activities within
the legal profession.
• Many law partners desire that their firms
outlast their own legal careers.
• In this respect, appropriate marketing
strategies will have to be adopted.
• It is important to market yourself with integrity
 Legal Marketing Strategies

Publishing
• Through publishing an advocate can present
himself or herself as being knowledgeable on
a subject matter and well equipped to assist
clients in that area of the law.
 Cont’d
• To ensure that publication is an effective
marketing strategy, articles should be well
written and should cover topics relevant to
your desired practice.
• The articles should also be accessible to the
target audience and written at a level that
demonstrates expertise while still being clear
and comprehensible to the target audience.
 Seminars
• Seminars present advocates with the opportunity
to demonstrate and share knowledge and
expertise.
• By serving on panels at seminars, advocates can
raise their profile among their peers and potential
clients.
• Other advocates can be a good source of referrals
especially when they view you as an expert in an
area of the law in which they are not comfortable.
 Assisting the Judiciary
• Assisting the judiciary presents an opportunity
for advocates to gain expertise and raise their
profile.
• Advocates in Uganda have assisted the
judiciary by volunteering as court mediators
thereby assisting court in helping parties
resolve their disputes.
 Positioning yourself as a specialist or
expert
• An advocate who undertakes further training
and gains practical experience in a particular
legal field can position him or herself as an
expert.
• ULS organises CLE seminars around new legal
or business areas, emerging topical issues, and
regional and international trends in law or
business.
 High Profile work
• Undertaking high profile work, such as serving
on a commission of inquiry, being part of a
team that will undertake a special task, or
carrying out commissioned research,
generates publicity and introduces you to
potential clients.
 Pro bono Opportunities
• Pro bono work can also establish you as an
expert and a capable advocate among those
whom you serve and with whom you interact.
• In addition, advocates conducting pro bono
work sometimes receive media attention and
public notoriety that can boost a legal career.
• Pro bono clients may also refer paying clients
to their advocate
 Client Survey for feedback
• A client survey is aimed at obtaining
information about how your clients perceive
you, your practice, their legal needs, and
whether they are satisfied with the services
you offer.
• Client survey responses give an indication of
areas that need to be improved upon, so you
have an opportunity to put right a problem
before the client leaves for another
 Networking
• Networking activities include joining social
clubs or associations either within your local
community, national or international and
professional bodies.
• The goal of networking is to meet people with
whom you can work for your mutual benefit
or who will refer clients to you.
 Conclusion
• Communication is a crucial aspect of legal
practice on several levels.
• Advertising and marketing present special
communication challenges. Advocates must be
knowledgeable about the limitations and
restrictions applicable to such communications.
• The current rules concerning advertising and
marketing activities are somewhat dated and
out of touch with current practices.