Wednesday, October 28, 2020

High Court lifts ban on lawyers’ right to advertise

The High Court has issued a landmark decision on the Legal Practitioners Act (LPA) which prohibits legal practitioners from advertising their practice.

Justice Mercy Garekwe found that the Legal Practitioners Act that prohibited lawyers from advertising contravened Botswana’s Constitution which guarantees freedom of expression.

She was delivering judgment in a case in which Gaborone based attorney Osego Garebamono late last year dragged the Attorney General, The Ministry of Justice, Defence and Security and the Law Society of Botswana challenging certain provisions of the Legal Practitioners Act that “bar in absolute terms advertising by legal practitioners.”

Delivering judgment, Justice Garekwe noted that the State vehemently argued that by applying to be admitted to practice as an attorney, Garebamono consented to be governed by the prohibitions in issue even if they could held to flaunt his right to freedom of expression.

She added that the State believes that the attorney “signed away his constitutional right to express himself as an attorney through means of communicating his tool of trade either through websites or other social platforms.”

She found this agreement by the State to be “superfluous because the right to freedom of expression is a fundamental constitutional right to express himself as an attorney through means of communicating his tool of trade either through websites or other social platforms.”

“For one, therefore to be deemed to have fettered such right by consent, the consent must be clear, specific and unequivocal. In other words, it cannot be inferred that the Applicant’s (Garebamono actions or conduct but rather the Applicant must have at the time of  admission clearly and unequivocally signed such right away or specifically consented to be hindered in the enjoyment of same,” she said.

The State had also sought to argue that prohibition on advertising was, still in the distant past, a show of professional etiquette.

But Garekwe does not “believe that that in this day and age professional etiquette can be tied to issues of an attorney’s right to give out and or received information in respect of an in order to adequately and professionally ply his or her trade.”

The Law Society of Botswana did not oppose Garebamono’s application. Garekwe noted that “my assessment of its silence (Law Society of Botswana) leads me to reasonably conclude that it has the capability and capacity to regulate advertising by its members and sees no ills that the ban on advertising seeks to safeguard.” 

She added that the State on the other hand is a bit detached or removed from the realities of the environment under which the likes of Garebamono operate.

“The other argument of the Respondents (The State) which I have struggled to appreciate in the manner it has been presented is the contention that prohibition of advertising is premised on the protection of the public from receiving inaccurate and misleading information regarding legal services. The first struggle relates to the lack of justification to the contention made,” said Garekwe.

She said it has not been indicated how Garebamono, if allowed to advertise, would provide inaccurate and misleading information on provision of legal services to the public.

“If the legislature or the 3rd Respondent (Law Society of Botswana) is worried about the possibility of inaccurate and misleading information being peddled by legal practitioners through advertising, they can easily provide for regulated advertising as opposed to total prohibition,” she said.

Garekwe said it is absurd for the State to seek to differentiate Botswana from other countries which have embraced regulated advertising by contending that “our socio-economic factors are different from those of such countries and that our constitutional provisions on the protection of fundamental rights are not word for word with those of the other jurisdictions.

The prohibition, in so far as the proportionality test is concerned is therefore arbitrary, unfair, and based on irrational considerations, particularly when one considers that it has always been open to the Respondents (State) to lift the prohibition and allow advertising and enact rules of conduct that will govern the advertising by legal practitioners in Botswana.

“No reason has been proffered as to why the Respondents have never sought to do so. I, therefore, agree with the Applicant’s contention on the issue that the prohibition is draconian and not reasonably justifiable in a democratic society.”

The judge therefore declared Section 52 subsections (1)(b),(c) and (d) of the legal Practitioners Act unconstitutional and struck them down. The subsections prohibit advertising by legal practitioners.  She directed the Law Society of Botswana to amend its regulations accordingly within six months of the making of her order.

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