Advertising and ostentation by lawyers still raise doubts – 12/05/2023 – Power

Lawyers still stumble over rules about advertising on the internet, especially on social networks, two years after the OAB (Brazilian Bar Association) updated the rules on lawyer advertising.

Cases involving ostentation, vulgarization of the profession, as in some dances on TikTok, and publicizing successes in the courts can lead professionals to the Ethics Courts of the sections. At the same time, the Federal Council works on new updates.

In September, the special body of the order, based on the opinion of the Legal Marketing Regulatory Committee, authorized the presence of lawyers in the metaverse, applying the advertising rules also to this virtual environment. In other words: the use of avatars by lawyers is permitted, as long as it does not violate other precepts of the OAB.

The committee is a body created by the same 2021 provision that updated the rules. Its function is to respond to lawyers’ demands, proposing interpretations of lawyer advertising regulations.

According to assessments by professionals at the OAB, the most recent doubts and infractions regarding these cases have to do with the use of the internet, particularly social networks, where advertising is allowed, but with limits.

One of these limits, as Josué Justino do Rio and Jennifer Falk Badaró, both from the OAB-SP Court of Ethics and Discipline, recall, is that of “ostentation”.

The two lawyers emphasize that the provision prohibits “advertising aimed at displaying assets related to the exercise or not of the profession, such as the use of vehicles, travel, accommodation and consumer goods, for example.”

The document also prohibits, in its article 6, the dissemination on networks “of information relating to the dimensions, qualities or physical structure of the office, as well as the mention of the promise of results or the use of concrete cases to offer professional work”.

Greice Stocker, lawyer and member of the committee, remembers that, shortly after the provision was published, “there was great criticism that the OAB could not interfere in the private life of lawyers”, and that flaunting one’s assets “would be a right of private life”. But at the time, explains the lawyer, the committee clarified that the rule only prohibits “ostentatiousness when advertising legal services”.

The problem of ostentation is related to another, also very present in the provision: that of “sobriety” in advertising.

Milena Gama, president of the committee, says that the main clarification that needs to be made “is that the OAB rules are very clear in establishing that law is not a commercial activity and, therefore, professional advertising must have a merely informative character and be primarily for discretion and sobriety”.

The lines between sober and excessive can be confusing for many lawyers.

“There is no express prohibition, for example, on lawyers doing dances on TikTok”, explains Greice. “But the rules state that advertising must be done discreetly, in a sober manner. So, depending on the way these dances are done, they could represent an ethical-disciplinary infraction.”

Which does not mean, explains the lawyer, that advertising on networks should be too serious. According to the committee member, the limit that cannot be crossed is one “who vulgarizes the service, who makes fun of the legal profession.”

Greice also remembers that, although the main problems with advertising today come from networks, there are still many complaints in rural cities involving radio. “We can use the radio to give interviews and general information. But advertising itself is prohibited” in this medium, he explains.

In addition to radio, the Law Code of Ethics prohibits advertising on television and billboards.

For Carlos Alberto Menezes Direito Filho, president of the OAB-RJ Ethics and Disciplinary Court, one of the challenges faced with the new provision is dealing with “subjective criteria”.

“A lot of money for a big office in São Paulo is one thing, for an office in the interior of the state [do Rio] It could be something else”, he says about the boast.

Maria Flávia Cardoso Máximo, president of the Admissibility and Instruction Committee of the OAB-MG Court of Ethics and Discipline, remembers that some limits and permissions are well established — the provision, for example, authorizes sponsored posts on Instagram because the costs are low, and a young lawyer could afford them. “There is equal use and enjoyment for the entire class.”

But she agrees that some limits are difficult to establish, especially with a young lawyer used to using new online platforms.

Greice states that the OAB has prioritized educational actions — such as lectures and a course on provision at the Escola Superior da Advocacia — and TACs (Conduct Adjustment Terms). “With the signing of TACs, in most cases, infractions cease”, assesses the lawyer.