By Hon. Sarjo Barrow
There is a certain irony in the legal history of professional advertising. The prohibition against lawyers publicly promoting their services was never rooted in ethics. It originated from snobbery, a Victorian-era attitude inherited from the English legal tradition, where the practice of law was considered a gentleman’s calling, far too dignified to be marketed like fish at a market stall. England has long moved beyond this mindset. The Gambia has not.
The Legal Practitioners Act 2016, as amended in 2024, still includes in section 40(1)(a) the offense of “touting, that is, importuning for clients.” The clause is brief, blunt, and completely undefined. It makes no distinction between aggressive ambulance-chasing and a law firm’s website listing practice areas. It does not separate the unscrupulous solicitation of accident victims in hospitals from a senior partner sharing her credentials on a professional directory. Under today’s law, both could potentially be misconduct. That ambiguity is a constitutional issue, not just a technical one.
A Prohibition the Constitution Must Review
Section 25(1)(a) of the 1997 Constitution of The Gambia guarantees every individual the right to free speech and expression. This is not ornamental; it is a justiciable right, enforceable by courts, covering commercial speech just as much as political speech. The right to truthfully communicate about the services offered is fundamentally an exercise of that freedom.
The Constitution does not ban the regulation of speech. But section 25(4) sets a strict three-part test: any restriction must be prescribed by law, serve a legitimate aim (such as national security, public order, health, morals, or the rights of others), and, most importantly, be necessary in a democratic society. A blanket ban on truthful commercial speech by lawyers fails this third criterion. The state can regulate deception, but it cannot simply silence truthful communication.
The touting ban, on its face, does not differentiate between truthful and misleading speech, between proportionate and predatory solicitation, or between legitimate and harassing conduct. Its broad scope, which could include a law firm’s website, is not a precise regulation; it is a heavy-handed suppression of protected speech. Such vagueness creates constitutional problems: when the law’s reach is uncertain, citizens lack clarity on what is permitted, and authorities are free to apply the rule selectively.
The United States Set the Standard in 1977
Nearly fifty years ago, the U.S. Supreme Court addressed this exact issue. In Bates v. State Bar of Arizona (1977), two Arizona lawyers advertised their fees for routine legal services in a newspaper and were disciplined. The Court invalidated the restriction, ruling that lawyer advertising is commercial speech protected by the First Amendment. The majority dismissed the professionalism argument, stating that the idea that lawyers are “above trade” was outdated and that the historical justification for the ban had crumbled.
While The Gambia does not need to adopt the American constitutional model, it should embrace its core principle: hiding truthful information about legal services harms the public. A person in Basse, Dankunku, or Soma needing a lawyer, but unaware of costs or how to find qualified practitioners, is left unprotected by rules that keep lawyers invisible; she remains vulnerable. This does not mean the Disciplinary Committee should dictate fees, as that would be price-fixing. However, it can and should ensure fees are fair and reasonable, prohibit unreasonable charges, or cap contingency fees, all in alignment with constitutional standards.
England Moved Forward; The Gambia Did Not
Ironically, this rule was borrowed from England, which no longer enforces it. Today, solicitors in England and Wales can advertise freely on radio, TV, billboards, newspapers, websites, and social media. They may display prices, describe services, and market to the public. What they must avoid is making targeted, aggressive approaches to vulnerable individuals, such as sending letters to new accident victims. This specific prohibition against predatory solicitation is the core remaining part of the old touting rule. The rest has been abandoned.
The Gambia, a common law country that inherited its professional conduct rules from this English tradition, still maintains a rule that the source jurisdiction abandoned long ago. We preserved the relic while losing the rationale. What was once a matter of etiquette has become a disciplinary offense, protected from reform by institutional inertia and, perhaps, by professional self-interest that benefits from an opaque legal market, disproportionately harming new or less established lawyers. The truth is, advertising is not the only tradition we have failed to examine. An honest review of the Act reveals a statute that, in its most consequential parts, is a relic of the Victorian era, preserving rules that England abandoned decades ago, some as early as 1985.
The Flaw That Would Kill the Law
Another practical problem is that many Gambian law firms maintain websites describing their practice areas, partner profiles, and contact details, and sometimes include consultation fees. Under a strict reading of the touting ban, such websites could be subject to regulation. Yet they are often maintained without consequences, suggesting either institutional tolerance or an understanding that not all outward-facing communication runs afoul of the rule.
The rule, however, remains formally unchanged, and its vague scope provides no clear guidance to those it regulates. This creates serious uncertainty, particularly when considered alongside the 2024 Amendment, which explicitly states that access to justice and consumer protection are guiding regulatory principles and requires lawyers to serve indigent clients free of charge, while leaving the touting ban fully intact. How can one improve access to justice if potential clients cannot find, compare, or evaluate legal services? The answer is simple: the indigent client is, by definition, a person of limited means and limited information, precisely the person who depends on advertising as a vital resource. The Act pulls in opposite directions.
The Way Forward
The Gambia Bar Association and the General Legal Council have both the authority and the duty to act. The 2024 Amendment already empowers the GLC to issue detailed professional conduct guidelines. That authority should be used not to extend the touting ban but to replace it with a framework suited to a democratic society committed to access to justice.
Such a framework would accomplish three things. First, it would explicitly permit truthful, accurate, and non-misleading advertising across all media, including websites, social media, print, and radio, provided that proper disclosure of regulated status and fee basis is made.
Second, it would maintain and sharpen a narrow prohibition on predatory solicitation: the targeting of vulnerable individuals in distress. That is the legitimate core of the old touting rule and deserves clear legal expression.
Third, it would prohibit false or deceptive claims, such as exaggerated success rates, guaranteed outcomes, or misrepresented qualifications. The public must be protected from deception, not from information.
None of this requires immediate constitutional or legislative changes. Administrative reforms by the GLC, guided by constitutional principles and the lessons of jurisdictions that have already taken this path, would suffice. A court case would settle the matter definitively, but the better course is for the legal profession to reform itself before courts are compelled to do it for them.
The Gambia, a small country with a rich legal tradition and a genuine commitment to access to justice now enshrined in statute, should not sustain a law that keeps the legal market opaque, costly, and inaccessible to those it claims to serve. These rules were not handed down from any higher authority; they are practices of a 19th-century English professional class, exported to our shores and long abandoned by the country that created them. Times have changed. Ethics demand that we change, too.
Hon. Sarjo Barrow
The views expressed are the author’s own and do not necessarily reflect those of the United States Department of Justice or the United States.
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