I move: "That the Bill be now read a Second Time."
The main purpose of this Bill is to place more effective controls on the nature and extent of advertising by solicitors, particularly in the area of personal injuries. The Bill specifies what may and may not be contained in solicitors' advertising generally. It prohibits advertising which expressly or by implication refers to claims for damages for personal injury and treats contravention of the advertising provisions in the Bill as misconduct by a solicitor for the purposes of the Solicitors Acts. The Bill also removes difficulties and anomalies in certain procedures of the Disciplinary Tribunal for the solicitors' profession, and it strengthens the power of the Law Society to prohibit contravention of the Solicitors Acts in relation to advertising and other matters concerning the conduct of solicitors.
The Law Society has indicated its support for the Bill and I welcome that support. It is important that the society has made clear its position because it is the general regulatory body in relation to the solicitors' profession. The society has indicated that while the present law provides for limited control of advertising, it is not adequate to deal with the excesses which have become prevalent among some of its members.
Advertising by a small number of solicitors is blatantly litigious. It openly invites persons to make claims and it stirs up business involving claims against employers, occupiers, State organisations or any other mark for damages. This advertising is pushy, "in your face" and sometimes personalised. The advertising in question has brought the good name of the solicitors' profession into disrepute. Advertising by solicitors in relation to Army hearing impairment cases is but one example of the kind of advertising which this Bill aims to deal with. The intention of the Bill is to ensure that the solicitors' profession as a whole will work within a reasonable standard advertising code. The reality which cannot be ignored is that the actions of a few have tended to lower the public's respect for the profession. It is time now for this matter to be addressed.
The Law Society carried out admirable work on a code of conduct over a long period of time which culminated in 1988 in a code, A Guide to Professional Conduct for Solicitors in Ireland. It is the work of many eminent solicitors and it is a monument not only to them but to the wisdom of the society in promulgating the work and bringing it to finality. The foreword to that code of conduct by the then President of the Society, Thomas D. Shaw, is as relevant in the context of this Bill as it was in 1988. He stated that "sound ethical conduct is the foundation on which any profession should base the conduct of its business", and among his concluding remarks were the following:
This Code of Conduct attempts to translate ethical philosophy into a practical set of rules and conditions, based upon sound common sense, culled from the collective wisdom of practitioners over many years. Professional conduct is largely a matter of self-discipline. It has to do with personal pride, pride in oneself and in one's profession. It transcends the purely legal aspects of a situation, because sometimes even when the legal niceties are attended to there can be a choice between common sense and sharp practice. Ethical conduct has to do with standards of common decency the observance of which affects that very precious commodity the "good name" of the profession to which every solicitor has the honour to belong. It is to be hoped that this Code of Conduct will act as a ready reference to solicitors as to what is proper in the many diverse situations in which they find themselves as they go about their daily business in close proximity with the public which they have the honour to serve.
When the Law Society published its code of conduct it elected, with some reluctance and after considerable debate, to allow advertising under certain conditions. The society, since 1955, had, by regulation, prohibited solicitors from advertising their services to the public. While the 1988 regulations allowed solicitors to advertise, they prohibited advertising which was in bad taste, false or misleading, claimed specialist knowledge or superior quality of service over other solicitors or was critical of other solicitors. Those advertising provisions were subsequently put into primary legislation by the Solicitors (Amendment) Act, 1994.
I propose, briefly, to set out for the information of the House the main provisions of the statutory code, contained in Acts of 1954 to 1994, which currently apply to advertising by solicitors.
Section 71 of the Solicitors Act, 1954 empowers the Law Society to make regulations with respect to the professional practice, conduct and discipline of solicitors. That section was extended by the Solicitors (Amendment) Act, 1994 to provide that the society may not prohibit advertising except in the case of advertising which is likely to bring the solicitors' profession into disrepute, is in bad taste, reflects unfavourably on other solicitors, contains an express or implied assertion that a solicitor has specialised knowledge superior to other solicitors, is false or misleading, consists of unsolicited approaches to individuals for business or is contrary to public policy. These legislative provisions were given detailed effect by the society in regulations made in 1996.
Under the regulations of 1966 a solicitor is obliged to furnish the Law Society with a copy of an advertisement issued within a 12-month period of its date of issue when requested to do so by the society. Breaches of the regulations may be investigated by the Disciplinary Tribunal and may be found by the tribunal to be misconduct within the meaning of the Solicitors Acts of 1954 and 1960. The 1994 Act gives the Disciplinary Tribunal power, where it has found a solicitor guilty of misconduct, to advise, admonish or censure that solicitor and to order him or her to pay a sum, not exceeding £5,000, to the compensation fund of the society or an aggrieved party. In addition it has the power to refer the matter to the High Court which has the power, inter alia, to strike the name of the solicitor off the roll, suspend the solicitor from practice for a specified period of time or place restrictions on the solicitor's practice.
A person who refuses to obey a direction of the Disciplinary Tribunal is guilty of an offence which carries a maximum fine of up to £10,000 and/or two years' imprisonment. Where the offence is tried summarily, the maximum penalties are a fine of £1,500 and/or 12 months' imprisonment. Disciplinary Tribunal orders may be appealed by a solicitor to the High Court. Disciplinary tribunal orders may be appealed by a solicitor to the High Court.
The Bill repeals and re-enacts many of the provisions of section 71 of the Act of 1954 as inserted by the Act of 1994. A main difference is that the details of prohibitions on advertising will now be contained in primary legislation rather than in regulations made by the Law Society. The Bill aims to ensure that the kinds of excesses of advertising experienced to date will be a thing of the past.
I now turn to the specific provisions in the Bill. Section 1 is the main provision. It amends section 71 of the Solicitors Act, 1954, which relates to regulations with respect to the professional practice, conduct and discipline of solicitors, by the substitution for subsections (2) to (7) of ten subsections, many of which contain either new or amended provisions. Before dealing in detail with these new subsections I first draw the attention of Deputies to definitions contained in the new subsection (10).
The definition of "advertisement" is wide and covers any oral, written or electronically produced communication which publicises a solicitor or his or her practice. It includes any material or statement for general publication and any audio or video recording or any presentation, lecture, seminar or interview.
The definition of "claims for damages for personal injuries" means claims for damages or compensation for personal injuries suffered by a person owing to an act of another person. The term "personal injuries" is defined as including any disease and any impairment of a person's physical or mental condition or death.
The new subsection (2) corresponds in large part to existing law in so far as it prohibits solicitors from publishing or causing to be published an advertisement which is likely to bring the solicitors' profession into disrepute; is in bad taste; reflects unfavourably on other solicitors; contains an express or implied assertion of specialist knowledge in any area of law or practice which is superior to that of other solicitors; is false or misleading; is contrary to public policy.
Other provisions, however, are new and are of particular relevance. A solicitor is prohibited from publishing or causing to be published an advertisement in an "inappropriate location" which is defined in subsection (10) as including a hospital, clinic, doctor's surgery, funeral home or cemetery. Many people would find it extraordinary that any solicitor would attempt to promote his or her practice as a solicitor in such a location. The fact in some cases, as I have learned in the recent and not so recent past, is that truth is stranger than fiction.
Subsection (2) also prohibits advertising which expressly or impliedly refers to claims or possible claims for damages for personal injuries; the possible outcome of such claims; the provision of legal services in connection with such claims; which expressly or impliedly solicits, encourages or offers any inducement to any person or group to make such claims.
A key provision is the new subsection (3). It prescribes the information which may be contained in a solicitor's advertisement. An advertisement can include the name, address, including electronic address, telephone and facsimile number and place of business of the solicitor. Particulars of the academic and professional qualifications and legal experience of the solicitor may also be provided as well as factual information on legal services provided and any areas of law to which those services relate, particulars of any charge or fee payable to the solicitor, and other information specified in regulations made by the Law Society.
The new subsection (4) makes clear that, without prejudice to the prohibition on advertising in relation to claims for personal injuries contained in subsection (2), solicitors may, when advertising, include the words "personal injuries" in the factual information they provide.
The Law Society will be required under the new subsection (5) to make regulations, with the Minister's consent, to give effect to provisions in the Bill. The regulations, among other matters, must make provision in relation to advertisements by a solicitor, including the manner of their publication, their form, content or size. They must restrict solicitors from "touting" and provide for the manner of determination by the Law Society of a contravention of the advertising provisions in the Bill or regulations made under it.
The new subsections (6), (7) and (8) repeat existing provisions in the Act of 1994. Those subsections enable the Law Society by regulations to prohibit the advertising by solicitors of any charge or fee for a specified service where the Law Society considers it appropriate and where the Minister is satisfied that such regulations are in the public interest. The subsections prohibit a solicitor from charging less for a legal service than any charge or fee specified under any enactment for the time being in force and empower the Law Society to provide by regulations that solicitors, who satisfy the Law Society of specialist knowledge in a prescribed area of law or practice, be permitted to advertise themselves as having such knowledge.
The advertising controls provided for in section 1 in relation to personal injuries apply by virtue of section 2 to non-solicitors also. Given the extent to which non-solicitors advertise services of a legal nature in the area of personal injuries it is only reasonable that statutory controls which apply to solicitors in this area should also apply to non-solicitors.
There is a need to address the question as to whether and to what extent the new provisions affect existing advertisements. Section 3 provides that sections 1 and 2 shall not apply to advertisements published not more than three months after the commencement of the Bill. This will give solicitors a reasonable time within which to acquaint themselves with the new provisions and to be on notice on how to act within the parameters of those provisions for the future.
The Solicitors Acts of 1954 to 1994 specify what constitutes misconduct by a solicitor. Breach of advertising provisions in those Acts constitutes misconduct. Section 4 of the Bill extends the definition of misconduct for the purposes of those Acts to include breach of the new advertising provisions in the Bill. The section also provides that any solicitor who acts with an unqualified person whom the solicitor knows to be acting in contravention of the Solicitors Acts shall be guilty of misconduct under those Acts, including provisions in the Bill. Accepting instructions from any such person or any other conduct tending to bring the solicitors' profession into disrepute will also constitute misconduct.
Sections 5 and 6, which I initiated on Committee Stage in the other House, have been included as a result of consultations between my Department and the Law Society. Both sections amend the procedures to be followed by the disciplinary tribunal when inquiring into the conduct of a solicitor against whom misconduct has been alleged.
Section 5 amends section 7 of the Solicitors Act, 1960, as substituted by section 17 of the Solicitors (Amendment) Act, 1994, and is designed to strengthen the disciplinary tribunal's procedures in a number of respects.
Paragraph (a) makes it mandatory for the tribunal to include with its report to the High Court "a verbatim note of the evidence given and submissions made" to the tribunal in the course of its hearings. Under the law, as it stands, the tribunal is required, on completion of its inquiry into alleged misconduct by a solicitor, to embody its findings in a report to the High Court specifying the nature of the application, the evidence laid before the tribunal and any other matter which the tribunal thinks fit to report. Because the full transcript of the proceedings is not made available to the High Court, it leaves open the possibility of challenge, by way of judicial review, by either the applicant or respondent solicitor, as to the accuracy of the tribunal's report. Paragraph (a) remedies this potential difficulty and the availability of the verbatim note will have the added advantage of minimising delays in the production of the tribunal's report for the High Court.
Section 5, paragraphs (b) and (c) deal with service of the tribunal's report and order. At present, the tribunal is required to serve a copy of its report to the High Court and to serve its order under section 7(9) of the 1960 Act on the respondent solicitor. The amendments contained in paragraphs (b) and (c) oblige the tribunal to serve copies of the report and order on the Law Society and, where appropriate, the lay applicant. The documents in question must be served within 21 days of their preparation. These provisions will ensure that all parties before the tribunal are dealt with equitably and that the tribunal's proceedings will be seen to be open and transparent.
Section 5 paragraph (d) provides for amendment of the law relating to appeals to the High Court against an order of the tribunal in two ways. First, it provides that the Law Society and applicant in the proceedings before the tribunal shall have the same right of appeal against the order of the tribunal as the respondent solicitor currently has. At present, the society or the applicant may only appeal in respect of the adequacy of the sanction imposed by the disciplinary tribunal or on the basis that, in lieu of making an order, the tribunal should have referred the matter to the High Court. I am satisfied that, in the interest of equity, the society and applicants should have the same right of appeal as the respondent solicitor.
Second, paragraph (d) provides that the period of appeal will run 21 days from the "date of service of the order or the report, whichever is the later" in place of the current provision for the period of appeal to run 21 days from "the date of service of the order" only. The tribunal's report, which contains its findings and the evidence presented to it, is of singular importance in any appeal and is of particular relevance to the parties contemplating an appeal against an order of the tribunal. Given that the appeal period of 21 days is relatively short and that, in some cases, the tribunal's report may not be ready for some time after the issue of the order, I am satisfied that for the parties to fully assess the tribunal's findings, the date of appeal should run from the date on which the full particulars of the tribunal's findings and its order are available to all the parties.
Section 6 amends section 23 of the Solicitors (Amendment) Act, 1994, to allow the Law Society to publish a summary of the disciplinary tribunal's report on its findings in proceedings against a solicitor for alleged misconduct. At present, section 23 provides that the Law Society may, on receipt of an order from the disciplinary tribunal, publish the order or notice of the making of the order and its effect. Such publication has undoubtedly a certain deterrent effect on solicitors. However, publication of the order, which often contains no more than the sanctions imposed by the tribunal or its effect, may not make clear in all cases the nature of the misconduct of which the solicitor has been found guilty or the significance of the misconduct. Consequently, the deterrent effect of publication can be diminished. On the other hand, the disciplinary tribunal's report specifies the nature of the complaint against the solicitor, the evidence which is presented to it in the course of its inquiry into the complaint and its detailed findings. The view of the Law Society, with which I agree, is that more disclosure should be made of the findings of disciplinary hearings against solicitors. Publication of such hearings would give rise to greater transparency and it could also have a greater deterrent effect than simple publication of details of the penalty imposed on a solicitor for his or her misconduct.
The remaining section of importance in the Bill is section 7. It provides that, on application by the Law Society, the High Court may where it is satisfied grant an injunction prohibiting contravention of the Solicitors Acts by a solicitor or any other person, notwithstanding that such contravention may constitute an offence. The background to this new section is that in a High Court case, the Incorporated Law Society of Ireland v. Carroll and others — 1993, vol. 3, Irish Reports, p. 145 — the Law Society sought declarations that a defendant who was not a solicitor and who had held himself out to be such had contravened the Solicitors Act, 1954, and sought injunctive relief restraining him. In refusing to grant the injunction the court held that, while the society had power to bring a criminal prosecution against a person who commits an offence under the Solicitors Acts, it did not have the power to obtain an injunction to prevent a person from breaching the Solicitors Acts. Section 7 of the Bill now provides for that power against any person, both solicitors and non-solicitors.
The House will agree that the Bill is warranted and that it will achieve a reasonable balance between the right of solicitors to communicate and the need to maintain good ethical standards in the legal profession consistent with public policy. I commend the Bill to the House.