The main purpose of this Bill is simple. It allows for better control of advertising by solicitors. It deals with the nature and extent of the advertising and it prohibits specifically advertising which expressly or by implication refers to claims for damages for personal injury. The Bill achieves its objectives by specifying what may be and may not be contained in solicitors' advertising; requiring the Law Society, as the regulatory body for solicitors, to make regulations governing such advertising; treating contravention of the advertising provisions in the Bill as misconduct by a solicitor for the purposes of the Solicitors Acts and enabling the society to obtain a High Court injunction prohibiting contravention of those Acts in regard to advertising and other matters concerning the conduct of solicitors.
The Bill is a response to growing concern about the excesses of advertising by some solicitors, particularly in the area of personal injuries. The doubts which have existed about the effectiveness of existing controls have been heightened in Army hearing loss cases. No one familiar with the advertising which has occurred in this area can be left in any doubt about the extent to which members of the legal profession are prepared to go to stir up business on behalf of clients against employers, occupiers, State organisations or any other mark for damages. I am not referring to ordinary type advertising but to "in your face" and personalised advertising and ambulance chasing that should have no place in the legal profession.
The intention in the Bill is to ensure 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 and it is time now that the matter is addressed.
I am heartened by the fact that the Law Society has resolved to support the Bill. The society points to the fact that when it decided to allow limited advertising by solicitors in the late 1980s it was alert to the possibility that advertising for personal injuries work might damage the reputation of the solicitors' profession. That possibility has now come to pass. It is only fair to point out that the regulations which the society introduced at that time set certain limits on the nature of solicitors' advertising which were not without some strength. A difficulty is that some solicitors have stretched those limits to the full and the result is that the present code on advertising is not operating satisfactorily.
Before I outline the main features of the Bill, it is worth recalling what the present provisions of the law contain. I will then inform the House what changes are provided for in this Bill.
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 entitled "A Guide to Professional Conduct of 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 seeing it to finality. The year 1988 happened also to coincide with a change in the society's rules on advertising. It elected in that year to allow advertising under certain conditions.
Heretofore, 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. This new approach by the Law Society to advertising was endorsed in 1990 by the Fair Trade Commission in its report on the study of restrictive practices in the legal profession. Those advertising provisions were, in effect, put into primary legislation by the Solicitors (Amendment) Act, 1994. The statutory code which now applies to advertising by solicitors can be briefly described as follows.
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 provisions, which mirrored to some extent the 1988 regulations made by the Law Society, were given detailed effect by the society by regulations made in 1996.
Under the 1996 regulations a solicitor is required 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 of the society 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. 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 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.
The provisions I have mentioned have considerable strength. The Bill repeals and re-enacts many of the provisions of section 71 of the 1954 Act as inserted by the 1994 Act and extends those provisions to ensure that the type 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) and (7) of ten subsections, many of which contain either new or amended provisions. Before dealing in detail with these new subsections, I draw Senators' attention to the definitions which are contained in new subsection (10) The definition of "advertisement" is wide and covers any communication, whether oral or in written or other visual form and whether produced by electronic or other means, which publicises a solicitor or his or her practice and includes any brochure, notice, circular, leaflet, poster, placard, photograph, illustration, emblem, display, stationery, directory entry, article or statement for general publication. It also covers any audio or video recording or any presentation, lecture, seminar or interview.
The definition of "claims for damages for personal injuries" means claims, whether made in court proceedings or otherwise, for damages or compensation for personal injuries suffered by a person owing to an act or omission of another person and "personal injuries" is defined as including any disease and any impairment of a person's physical or mental condition, or death.
New subsection (2), as provided for in section 1 of the Bill, corresponds to subsection (2) in existing law and associated regulations 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 and is contrary to public policy.
However, other provisions in subsection (2) which are new help to strengthen the law on advertising by solicitors. A solicitor under the subsection will be prohibited from publishing or causing to be published an advertisement which is published in an "inappropriate location". An "inappropriate location" is defined in subsection (10) as including a hospital, clinic, doctor's surgery, funeral home or cemetery. Advertising under subsection (2) will also be prohibited which expressly or impliedly refers to claims or possible claims for damages for personal injuries, the possible outcome of such claims or the provision of legal services in connection with such claims or which expressly or impliedly solicits, encourages or offers any inducement to any person or group to make such claims.
A key provision in the Bill is new subsection (3). It prescribes the information which may be contained in a solicitor's advertisement. An advertisement must not include more than the name, address including electronic address, telephone and facsimile number and place or places of business of the solicitor, particulars of the academic and professional qualifications and legal experience of the solicitor, factual information on the legal services provided by the solicitor and any areas of law to which those services relate, particulars of any charge or fee payable to the solicitor and any other information specified in regulations made by the Law Society. 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" without any further elaboration.
The Law Society will be required under 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 and their form, content or size. The regulations must restrict solicitors from "touting" and the regulations must also provide for the manner of determination by the society of a contravention of the advertising provisions in the Act or regulations made under it.
Subsections (6), (7) and (8) repeat existing provisions in the Act of 1994. Subsection (6) provides that the Law Society may, by regulations made with the Minister's consent, prohibit the advertising by solicitors of any charge or fee for a specified service where the society considers it appropriate and where the Minister is satisfied that such regulations are in the public interest.
Subsection (7) provides that the Law Society shall not 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. Subsection (8) empowers the Law Society to provide by regulations that solicitors who satisfy the society of specialist knowledge in a prescribed area of law or practice be permitted to advertise themselves as having such knowledge.
Section 2 of the Bill makes clear that the advertising controls provided for in section 1 in relation to personal injuries apply also to non-solicitors. Section 3 of the Bill provides that sections 1 and 2 shall not apply to advertisements published not more than three months after the commencement of the Act. This will give solicitors a reasonable time within which to acquaint themselves with the new provisions in the Bill and to be on notice on how to act within the parameters of those provisions in the future.
The Solicitors Acts as they stand specify what constitutes misconduct by a solicitor. Breach of advertising provisions in those Acts constitutes misconduct and 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.
Section 5 of the Bill 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, 1954 to 1998, 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, Incorporated Law Society of Ireland v. Carroll and others — 1993 3 Irish Reports 145 — the Law Society sought declarations that a defendant who was not a solicitor had, in holding himself out to be a solicitor, 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 power to obtain an injunction to prevent a person from breaching the Solicitors Acts. Section 5 of the Bill now provides for that power against any person, both solicitors and non-solicitors.
Section 6 of the Bill is standard and sets out the short title, commencement, collective citation and construction. The Act will come into operation on such day, not being later than three months after its passing, as may be appointed by the Minister.
The Government is satisfied that the Bill represents a clear statutory framework which will ensure that in future solicitors' advertising will be balanced while at the same time will be geared towards informing the public of the range of services provided by the profession.
I am satisfied that the Bill as framed and the regulations to be made by the Law Society under provisions in the Bill which aim at stricter control of advertising on the basis of general criteria, and at very specific control of personal injuries advertising, will together represent a reasonable balance between the right to communicate and the need to maintain good ethical standards in the legal profession, consistent with public policy.
I mentioned the "Guide to Professional Conduct" drawn up by the Law Society in 1988. The foreword to that code by the then President of the Society, Thomas D. Shaw, is as relevant today 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 he stated:
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.
The Bill does not substitute for the principles and the honour that is enshrined in that code. On the contrary, the Bill complements that code and furnishes it with powers which the Law Society needs to have to make and operate properly a code of advertising for its members.
I commend the Bill to the House.