Solicitors (Amendment) Bill, 1998 [Seanad]: Committee Stage (Resumed).

Acting Chairman

I welcome the Minister for Justice, Equality and Law Reform and his officials to the meeting. The Select Committee is resuming consideration of Committee Stage of the Solicitors (Amendment) Bill, 1998. We will resume on amendment No. 6, which was moved but on which no decision was made.

SECTION 1.

Debate resumed on amendment No. 6:
In page 3, between lines 13 and 14, to insert the following:
"(a) suggests that no fees or costs are payable unless a case is successful,”.
-(Deputy Howlin.)

My colleague, Deputy Howlin, moved amendment No. 6 before we adjourned on the last occasion. The Minister responded by saying that the issue of no foal, no fee advertising was already dealt with in the Bill, particularly under section 1(2)(h) and (i). Deputy Howlin asked him to clarify whether this matter was fully covered under the section and inquired if it is correct that if a solicitor does not win a case, the person taking it would not be obliged to pay any money. The Deputy was concerned not that it would not be possible to make a private arrangement with a solicitor where he or she would give the person concerned, if he or she was in a position of hardship, a private undertaking, but that the solicitor would not be able to advertise that cases could be taken on the basis that no fee would be charged if those cases were not won. We want to ensure that people are not encouraged to take cases simply because they believed there would be no circumstances in which they would be obliged to pay unless the case was won.

The amendment seeks to make certain that solicitors would not be free to advertise in this way because it might encourage people to "ambulance chase" or take cases on the basis that they would incur no costs. I want the Minister to confirm that this matter is covered by the section to which he referred previously.

The intention of amendment No. 6 is to prohibit no foal, no fee advertising by solicitors in relation to claims for damages. I rejected an amendment which had a similar intention to amendment No. 6 on Committee Stage in the Seanad and I do not propose to accept the latter amendment. In the course of the preparation of the Bill, the question of no foal, no fee advertising was considered. I assure Deputy O'Sullivan that the Bill, as it stands, addresses that matter. In this regard, I draw the attention of Deputies to section 1 of the Bill as passed by the Seanad, particularly paragraphs (h) and (i) of subsection (2) which is to be inserted in section 71 of the Solicitors Act, 1954. Paragraph (h) prohibits advertising which:

expressly or impliedly refers to

(i) claims or possible claims for damages for personal injuries

(ii) the possible outcome of claims for damages for personal injuries, or

(iii) the provision of legal services by the solicitor in connection with such claims

Paragraph (i) prohibits advertising which “expressly or impliedly solicits, encourages or offers any inducements to any person or group or class of persons to make the claims mentioned in paragraph (h) of this subsection or to contact the solicitor with a view to such claims being made”.

The advice available to me is that a provision of the type contained in the amendment is not necessary in light of the clear provisions contained in the Bill. Those provisions will, I am advised, prohibit no foal, no fee advertising in personal injuries cases. On that basis, there is no need for the amendment and, in the circumstances, I do not propose to accept it. In my opinion, Deputy O'Sullivan will be reassured following my comments.

I do not believe I will get any further with this matter so I will not press the amendment.

Amendment, by leave, withdrawn.
Amendment No. 7 not moved.

Acting Chairman

Amendments Nos. 8 to 10, inclusive, and No. 12 are related and may be taken together by agreement.

I move amendment No. 8:

In page 4, lines 10 and 11, to delete "and place or places of business of the solicitor" and substitute ", place or places of business of the solicitor and any reference to the location of information provided by the solicitor that is accessible electronically".

I accept the thinking behind the amendments put forward by Opposition Deputies, with the exception of amendment No. 9. The other amendments tabled by Deputies would insert references to "websites" in the definition of advertisement. The parliamentary counsel has drafted amendments Nos. 8 and 12 to cover the situation. These amendments take account of modern means of communication.

Amendment No. 8 makes it clear that an advertisement published by a solicitor may include, for example, reference to the solicitor's Internet website. The provision, as it stands, already provides that a solicitor's electronic address may be included. This amendment is a substitute for the amendment previously circulated. The change involves inserting the phrase "the location of" in reference to information that is accessible electronically. There was concern that information provided by the solicitor that is accessible electronically could be taken to mean the entire contents of a solicitor's website. As it now stands, the amendment makes it abundantly clear that what is referred to is just the website address. The solicitor's website will also be fully in order as part of an advertisement under this legislation so long as it includes only the matters set out in subsection (3) on page 4 of the Bill as amended.

Amendment No. 12 changes the definition of advertisement on page 5 of the Bill to make it clear that it includes an e-mail address or website. In other words, information included in such media must observe the restrictions on advertising contained in this Bill. The definition of advertisement in the Bill as it stands is worded in general terms and I have no doubt it would extend to the content of e-mail addresses and websites. However, the definition gives specific examples of what comes within its scope and, in view of the increasing importance of the Internet in our lives, I consider that electronic communication should also be mentioned alongside other media.

I do not believe that Deputy Shatter's amendment No. 9 is necessary. As already stated, amendment No. 8 includes a website address which can appear in an advertisement. However, I understand Deputy Shatter may not wish to move his amendment.

I am happy not to move the amendment because the new amendment No. 8 deals adequately with the issue.

Amendment agreed to.
Amendments Nos. 9 and 10 not moved.

I move amendment No. 11:

In page 5, line 35, to delete "article or statement for general publication,".

I am concerned because the definition of advertisement includes any "article or statement for general publication". That seems extraordinarily broad and I suspect it could be unconstitutional because it is contrary to someone's right to freedom of expression. It seems to suggest that a person who specialises in the area of personal injuries and who writes an article or issues a statement in some general publication as opposed to simply publishing an advertisement could be in violation of the restrictions under the legislation. I ask the Minister to address my concerns in this regard.

I draw Deputy Shatter's attention to the fact that the definition of advertisement is general in nature. Under the Bill, advertisement means "any communication which publicises or otherwise promotes a solicitor" and the matters to which paragraphs (a) to (c), inclusive, refer are examples of what the definition includes. Clearly, an article or statement for general publication can be an advertisement on any understanding of that word. Merely deleting the reference from the list of what constitutes an advertisement does not mean that such an article or statement is not an advertisement because, as I said, the definition is general in nature.

I am concerned about the workings of this section and I was interested in the Minister's reply. This must be linked to section 1(2) which states that a solicitor cannot publish or cause to be published a number of advertisements, with which we would have no difficulty. Section 1(2)(h) refers to an advertisement which “expressly or impliedly refers to . . . claims or possible claims for damages for personal injuries”. It seems that the Minister - I would be happy if he would correct me if I am wrong - is banning practising solicitors who have expertise in writing articles about personal injuries matters in general publications from doing so. Is the Minister suggesting that I, as a solicitor practising in this area, might violate the law if I consent to a request from a women’s journal, a magazine, a general current affairs publication or a newspaper to write an article about aspects of the law relating to personal injuries?

If I, as a solicitor and public representative, identified a group of people I believed had been seriously wronged and wrote a letter not merely about the political aspect of the matter, but also about the group's right to sue, expressing the view that it would be correct to sue to recover damages or compensation for the wrong done to it, would I be in violation of the section? If I was restrained from writing the sort of article to which I refer, are not members of the public being deprived of information to which they are entitled?

These are serious issues. If I am misreading the Bill, I am sure the Minister will inform me. I am concerned that we are using a sledgehammer to crack a nut in what we are doing in this area and I am also concerned about the constitutionality of what is proposed. This provision seems to go way beyond the simple type of advertisement that would be deemed to be in poor taste and which might encourage people to litigate who have no real basis for doing so. In my opinion, this is an entirely different matter.

I have some doubts about the wisdom behind this legislation in the first instance. Nevertheless, it is a serious issue if the Minister is suggesting that it censors all solicitors from writing articles regarding personal injury claims in general newspapers or magazines by virtue of the fact that the solicitor's name might appear as the author of the article. I am happy to be corrected by the Minister if I am wrong.

I share Deputy Shatter's concerns which are very clear. The definition of advertisement appears broader than what was originally intended. Perhaps the Minister could come back to us at a later stage on what exactly is intended. I presume, as in any other profession, that legal people give lectures on a wide variety of issues and that the audience would sometimes include other solicitors who are involved in that area of expertise. It is important that we do not include in this Bill something which it was never intended to include.

I concentrated on subsection 10(a). Is it being suggested, in the context of subparagraph (c) that if a major rail accident occurs and RTE conducts an interview with a solicitor about the legal liabilities of CIE arising from the accident and the entitlement of the injured to seek damages, that this type of interview would be outlawed? If I am correct, this takes the issue to an outrageous extreme, but I may be missing something. There may be a provision in the legislation which prevents this type of problem arising. The provision goes way beyond what is in the public interest and I do not think it is constitutional if that is its effect.

I do not accept DeputyShatter and Deputy O'Sullivan's concerns in this regard. Even if valid, the amendment would not address those concerns. To do so, one would have to explicitly exclude those means of communication. It is my view that the type of instance where a solicitor discusses legal issues would not be regarded as something that promotes the solicitor in regard to his or her practice. On the other, there is little point imposing restrictions on the kind of "in your face" advertising that some solicitors have engaged in while, at the same time, providing that it is in order for them to continue the same type of advertising as long as they do it in the form of presentations, lectures, seminars or interviews. In short, there would be very little point allowing the kind of aggressive advertising engaged in by some solicitors if it takes the form of a generally publicised statement or article.

The crucial words in subsection 10 are ". . . which publicises or otherwise promotes a solicitor in relation to that solicitor's practice". They are the crucial terms and they get over the difficulty raised by Deputy Shatter. An article about general damages or family law could not be said to promote a solicitor's practice because it is about a particular subject. We are trying to cater for a situation where a person could write articles which promoted him or her as the best solicitor and could offer a reward, etc., if one avails of his or her services. That is what we are trying to prevent. There is no difference between that being done by way of advertisement or article.

That may be so, but that is not what the section states. There is a difference in terms of stating that a person cannot stand up in a room and say that he or she is the best person to act on one's behalf when suing in relation to a particular incident. We are well used to politicians like the Minister telling everyone that he is the best ever Minister for Justice, Equality and Law Reform.

That is correct.

That is not what the legislation states. This is a very serious issue. It is a matter of policy. In effect, a deal was done between the Department and the Law Society, as we all know, because there is a suggestion that a group of solicitors may be encouraging people to litigate personal injury actions in spurious circumstances. I do not know if that is true. If it is true and people are being encouraged to take spurious actions, they will lose them and action may, in certain circumstances, be taken against the solicitor for negligent advice. However, the Bill covers more than that and I will outline a number of areas about which I am concerned.

For example, regarding the hepatitis C issue, Positive Action, when it was getting organised and trying to consider what legal action was available to it, held public meetings. As I had a strong view about the position the women were in and the fact that I was in the public eye, I considered that it might not be appropriate for me to go along to that meeting to offer legal advice. Other solicitors voluntarily offered advice at a meeting which took place a number of years ago. At least one of the law firms that sent a solicitor to that meeting ended up acting for a number of people. I may be wrong about that, but I am not criticising them.

There are people who suffered physical and sexual abuse while in institutional care. They have held public meetings and asked individual solicitors acting for different people to come along and address the meetings so that there would be an informed person there to answer questions. I recall attending a meeting of that nature in Liberty Hall. Is it suggested that if one volunteers one's services and goes along to that type of meeting to address the questions of people who are confused, concerned and distressed about their situation and their legal rights - one is delivering a lecture if one speaks for five or ten minutes and one answers questions - that one will be accused of engaging in a degree of self-promotion? Are we suggesting that groups seeking information cannot have a solicitor in attendance, voluntarily and without fees? Will they have to recruit somebody and pay them? This raises very serious issues.

It is not unusual when litigation for personal injury takes place in our courts - it has happened on occasion when people have suffered appalling injuries resulting in them becoming paraplegics - and the acting solicitor succeeds in getting a very high award for damages for the injured person that the lawyer gives interviews to the media explaining what happened to the person. The solicitor may regard it as being in the public interest to do this so that if another person received a similar injury, he or she would be aware of his or her legal rights.

In trying to end the type of advertising that brings the solicitors' profession into disrepute or that is in bad taste or misleading - nobody wants that type of advertising - we are trying to ban people from exercising their right to freedom of expression to give information to groups, the community or to conduct interviews on television. That is not only in violation of the Constitution, but also in violation of the European Convention on Human Rights and Fundamental Freedoms. This is a serious issue. I am not raising it as a party political issue or as a means to create some form of political contest between us. However, there is a danger that legislation designed to cure one problem might go as far as to create a major problem of a nature never before seen in the State in the context of giving interviews or writing articles, which are commonplace occurrences and which no one would, at present, regard as inappropriate.

I do not agree with Deputy Shatter's interpretation of this issue. In my view, it does not refer to the kinds of situations he outlined. However, he has strong views to the effect that it refers to them. The Deputy is clearly aware that it is not my intention to ban any solicitor from writing articles or delivering lectures. If the truth is told, there are not enough articles written or lectures delivered by solicitors. I do not agree with his interpretation of this issue.

One might come to the conclusion that it might, perhaps, be more beneficial if greater clarity was brought to the situation by ensuring that the definition referred to the main purpose of the actual advertisement. Rather than engage in a lengthy debate on this matter this evening and although I do not agree with what the Deputy said, I propose to consider this matter carefully to see if it can be given a greater degree of clarity in order that we might communicate the precise intention of the legislation in this respect.

Acting Chairman

I understand it was agreed to adjourn at 7 p.m.

I do not intend to withdraw my amendment. In addition, I have tabled a later amendment which is designed to delete subparagraph (c). If we are to adjourn, I urge the Minister to reconsider this matter before we reconvene. This is a serious matter and it requires serious consideration. I have no doubt that the Minister has no mischievous or ill intentions in the context of how he is dealing with this issue. However, I am concerned that the wording used is dangerous, unconstitutional, runs contrary to the European Convention on Human Rights and could place at risk any solicitor who delivers a public lecture or who gives a public interview on an area of expertise in which he or she regularly practises. That is wrong and we need to tighten up the definition in a substantial manner. If we are adjourning now, the Minister will have an opportunity - if we do not delete the wording used, as I propose - to consider recalibrating the section and introducing a further amendment for our consideration.

I support Deputy Shatter. Reference was made to a later amendment but I believe it falls into the same context and has the same effect. Our normal concept of an advertisement would not generally include the various matters covered in the paragraphs contained in the section. I agree that there is a need to reconsider this issue.

I understand we might reconvene on Thursday and there is no way we would have the opportunity to consider this matter in detail by then. We could consider it in detail between now and Report Stage, which is reasonable. That is the best I can do. I fundamentally disagree with Deputy Shatter's view on this matter because, like all other legislation, the Bill has been considered by the Attorney General and his view is that it is constitutional. He would hardly have allowed it to be introduced if he was of the view that it was not constitutional. I do not agree with Deputy Shatter's interpretation of this matter and, by implication, neither does the Attorney General. However, I promise that we will look at this before Report Stage and if greater clarity can be brought to the situation to satisfy the concerns, which I regard as unfounded, of Deputy Shatter and Deputy O'Sullivan, we will take the appropriate action.

I understand we are to adjourn and I would like to reserve my response until we return to this issue.

Acting Chairman

If the Minister is agreeable to a Minister of State taking the debate on the Bill, the committee will adjourn until Thursday, 14 February at 11.30 a.m., when it will resume its deliberations. Is that agreed? Agreed.

Is that St. Valentine's Day?

Acting Chairman

The committee stands adjourned until Thursday at 11.30 a.m.

Progress reported: Committee to sit again.
The Select Committee adjourned at 7.05 p.m. until 11.30 a.m. on Thursday, 14 February 2002.