Frances Fitzgerald (Dublin Mid West, Fine Gael) | Oireachtas source

The amendment proposes the insertion of a replacement section 158 which deals with the advertising of legal services. A key purpose of the amendment is to bring the State into compliance with Article 24 of the EU services directive. That EU directive requires, in general terms, the elimination of any rules, practices or regulations that are unreasonably restrictive on a lawyer's right to advertise. The European Commission had expressed a view that some advertising practices in Ireland, particularly those regarding barristers, are too restrictive and had issued a letter of formal notice in October 2014 to the effect that infringement proceedings for a breach of the directive could be taken at any time. In this context, my Department worked with the Commission, and, later, with our own draftspersons at home, to ensure the new wording of section 158 would bring Ireland’s legal services advertising regime up to date and into line with the directive.

The new section begins by providing a general entitlement for legal practitioners to advertise their services, whether as individuals or as lawyers, working within the range of partnerships that will be created by this reforming Bill. It goes on to provide a regulation-making power for the new authority to make advertising regulations that will be applicable to both solicitors and barristers. As a matter of common sense, the section provides for some consultation on the making of the regulations with the legal professional bodies or with any other bodies the authority considers appropriate but it is the authority that will have the ultimate say in what the regulations will contain.

Subsection (4) provides, in line with Article 24 of the EU services directive, that the regulations shall not impose any restrictions on the advertisements unless such restrictions are necessary both for the protection of the independence, dignity and integrity of the legal profession and for an overriding reason relating to the public interest. Any restriction must be both non-discriminatory and proportionate. These caveats clearly impose a high threshold regarding the imposition of restrictions, so the overall message is clear, namely, that all lawyers will be able to advertise freely and widely and across an unlimited range of media. This is in line with the Commission and the EU directive.

As a matter of public policy, and given the need to ensure high standards will still prevail, subsection (5)(d) sets out that it will not be permitted for lawyers to advertise in a way that, in the opinion of the authority, is in bad taste or materially false, or offers an inducement to any person to make personal injuries claims. The clause on personal injuries advertising is considered essential for the continued avoidance of the ambulance-chasing culture that is in evidence in some other jurisdictions. While lawyers will still be able to advertise the fact that they handle personal injuries cases and have an expertise in the area, the prohibition in place since 1994 on specific inducements to make personal injury claims will stand. In a similar vein, it will remain prohibited to advertise in inappropriate locations such as hospitals, funeral homes and cemeteries. It will bring us into full compliance with the directive.

A small amendment will be made to the Solicitors Acts on Report Stage to strengthen the existing and necessary prohibition on non-solicitors operating inappropriate, so-called "legal harvesting" websites which can avoid any requirements for accuracy or good taste and refer potential clients on to solicitors, for a referral fee, in full contravention of the Solicitors Acts. Senators van Turnhout and Heffernan have proposed some amendments to the amendment regarding legal services advertising. The insertion of the word "regulation" after "professional code" is unnecessary due to the fact that the definition of "professional code" in section 2 of the Bill already comprehends "regulations". It would be an unnecessary duplication. I cannot accept the second amendment, which proposes the deletion of subsection (5) because this is a crucial "principles and policies" provision without which the authority's regulation-making power would be utterly without boundaries and without meaning. The authority must be able to specify what types of advertising are acceptable and Senators will please note that the subsection is prefaced with the word "may" as opposed to "shall", so it does not mean that the authority will necessarily confine itself in these ways. In this instance, it is given flexibility. It will have a menu of criteria from which to draw when drafting the regulations. Some might think that such advertising should not be restricted in any way at all, but I have sought in the drafting process to maintain a very careful balance between allowing lawyers to advertise completely freely, while maintaining certain balances around what those advertisements contain, which I believe are in the public interest. We do need to maintain standards. As I have said, the wording of section 158 has met with the approval of the European Commission. Governments had not complied with the directive, so there were threatened infringement proceedings, but if we accept this section 158, they will disappear, so I would be very slow to undo the section, given that this section is fully compliant with the European directive and has the agreement of the Commission in that regard.

The switching around of the wording in the third amendment seems to make no difference in the intended meaning, so I do not think it is necessary. On the final amendment, the definition of "inappropriate location" has long been on the statute book without controversy and it gives clarity to the overall intention to maintain certain standards in advertising. It has long been public policy not to allow lawyers to engage in "ambulance chasing" or to prey upon distressed or bereaved persons in order to gain work and I see no good reason for that to change now or for standards to drop in that regard. I hope I have addressed the various relevant points regarding whether 158 meets the directive and why I do not believe the amendments being proposed are necessary, because most are already comprehended within the existing definitions, and, in the case of the final one, the definition of "inappropriate location" has long been on the statute book and has not given rise to any particular problems.