Archive for the 'Legal profession' Category

Is the Law Society trying to regulate blogs?

Restrictive rules on advertising by solicitors contain important exemptions to protect the right of solicitors to comment on legal and other issues. Is the Law Society interpreting the rules in a way would restrict those exemptions and increase their oversight of comment by solicitors?

Advertising by solicitors is very tightly restricted by the law and regulated by the Law Society of Ireland. I have written about some of the restrictions before. Most of the rules regulate the tone of advertising; what might be termed “ambulance chasing” through advertising, for example, is not possible in Ireland. None of the UK-style personal injury ads you might see on daytime television are possible in Ireland. Even this, quite mild and professional, form of ad would most likely result in trouble for an Irish solicitor daring to upload it.

The Irish rules may or may not be a good way to regulate advertising by lawyers. They do, at the very least, clash with the demand that the professions be more competitive. But the rules do recognise a very important exemption: comment. Exemptions are included in the Solicitors Advertising Regulations that should ensure no overreach in their application that would regulate or prohibit genuine comment.

The Regulations only apply to an “advertisement”, defined as being almost any type of communication “which is intended to publicise or otherwise promote a solicitor in relation to the solicitor’s practice” but “excluding a communication which is primarily intended to give information on the law”. So, a communication must be both intended to promote a solicitor and not be primarily intended to give information on the law for the Regulations to apply.

This is quite a large exemption and obviously seeks to make a distinction between traditional advertising and, for example, news updates or comment. If a communication by a solicitor is primarily intended to give information on the law it is not an advertisement, is not governed by the extensive rules and restrictions contained in the Regulations and, importantly, is not subject to oversight by the Law Society. That oversight is significant: a breach of the Regulations is a disciplinary matter which can potentially have serious consequences for the solicitor involved.

Cartoons: prohibited content.

Cartoons: prohibited content.

One catch-all provision in the Regulations, for example, prohibits an advertisement which is likely to bring the solicitors’ profession into disrepute. It is quite difficult to know precisely what is covered by that prohibition (the Law Society does not publish decisions made under the Regulations) but it is quite easy to envisage an individual or organisation who dislikes a communication from someone who happens to be a solicitor making a complaint to the Society under this heading of the Regulations.

Last Friday the Law Society published a surprising practice note on advertising. The headine refers to legal advice columns, so you might think it applies only to regular pieces in local papers where readers send in questions, for example. It suggests that where the solicitor is paying to have the column appear or is simply reproducing the content, the exemption does not apply and the column might be an advertisement. This is fair enough: such a column should be identified as advertorial or a commercial feature by the publisher. In fact, paying for editorial content to appear in a newspaper without making it clear to readers that it is a paid feature is a criminal offence for all businesses, not just solicitors.

However, the practice note makes a number of significant leaps when interpreting the Regulations. It refers to an exemption “set down in regulation 12” and refers to the contents of regulation 12 as being a test. In fact, the exemption is contained in the definition of “advertisement” in regulation 2(a). Regulation 12(a) adds to or gives examples of the exemption, it does not limit it.  Paragraphs (b) and (c) do limit the exemption by clarifying that the distribution of free legal books may, for example, constitute advertising even though the publication might be information on the law.

The danger in this practice note, which one must assume the Law Society will apply in interpreting the Regulations, is that it sets a far more restrictive scope to the comment exemption in the Regulations. The paid advice column is not a difficulty, but many solicitors now publish blogs, for example, and some pay to do so. Many solicitors have websites which may constitute advertising in their entirety or may include information on the law but either way are likely to be paid for by the solicitor.

Where an article does not satisfy this test, that is, if it has been paid for by or on behalf of the solicitor, or where it has enjoyed repeated publication, the article is subject to the regulations in the normal way.

I do not accept this. Rather, the article might be subject to the Regulations. This blog is published using who I pay for mapping a domain name to it. Is it a series of legal articles written by me where part of the space in which it is published is paid for by me? Possibly, depending on your view of domain name mapping to a free blogging platform and whether the former constitutes “space” in which the blog is published. Is it an advertisement? Certainly not. It is not intended to be and it constitutes information on the law.

Regulation 12 is not a “test” of whether or not a communication by a solicitor is commercial or non-commercial. The test is in the definition of “advertisement” itself. The practice note is, perhaps inadvertently, further evidence of how the the Regulations are out of date. These anachronistic advertising rules do not appropriately accommodate or regulate blogging, social media or other contemporary means of communication.

The Regulations are already the subject of infringement proceedings by the European Commission who allege that they breach the Services Directive, which required that Member States ease restrictions on advertising by professionals. Despite this, the Law Society has recently been publishing practice notes which reinforce the existing Regulations and present to solicitors an interpretation of them more restrictive than the Regulations themselves. Complete reform of the the Regulations is long overdue.

New site for the day job

IMG_3405You might be interested in visiting the new site of the firm I work in – PG McMahon Solicitors. The site includes a blog (under the Updates heading) which will have more of a legal updates focus than the comment one of this blog. Check it out, and consider liking our Facebook page and following our Twitter account to keep up to date with posts.

Plain packaging, conflicts of interest and the Law Society

Smoking GunThe controversy over plain packaging rumbles on and the campaign by the tobacco industry against new packaging laws has stepped up a gear now that the English Government has edged closer to introducing a law like the one proposed by the Irish Government. The industry has always threatened to challenge these laws and it appears likely they will. The last Minister for Health was adamant that the law be introduced. I do not know the attitude of Leo Varadkar, the new Minister for Health, to the Bill.

My specific interest, which I wrote about before, was the involvement of solicitors in opposing the proposed law. The law would, according to the Law Society, be an attack on intellectual property and would damage our international reputation. Both are questionable arguments but the Law Society is not alone in having these views: it is joined by the major tobacco companies, who made submissions to the Oireachtas in almost identical terms.

(As a sidenote, it is striking that most members of the profession who were happy to rubbish concerns raised about the submissions made by the Law Society to the Oireachtas were also very quick to acknowledge their lack of expertise in intellectual property law. I did not notice many intellectual property law practitioners publicly defending the submissions.)

While I am of the opinion that the plain packaging issue is not one of any significant importance to the legal profession or the Law Society, my main concern is that the submission document disclosed no relevant interests on the part of the Law Society Intellectual Property Law Committee that drafted them. In fact, it didn’t name the authors or the Committee members.

I had a number of communications with the President of the Law Society about the issue and he ultimately wrote to me, characterising my comments as amounting to a view that a member of the IP committee of the Law Society had engaged in “highly improper conduct of acting in a conflict of interest situation”. I made no such allegation.

On a preliminary, technical, note: the committee members were not, to my knowledge, “acting” for anyone when they were formulating their submissions. A solicitor’s involvement with a Law Society committee is an unpaid role and is not carried out on behalf of specific clients. It is a means by which the solicitor with expert knowledge shares that knowledge to benefit the Society and others.

My view is that where the Law Society and its committees engage in lobbying relevant interests should be disclosed, as should be the case when anyone engages in lobbying. In this particular instance, I would expect that a submission by the IP Committee would disclose in the document itself who its members are and what members act for tobacco companies, the Health Service Executive, the Irish Cancer Society or any other interested party.

Expecting the disclosure of interests is not a revolutionary idea: it should be the bare minimum standard the Law Society holds itself to.

By interpreting my concerns as he did, the President decided that he was of the view that I was, in fact, making “a serious complaint about the conduct of a solicitor.” Not correct: I was making a complaint about the apparent lack of procedures in Law Society committees when lobbying on proposed legislation. Plain packaging was a current example but the issue is much larger.

But by deciding that my concerns were a misconduct complaint the President could then conclude that it would be improper for him to become involved and instead deflect my comments to the Registrar of Solicitors. The President was telling me to make a regulatory complaint against another solicitor. I had no intention of doing so and I had not alleged a breach of conduct, the Solicitors Acts or anything of that nature.

The situation therefore appears to be that the Law Society, as an organisation of its members, is not willing to consider observations from those members about conflicts of interest policies for committees. Instead, issues which arise should be raised as misconduct complaints (which are, obviously, very serious). It is a bizarre attitude to take which muddies the waters between two separate spheres of the profession: client work and the activities of a representative professional organisation.

The Law Society has countered criticism of the plain packaging debacle by insisting that it is not a “front” for the tobacco industry. The President wrote that such ideas were “conspiracy theories” which were “without foundation”. I had not, however, suggested a conspiracy of tobacco companies and their solicitors.  That is not the issue: basic principles of transparency are what members of the Society, and the wider public affected by its actions, should require.

Solicitors represent the interests of their clients, whatever the activities of their clients may be. That is their job. But it is difficult to see why solicitors advocating a particular view on the law, under the banner of the entire profession, cannot include a footnote to disclose whether or not they might act for people or organisations with a direct interest in the outcome. Should the Society not hold itself to that standard?

Criminal Law Practitioners Union in the works

People often gripe about the free legal aid system but, to my mind, it’s part of the price we pay for the Republic and its Constitution, which

seek[s] to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured [and] true social order attained.

Some people don’t like that the system exists at all. Others dislike the cost. A small number of lawyers make a lot of money from the legal aid budget, but they tend to work exclusively in criminal defence. And they work hard: criminal defence is far less profitable than many other areas of law, including areas that consume far greater amounts of taxpayer funding.

An email has been circulated among criminal defence lawyers proposing a Criminal Law Practitioners Union (CLPU) to lobby and negotiate with the Government on the system of criminal free legal aid. The email says that, when the next round of cuts are implemented, the fees paid for criminal legal aid will have been cut by up to 50% of their 2007 level.

Cuts of this magnitude will put a large number of [criminal legal aid lawyers] out of practice and seriously undermine the fair and proper administration of justice in criminal law. Cuts of this magnitude are unfair and unjust and impose a greater burden on us than on any other ‘public service sector’.

Two points are involved here: the public interest argument and the private interest argument. The latter doesn’t interest me and will not find much sympathy with the public. But this issue is not about incomes: lawyers are also professionals who want to represent their clients’ interests, not just in court but before they reach it.

For example: it has long been the practice of the Department of Justice to pay defence counsel the same fee as the prosecution. Equality of arms is an important principle, but the Department recently abolished it for criminal trials and imposed a 10% cut on fees paid to defence counsel (ie. 10% less than what is paid to prosecution counsel by the Director of Public Prosecutions). [Edit: I agree with this letter-writer to the Irish Times. Cuts should be equal.]

Quite obviously the only reason that we are very much the ‘poor relations’ in the courts system is because our clients are voiceless and so are we. (My emphasis)

The email points to an interesting comparison which contextualises the legal aid budget: the legal aid budget is around €57 million annually, whereas the annual bill for legal fees for a single State agency, the HSE, is around €30 million. Up to May 2011, Arthur Cox had earned over €11 million advising the Government on the banking crisis alone.

The email seeks support for the CLPU to negotiate terms and conditions of a contract with the Department of Justice for legally aided criminal defence. I would expect that the CLPU will run into competition law issues but the email states that nothing will be done to distort competition.

The email suggests a picket on the courts as a final measure to protest further cuts. This will inevitably be the focus of headlines and the move would be reported by the media as a strike to protect the income of lawyers, rather than a strike to protect the interests of justice. A serious public interest issue is at stake and is unlikely to receive the quality of discussion and debate regularly achieved in the UK.

(As I finalised this blog post, this article published on the Evening Herald website. The headline provides a taste of the tone of coverage to come.)

The timeframe for action is tight, and apparently over 100 lawyers have already indicated an intention to join the CLPU (around 30 of whom are solicitors).

In the meantime, it remains unclear what has become of the last government’s mad proposal to move responsibility for the criminal legal aid system to the Legal Aid Board. However, Brendan Howlin’s Ideas Campaign-style search for solutions has apparently generated the suggestion that inexperienced law graduates “be deployed” to the legal aid system.

For how long will your local District Court be in your district area, or local?

Newcastle West District Court

Today, the Limerick Leader reports on informal discussions between the Courts Service and the Gardaí about moving sittings of the Newcastle West District Court to Kilmallock, about 36 kilometres away. Kilmallock has benefitted from huge investment in recent years, whereas Newcastle West District Court remains antiquated and with few facilities. However, it is still a functioning Court building.

It goes without saying that moving District Court sittings to Kilmallock would have a significant impact on business in the town. The effect would be felt not only (not even most severely) by solicitors, who already travel around the region to represent clients at various hearings. It would, however, force a further downturn on the restaurants, cafes, pubs and shops in the town that get a considerable lift to their business when the court sits.

For those not familiar with Newcastle West, it’s an old market town in West Limerick. It’s the biggest town in the County and familiar to many travelling to Kerry as the main road passes through.

The town has its origins in a castle (the old castle) erected by the Knights Templars in 1184 and since then it has played an important role in West Limerick. Part of that role has been the administration of justice. Samuel Lewis’ Topographical Dictionary of Ireland (1837) notes the important market and court sessions in the town:

Courts leet and baron are held by the seneschal of the manor, and petty sessions for the district are held every Friday.

Over the centuries, as with any market town, court and market days brought significant life and business to the town. The market days are mostly a thing of the past, but Newcastle West District Court still sits regularly and incorporates the old sittings of the Adare, Rathkeale and Askeaton courts.

Aside from monetary concerns, moving the court would have a psychological impact, stripping the town of an important official function. The town would be somewhat diminished as a result. And while 36 kilometres might not seem a tremendous distance, there is no direct means of public transport from the Newcastle West area to Kilmallock.

PS. Incidentally, last year the High Court rejected a challenge taken by solicitors in the New Ross area against the temporary relocation of that town’s court sittings to Ardcavan. The challenge was on public interest grounds and on the basis that the move threatened the applicant’s right to earn a living. The case is interesting because it related to temporary arrangements in the case of an “urgent need” or where the courthouse involved becomes “unsafe or otherwise unusable”. This is not the case with Newcastle West District Court.


The slow and painful collapse of the SMDF continues to surprise, if not delight. Today, a letter from the Chairman of the SMDF raises more questions than it answers. Three sentences jump off the page:

We embarked on a strategic review during 2010, with the assistance of significant outside expertise. It was recommended that we provide indemnity in 2010/11 and then sell our book of business.

When the London insurance market became aware, earlier this year, of the possibility of a Master Policy being introduced for Irish solicitors, any interest in the [SMDF]’s book evaporated.

What the letter diplomatically omits is the identity of the party who made the London insurance market aware of the possibility of a master policy being introduced. It was, of course, the Law Society.

The result? The Law Society now proposes to impose a €200 annual levy on all solicitors, not just members of the SMDF, for at least 10 years. (The SMDF letter raises the prospect of a 15 year bailout.)

The Law Society and the SMDF have already been criticised for seeking a bailout from Society members rather than SMDF members. But, it now transpires, the SMDF found a solution to its problems which might not have involved calling on all solicitors to bail it out.

The Law Society went public with its (still!) undeveloped idea of a master policy, depriving the SMDF of the opportunity to sell its book. The Law Society will now impose a new solution, at significant cost to its own members.

I might not be the only recipient of this letter to have exclaimed: “What?!” “lawyer-free zone”, or competitor?

Officially, the Personal Injuries Assessment Board (the “Board”) is just another boring statutory body performing a function on behalf of the State. However, the Board has often exceeded that mandate since its creation by acting as a vocal critic of the legal profession. Arguably,the Board also operates as a commercial entity in competition with lawyers, albeit a very strange form of competition where the aim is to deprive lawyers of fees rather than to earn those fees for itself.

I mentioned recently that a wide range of restrictions apply to advertising by solicitors, despite the fact that the Board advertises in a manner not dissimilar to the personal injury solicitors familiar to viewers of UK television. (An example of the latter is below; I have been unable to find ads online.)

Indeed, after a few years of operating under its official name, the Board began to style itself, a form of branding very much in line with what one might expect from an online claims agency.

An online claims agency like, perhaps? In 2010, made a complaint to the Advertising Standards Authority of Ireland under its self-regulatory code on the basis that users might believe was the website of the Board. It also complained that it was not clear who was running or from where. The complaint was upheld, though did not respond to it. The ASAI referred the case to the National Consumer Agency, presumably with a view to enforcement action under the Consumer Protection Act 2007.

Part of the Board’s complaint related to Google adwords, which really is a matter for the courts (in fact, it is very much a live issue for the courts). The Board was correct in stating that it is unclear who is behind, but contact details are provided. The site appears to be run by a company called Claims Ireland Limited but there is no company registered in Ireland with that name (there are two registered business names for “Claims Ireland”). So, the operator may have some difficulties under the Companies Acts or related legislation, which is a matter for the Companies Registration Office and the Director of Corporate Enforcement. Nevertheless, the Board was the organisation to take up the complaint and its choice of forum was the relatively powerless ASAI.

When making a complaint to the ASAI, the complainant must indicate if there is a commercial or other interest in making the complaint. For consumers, the answer will be no. A practical difference in treatment is that a consumer complaint is confidential, whereas the ASAI publishes the name of corporate complainants. The ASAI does not generally entertain complaints between competitors but may do so if a consumer interest is at stake.

What was the Board’s interest: commercial or consumer? The Board’s own website says that individuals may engage an agent to conduct a claim on their behalf. (Why anyone other than a solicitor would take on that role, given the regulatory and liability consequences, is unknown.) If the Board’s complaint was not a case of staking its commercial territory, and instead was acting in the interest of consumers, why does it otherwise go to such great lengths to discourage consumers from engaging independent professionals, the identity and reputations of which are well known?


Hello. #westlimerick #glenastar

West Limerick hills on a Summer evening. #nofilter

If ever passing through Newcastle West, stop for a stroll around the Castle grounds. Lovely on a day like today.

Access denied

A snap for Editor_Tupp @tupp_ed


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