I wrote in January about the Law Society’s secret arrangement to guarantee a loan in favour of a private insurance company, the SMDF, to make up for huge losses suffered by that company as a result of a disastrous investment. The Society has now released its 2009 financial statements and only one, brief reference is made to the guarantee, including the news that it has not yet been finalised.
That January post also mentioned massive losses suffered by the Society in a disastrous invesment of its own and the summary of the 2009 statements distributed to solicitors inlcludes the following disclosure:
[The Society’s after tax surplus for 2009] includes an exceptional loss of €480k, representing a further write down of the value of the Benburb Street site in 2009. The write down required by our auditors in 2008 was €14.7m.
In 2006 the Society appears to have been gripped by the property mania affecting the nation and this property was bought for unspecified and unexplored development purposes, at a cost of €22.4m. In 2009 it was revalued at around €7.7m and the 2010 write down brings it to €7.22m.
The then-President of the Law Society said at the time of the purchase:
I believe that the great majority of solicitors today, and in the future, will view the purchase of this Benburb Street site, like the purchase of Blackhall Place, as a wise and practical decision made in the long-term interests of the profession.
In 2010, the Society says of the €15.2 million lost:
These write downs must be put in the context of the Society never planning to sell the site. Importantly, the site is free of debt.
I don’t know which one of those sentences is worse.
The graduated response system to tackle unlawful filesharing online, agreed as part of an out-of-court settlement between the Irish recording industry and eircom, was approved by the Irish High Court last month. Mr. Justice Charleton’s judgment concluded that the “parties can … lawfully proceed to implement the settlement”, though his judgment relates only to the specific question of compatibility with the Data Protection Acts 1988 and 2003.
eircom has now implemented the graduated response system on a pilot basis and details are available on its website. The FAQs say that IRMA will supply eircom with IP addresses which eircom will match to its customers, who will then receive warnings about alleged unlawful downloading. If warnings are ignored, service may be suspended for 7 days and the customer will not be charged for those 7 days of lost service. On a subsequent alleged infringement, service will be withdrawn for 12 months. If a customer disputes an allegation that their service has been used for unlawful downloading, they can appeal to the eircom, who “will consider all customer appeals on a case by case basis.”
The concerns about graduated response primarily arise out of disconnection on the basis of complaint, rather than court order, and that the sanction affects an entire household, rather than the individual alleged infringer. The latter point has gathered steam as the internet has taken on utility status. IRMA’s attitude to this is clear:
The European Parliament has been talking about internet access as a basic human right. It absolutely is not.
Dick Doyle, IRMA Director General
eircom emphasises that customer data will not be shared by eircom with any other party.
Under no circumstances will eircom be handing over customer details to any third party.
It is also stated that eircom won’t monitor network usage and that “[t]here are strict privacy laws that prohibit eircom from monitoring the online activities of individual customers.” Monitoring will be done by DtecNet on behalf of IRMA.
IRMA will send eircom notifications containing among other things the IP addresses of individuals they have detected as engaging in illegal file sharing in breach of copyright.
One wonders what those “other things” might be. Charleton J. said:
Neither DtecNet, or any similar service of detection, nor any of the plaintiffs whose copyright material is being infringed would ever know through this process that the infringer is a particular person living in a particular place in Ireland. What they do know is that a particular IP address has been involved in the downloading.
DtecNet’s solutions will automatically secure evidence against the infringer(s) and generate Cease & Desist letters that can be sent to the infringer(s) asking for immediate removal of the content.
This is a capability of their systems, not a detail of the IRMA/eircom agreement. But nevertheless, it appears that IRMA may be capable of gathering more than just IP addresses of alleged infringers. eircom might not share customer data with any other party, but it is not clear what data will be shared with it.
Last year, the New York Times reported on some colourful online behaviour by US lawyers. One lawyer referred to a judge on his blog as “Evil, Unfair Witch”; another may have revealed confidential case information online while a judge was found to have posted what is diplomatically described as “off-color humor”. The article refers to the online habits of younger lawyers, accustomed to the informal, fire-and-forget atmosphere which prevails online. This attitude is increasingly coming up against old rules applicable to lawyers’ behaviour.
A range of rules apply to solicitors, primarily the Solicitors Acts 1954 to 2008 and the Law Society’s Code of Conduct. The Code of Conduct doesn’t specifically deal with public criticism of the Courts but does say that if a solicitor issues a statement to the press in relation to a case (s)he should ensure that (s)he is not in contempt of court. With respect to other solicitors, it states that a solicitor should not use insulting language or indulge in acrimonious correspondence.
For solicitors who blog or tweet, the Solicitors Advertising Regulations 2002 may have greater relevance. An advertisement excludes communication primarily intended to give information on the law, so a true blog is unlikely to be subject to the Regulations. This would be fair, as books, articles and interviews relating to a legal topic are listed as examples of communications primarily intended to give information (and therefore not advertising).
However, in the case of an article or interview, if the placement is partly paid for by the solicitor, it is advertising. So, if a blogging solicitor pays WordPress for a domain name hosting service (as this one does), is that solicitor paying for part of the space in which the article(s) appear?
Solicitors rarely advertise and when they do, their ads tend to be general in content. If you’ve ever wondered why, you might be interested in the prohibitions contained in the Regulations.
Advertising by solicitors must not:
be likely to bring the profession into disrepute or be in bad taste.
reflect unfavourably on other solicitors.
suggest specialist knowledge superior to other solicitors.
be published in an inappropriate location (eg. in or on any form of transport or on the same page as death notices in a newspaper).
encourage anyone to make a personal injuries claim.
The rules don’t end there. A solicitor is prohibited from using the phrase “no foal, no fee” in an ad. The prohibition is aimed at limiting personal injuries claims and reducing the compensation culture. However, the State-run Citizens Information website helpfully tells us:
Many solicitors take on cases on a “no foal, no fee” basis. This means that you will not be charged a fee by your solicitor if you do not win the case. This is most common in personal injuries cases, i.e., where you have been injured in an accident.
You might fear that a solicitor will invoice you on sight and think it would be nice to see a solicitor advertise a free first consultation: that is prohibited. Perhaps you live in a remote area and would be interested in a solicitor who advertises home visits: that is prohibited. An advertisement cannot include any cartoons (which would surely disappoint Dr. O’Dell if he were in private practice), cannot include dramatic or emotive words or pictures or make reference to a calamitous event or situation.
Many of the rules are obviously aimed at protecting the integrity of the profession, but some rules appear to limit competition and may be outdated. The Competition Authority’s 2006 report on the legal profession states that some of the restrictions are unnecessary.
The Competition Authority recommends, for both barrister and solicitor advertising, that the existing rules should be reformed. Truthful and objective advertising gives clients useful information and helps them to choose among competing lawyers. Advertising should be controlled in a more pro-consumer manner by way of rules that focus on preventing factually inaccurate advertising or advertising which would bring the administration of justice into disrepute.
It recommended the Law Society take action by December 2007; to date, this has not happened.
Going to court is rarely pleasant. Even if you’re attending for a good reason, such as naturalisation or obtaining a licence, the courtroom retains the atmosphere of a place of justice, where issues of guilt are decided and penalties handed down.
If you are unfortunate enough to be summoned to court (see here for the difference between a summons and a charge sheet), there is a lot of good information available online.
The Director of Public Prosecutions has published a guide to attending court as a witness. The DPP’s guidelines for prosecutors also provide background information to the nature of criminal prosecutions in Ireland.
The Irish Council for Civil Liberties has published a very useful guide to your rights in the context of the criminal justice system and garda powers.
For the ordinary citizen, the District Court is that which they are most likely to encounter. It generally deals with what can be considered to be less serious crimes and for civil cases with a value of up to €6,348.69. To take two common examples: one might have to attend the District Court for an alleged road traffic offence or in relation to a relatively small contractual dispute. (The Small Claims Court is, in fact, part of the District Court.)
If charged with a crime at the upper end of the District Court’s jurisdiction, you are likely to have consulted a solicitor. This will usually involve a potential prison sentence and if a solicitor is not on record the District Judge will recommend that a solicitor be engaged. The Judge might invite the accused person to talk to one of the solicitors already in court. Legal aid may be applied for depending on the accused’s circumstances.
But what of less serious charges, like those arising from unpaid fixed charge notices or for non-display of tax or NCT discs? Is a solicitor required for a court appearance? The short answer is: no.
If you are not prepared to represent yourself in court you may wish to engage a solicitor. If you represent yourself, you might not have to do much talking but the courtroom can be a busy and intimidating place. Many people prefer to outsource the appearance to a solicitor. Engaging a solicitor does not guarantee you won’t have to speak: a judge can always ask you questions or swear you in to give evidence.
If you are unsure as to your guilt or innocence, how to plead, whether the gardaí have complied with applicable requirements or whether your rights have been affected, you should discuss this with a solicitor. If wish to plead not guilty you can still appear in person and do it yourself.
Often, the main reason for engaging a solicitor is that a solicitor working in the district will be familiar with the practices and procedures of the local court and District Judge. (S)he will be able to advise on all aspects of court hearings in that District and how to prepare for an appearance. (S)he will also be able to provide guidance in relation to what penalties might be expected if found guilty.
Depending on the charge, previous record and the practice of the District Judge, it might not be necessary to attend court on the day if a solicitor is on record. If there is a valid reason why you cannot be in court on the day your charge(s) is to be tried, your solicitor can attend and seek an adjournment to a later date.
Engaging a solicitor is not a silver bullet and it is never possible to guarantee a particular outcome. Nevertheless, given that most people are unfamiliar with the courts system, there is a benefit in getting help from someone who appears in court on a regular basis.
The smoking ban is contained in section 47 of the Public Health (Tobacco) Act 2002 (as amended), which took effect on 29 March 2004. The ban was introduced to much objection from licensedvintners, who feared a negative impact on their trade and wanted greater exemptions. However, the ban is considered to have been a success for the Government of the day and resulted in plaudits for the Minister for Health of the day.
Section 47(7) sets out exemptions to the ban, the main ones being applicable to private homes, hotel bedrooms, prisons and accommodation provided in similar facilities. The exemption of most interest to many businesses in the hospitality industry, however, is that in paragraphs (c) and (d), which provide that the ban does not apply to an outdoor part of a premises which is covered by a fixed or movable roof, provided that no more than 50% of the perimeter is surrounded by one or more walls or similar structures.
The Brookshore case concerned a prosecution taken by the HSE, responsible for enforcement of the ban, against a pub in Naas. The HSE’s case was that, on inspection, they “found a completely enclosed laneway between two parts of the premises that was covered with a retractable canvas awning.” Like many outdoor smoking areas provided by Irish pubs since the ban, the area was furnished and included flat-screen televisions. Photographs of the area were submitted to the District Judge by each side: those of the owner showed a retracted roof covering and furniture cleared, while those submitted by the HSE showed the area in full use and with “the canvas awning completely blot[ting] out the sky”.
The District Judge inspected the premises and decided that the awning was not a roof or moveable roof within the meaning of the act and held as a fact that “the area had no roof”. He dismissed the prosecution on that basis and declined to hear oral evidence. However, the judge stated a case to the High Court, asking if the exemption applied.
Charleton J. noted the general rule that dictionaries should not be used as a reference point for judges when interpreting legislation, but felt that a dictionary was appropriate in this case.
What we call in Dublin “dinner hour” may be somebody else’s lunchtime. Someone’s “lounge” may be another person’s “sitting room” or “parlour”. School children may refer to felt-tipped pens as “markers” or “felt-tips”. Gym shoes may be “tackies” in one part of the country and “runners” in another. Introducing a man or a woman as ones “partner” does not mean today what it did 15 years ago. Some years ago it was very common for the friends of a girl who was getting married to organise a “shower” for her; this had nothing to do with water. I feel that a dictionary may help me.
He consulted the Oxford English Dictionary, which provided the following relevant definition of a “roof”:
the structure forming the upper covering of a building or vehicle. the top inner surface of a covered area or space.
Charleton J. found that it is an everyday word with a plain meaning and that this should be reflected in his interpretation of the legislation. He held that the area of the premises concerned was covered by a moveable roof and was not wholly uncovered by a roof or retractable roof.
A roof is a roof.
Therefore, the exemption to the smoking ban relied on by the pub did not apply. The issue pubs with awnings will now have to consider is whether 50% of the perimeter of their awning is surrounded by walls.
Today is National Famine Commemoration Day, which marks the Great Famine in Ireland. It is more a day of sombre reflection than celebration, but forms the hook on which I hang this: my first time hosting Blawg Review.
The Great Famine looms large in Irish history. It remains an issue, evidenced by the report in today’s Irish Times that there were “raised eyebrows at the absence of any representative from the British embassy” at a commemoration ceremony. Recently, controversy also erupted over plans to hold an auction of Famine artefacts. The collection to be auctioned appears to have survived thanks to the document retention policies of Irish lawyers.
The collection was held by Stewart and Kincaid, a Dublin law firm that acted on behalf of landlords in the 1840s. Thousands of letters were sent to the law firm by rent collectors and sub-landlords explaining why their tenants had not paid, and by clergymen asking for compassion to be shown to starving parishioners. The documents were stored at another Dublin law firm until a decade ago when it is said they decided to throw them out as they were not relevant to the business.
While Hollywood has occasionally concerned itself with the bellicose aspects of Irish history, there has been little dramatisation of the Great Famine. There is, however, Death or Canada, a docudrama which aims to tell “the compelling tale of how in 1847, the British Colony of Canada gave refuge to tens of thousands of Irish famine victims, who in turn were responsible for the building of North America as we know it today.” I missed it when it was broadcast on RTÉ but, having viewed the website, the IP lawyer in me can’t help but wonder if the logo used constitutes a State emblem and, if so, whether government consent was sought for its use.
On the topic of intellectual property and the movies, it seems that Iron Man 2 is “the most expensive movie ever made about an intellectual property dispute.” Maxwell Kennerly argues that the armoured suit at issue is not patented, but rather the subject of a trade secret. Unfortunately, I can’t read either post as I have yet to see the film and don’t want to prejudge the dispute.
Here in Ireland, there currently appears great interest (at least in media circles) in new constitutions and Second Republics. The debated deficiencies in the Irish constitution make an interesting contrast with that of the UK, which is thought to have worked well in producing a government from the “hung parliament” that the British electorate returned.
Instead of ushering in a ‘new republic’ or ‘renewed republic’ by means of a new Constitution, we ought, I [say], to try to re-imagine our relationship with the State and to become more deeply engaged with the Constitution that we have.
undercurrents of 1930s fascism, or at any rate the Mediterranean version of it as found in Salazar’s Portugal with state-sponsored corporatism; the particular ethos of the Roman Catholic church at the time (which was anything but progressive or liberal); the kind of rural idyll for what de Valera called a ‘frugal society’; and a view of women that saw them as homemakers subservient to the male population.
The UK doesn’t have a written constitution, but constitutional and rights-related issues are equally topical in that jurisdiction since the Conservative/Liberal Democrat government announced its coalition agreement. Charon QC says that the British “system of law and justice is creaking, underfunded, under developed and is not really meeting the needs of all in society”, but that the new coalition government has not got off to a bad start, with their programme for government including many law reform elements, such as a “freedom bill”. Henry Porter is more forthright:
One of the great pleasures of last week was hearing Jack Straw speaking on the Today programme in that patient, reasonable way of the true autocrat, and suddenly realising that I never have to pay attention to him again. Nor for a very long time will I have to listen to Mandelson, Campbell, Clarke, Smith, Reid, Falconer, Blunkett, Woolas or Blears: they’re history and the New Labour project to extend state control into so many areas of our lives is incontestably over.
The coalition results from what they refer to as a “hung parliament” in the UK. This is the default arrangement in Irish politics, where coalitions are an established and often unfortunate part of governance. Now that the UK is flirting with European-style coalition government, it might alsoconsider the introduction of a written constitution.
Of course, written constitutions do not necessarily result in fewer troubles: the unresolved issues of blasphemy and abortion in the Irish Constitution receive attention from Eoin O’Dell and Brook Elliott-Buettner, respectively.
The Guardian has launched a new legal section including an already-excellent selection of blog posts from its Guardian Legal Network. It has devoted a good deal of attention to a big US story combining law and politics: President Obama’s nominee for a vacant Supreme Court seat. It is unfortunate that the sexuality of the nominee is an issue but, more so, it is quite bizarre that a photograph of the young Elena Kagan appears to have sparked such speculation.
The incident, which has shades of The Contender, highlights to Irish eyes the level of scrutiny, professional and political, which surrounds judicial appointments in the US. The highly politicised appointment process may be alien to Irish lawyers, but there is something impressive about the fanatical examination of a nominee’s record on particular legal issues.
Our judicial appointments system is superficially independent but remains political and although the process is far less politicised than in the US, it is still “shrouded in mystery“. Edward McGarr discusses one of the long-running issues in the Irish judiciary: the lack of independent oversight. It seems a judicial council might finally be on the way, but:
What complaints will it receive? Possibly not all it should.
Though I don’t hold such lofty aspirations as a seat on the Irish Supreme Court, I am glad to know that, should the opportunity ever present itself, my humble undergraduate results are unlikely to be pored over by the blawggers at the Wall Street Journal, of whom Jess Bravin informs us that Kagan got her worst grade, a B- in torts.
She did marginally better in Criminal Law, with a B, and managed a B+ in Administrative Law. For the rest, it was all A or A-, except for passing ungraded courses in Accounting and Copyright.
A tenuous Irish theme got me the job of hosting this Blawg Review, so, given my Limerick location, I can hardly miss the opportunity to throw in another such theme by reproducing Madeleine Begun Kane‘s Kagan limerick.
“Obama’s Katrina,” they say.
“Obama’s H. Miers,” they pray.
To the wingnuts give thanks
For reminding the ranks
Of the many ways Bush went astray.
The future is … ?
The rather terrifying way in which we may be sleepwalking into a potential dystopian future was highlighted by two issues covered in blawgs this week: Facebook’s privacy practices and the rise of “personal genomics”.
the Net is an astonishing achievement with the potential, only partly but tantalizingly realized to date, to become a true milestone in the history of human communication and a possibly unstoppable force for the spread of liberty and freedom around the globe.
He says that the internet is “under siege” and that work must be done to keep it open. He differs, however, with Kouchner as to what the threats to the internet are. It is clear that, like Google, Facebook now intends to become “the internet” for many of its users and as ever, the threat may come from governments and large corporations rather than extremist groups.
The manner in which it changes privacy policies and settings has come under fire and the EU’s Article 29 Working Group (Brussels-speak for the European group of privacy regulators) says that these changes are unacceptable. However, Benn Parrargues that protecting privacy is up to users, not Facebook; though he does agree that the changes should have been better communicated. He is surprised that the media has “pile[d] up” on Facebook over the privacy issue, but surely such pressure merely reflects the fact that the site has gained such critical mass that, like Google, it has become the establishment and must expect such critiques.
(By the way, like everything these days, the Irish National Famine Memorial Day has a Facebook page.)
Google’s CEO, Eric Schmidt, famously said:
If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.
Which sounds suspiciously like the “innocent have nothing to fear” defence, excellently filleted by Eoin O’Dell.
Businesses scared of the internet might be tempted to shut down access to social media sites like Facebook, but David Donoghue gives some advice to them about adopting a realistic social media policy. This may be of interest to Irish journalists, who recently underwent a period of public introspection when the unconfirmed death of one of the country’s most popular radio presenters became the subject of twitgossip (twossip?). The controversy resulted in plans to introduce a social media policy in the country’s largest broadcaster.
While the online sphere is increasingly regulated by private enterprise, it is refreshing to see this creative workers’ rights protest, staged in the lobby of a hotel, proceed without being shut down or silenced by the hotel’s management (though one expects they were taken by surprise by this all-singing-all-dancing troupe of protestors) (from Waging Nonviolence).
21st Century privacy concerns won’t be online-only: Dan Vorhaus outlines recent developments in direct-to-consumer genetic testing and asks whether regulation is on the way. He says that the debate has long existed as to whether “individuals are capable of handling their own genetic information” and concludes:
Tests once predominantly available only to early adopters capable of seeking them out online will now begin to appear on the shelves of thousands of neighborhood drugstores nationwide. To a greater degree than ever before, genetic testing will soon be available to mainstream America (and subject to the impulse buy). And that, for better or for worse, may be all that it takes to convince some regulators that the time for action is finally at hand.
As with Facebook, there is a gap between theory and reality, between policy and consumer action. These products, whether they be Facebook’s instant personalisation service or chemist shop genetic tests, are flooding the market. Thought as to how they should be regulated struggles to keep up. Meanwhile, Ted Hennessydiscusses the scarily-titled Genetic Information Non-Discrimination Act 2008 in the context of employment law. On this side of the pond, we similarly regulate the use of genetic data, but have tucked such regulation away in less exciting secondary legislation.
Of course, genetic discrimination is merely a veiled, sophisticated form of old-fashioned discrimination, in relation to which Bill Egnormakes some very good points as he notes the difference between immigrants of colour in the US and Irish illegals, who might pass below the radar.
It is the obvious problem with uneven enforcement that makes this law so pernicious. Who does an immigrant look like?
Such double standards are not unknown in Ireland, where Eastern European and non-European immigrants are called “non nationals”, but English, French, American and German residents are referred to by their nationality. And here, of course, Irish immigrants in the US are known as “undocumented“.
Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.
The nature of a registered business name (RBN) is a common source of confusion and misunderstanding. A frequent misconception is that an RBN is a form of trade mark: it is not. Having an RBN is a simple compliance requirement and does not offer any protection in the name registered.
By an individual (as a sole trader). An individual running a business is personally and fully liable if sued. Sole traders do not have to register with the Companies Registration Office (CRO) and are governed by the general law, rather than any specific regulatory law.
By a partnership. The individual members of the partnership are jointly and severally liable if sued. Most partnerships do not register with the CRO. They are governed by the Partnership Act 1890. When sued, the defendant is listed with the individual partners named individually along with the partnership name (eg. Joe Bloggs v. Jane Bloggs, Jack Bloggs and Joanne Bloggs, practising under the name and style of Bloggs & Partners Solicitors).
By a limited company. There are various types of limited company and additional incorporation options have been proposed. Unlike a sole trader or partnership, a limited company is a legal person in its own right, distinct from its shareholders. The liability of shareholders is limited in accordance with the share structure of the company. The Companies Acts regulate the operation of limited companies.
Using a business name
Whatever of the above structures one uses to carry on business, an RBN will often be necessary. Where a name is used in the course of business that is not true name of the business, the Registration of Business Names Act 1963 requires that the name is registered with the CRO.
The following are common examples of when registration is required:
Jane Bloggs runs a corner shop. If she calls the shop Bloggs’ Stores, she must register that as an RBN. She will then be Jane Bloggs trading as (t/a) Bloggs’ Stores.
Joe Bloggs runs a construction company, Joe Bloggs Construction Limited. If the company trades as Bloggs’ Builders it must register that name. The company will then be Joe Bloggs Construction Limited t/a Bloggs’ Builders. A company cannot trade as another company – eg. Joe Bloggs Construction Limited t/a Bloggs Limited.
Why must you register?
The system of business name registration allows other people to find out who runs the business. This is not a problem if a business is run under a person’s own name or under a company name, which can be searched against in the CRO. But if an assumed name is used, how is a customer or supplier to know what legal entity is behind the business? The question often arises as follows: who do I sue?
The requirements of the Registration of Business Names Act 1963 are often not observed and, it would seem, enforcement is not a priority. The equivalent legislation in the UK was repealed in 1982 and business name registrations are no longer possible there.
What a business name is not
A form of company. You might register a business name with the CRO, but this is not incorporation. The registration merely puts on public record that the registrant carries on business using the registered name.
A trade mark. A registered business name is not a form of intellectual property and it offers no exclusive right to use the name registered. It is not a trade mark, registered or otherwise. In fact, duplicate entries are often found in the register of business names. By contrast, a particular trade mark can only be registered once.
Letting people know
If a business uses a registered business name, all business letters, circulars and catalogues on or in which the business name appears must contain the following information in legible form:
in the case of an individual, his/her present name, any former names, and his/her nationality, if not Irish; and
in the case of a partnership, the present name and any former names, and the nationality, if not Irish, of all the partners in the firm.
An additional set of disclosure rules apply to Irish-registered companies, whose letters, notices, publications, order forms and websites must contain specific information.