Tag: law society

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 WordPress.com 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.

Objections to the proposed Irish tobacco plain packaging law: an overview

Ireland is obliged by international law to reduce smoking. In the last decade we took the initiative by restricting advertising and sponsorship and introducing a workplace ban. Current Government policy goes much further: a tobacco free Ireland in 11 years. The next step toward that goal is to remove branding from tobacco products, just as the Australians did two years ago. The Oireachtas Joint Committee on Health and Children is considering a law that would make all cigarette packets look the same, containing government notices alone.

The tobacco industry lobbied ferociously against the Australian plain packaging law, but it was passed. They sued the Australian government and lost. They are funding tobacco-producing nations in taking a case to the World Trade Organisation alleging that Australia has breached international law. But intellectual property and trade laws don’t trump health protection. The Australian High Court said that intellectual property is designed to serve public policy as well as private interests. Australia implemented its law to fulfil its commitments under the World Health Organisation convention on tobacco control (FCTC). Ireland has also signed and ratified the FCTC, and while the convention doesn’t strictly require plain packaging laws the WHO encourages them. The Minister for Health’s policy of a tobacco free Ireland by 2025 was announced as an FCTC implementation measure.

The Oireachtas Joint Committee sought submissions on plain packaging and recently held hearings. Unsurprisingly, it received opposition from the tobacco industry. The industry made four core points:

  1. there is no evidence that the law will reduce smoking;
  2. it would breach national and international law;
  3. it would lead to an increase in counterfeiting and
  4. it will damage Ireland’s reputation for protecting intellectual property.

The Law Society made submissions, drafted by its intellectual property committee, which made the very same four core points as the industry, in almost identical terms. They gave no alternative view or guidance on the existence or strength of arguments that could be made against the claims of the industry.

The tobacco industry and the Law Society, of course, have a point: these laws fundamentally restrict intellectual property rights. But intellectual property rights are negative: they allow you to stop others using similar names. They do not, in themselves, give you the right to use them. Trade mark law allows authorities to refuse the registration of a trade mark if the mark is contrary to public policy.

Drug companies cannot advertise directly to consumers in Ireland. Pharmacists are required to suggest generic alternatives to branded products. These regulatory measures challenge the intellectual property rights of drug companies, who also happen to be significant foreign direct investors in Ireland. But the tobacco industry and the Law Society are not equally concerned about the effects of those laws on “Ireland Inc”. They are more interested in trying to gain support from the food industry. The Director General, Ken Murphy, worries that the next target will be Kerrygold. This ignores the obvious point that consumer foodstuffs are not, by their nature, harmful to public health when consumed as intended. This is not the case with tobacco.

All anti-smoking measures introduced over the past two decades restrict and interfere with the tobacco industry’s interests. Most also limit intellectual property rights, particularly their trade marks. “Marlboro Lights” is a registered Irish trade mark, but it can no longer be used because it suggests one product is less harmful than another. Most would consider such a restriction to be reasonable and justifiable.

The tobacco industry and the Law Society argue that plain packaging laws breach international law, in particular the TRIPS and Paris Conventions. This is not a novel legal debate: the Australians have already been down this road and there are copious academic texts and commentaries on the argument. Respected intellectual property academics like Professors Mark Davison and Matthew Rimmer argue the role of international law may be quite limited. They point to the fact that international law does not give the tobacco industry a right to use their intellectual property. It follows that if a government restricts or prohibits the use of branding, it is not attacking a protected right of the industry.

But the Law Society told the Oireachtas none of this.

The spectre of unconstitutionality was even raised by by the tobacco industry and the Law Society, but they give little detail of this argument and reason by analogy to electricity pylons and planning permission. A highly respected member of the Law Society’s own committee that drafted the submissions doesn’t agree – but this view was not put before the Oireachtas.

The tobacco industry and the Law Society all but ignore the public health motivations of plain packaging and fall back on the weak assertion that there is no evidence to justify it. This is, at best, debateable and, at worst, circular. Evidence that the law will work can only be obtained after introduction. Furthermore, the Australian law was based on significant research and was supported by leading health experts. After the law was introduced calls to smoking quitlines soared and the rate of smoking declined. Even supporters caution that it is too soon to know if the law caused that reduction, but the indications are positive.

The tobacco industry and the Law Society are also concerned about counterfeiting because, they say, plain packs will be easier to copy. The argument is nonsense and when the Gardaí and Revenue Commissioners told the Oireachtas that they did not expect an increased workload as a result of a plain packaging law, the Law Society dropped the claim. The argument is also contradictory and the tobacco industry has long maintained that all paper-based packaging is easy to counterfeit. In fact, the most difficult element of packaging to copy is the Revenue stamp, which will still appear on plain packs. As Cancer Research UK point out “The reality is that all packs are easy to counterfeit and that plain packaging will not make any difference.”

Australia is the only country to have introduced plain packaging and it has done so very recently. Firm evidence of the success of the law is not yet available but the signs are positive. There are very convincing arguments against legal objections to such a law, but the Law Society failed to bring them to the attention of the Oireachtas.

Time to end willful ignorance on tobacco packaging and lobbying

Controversy over the submissions of the Law Society on proposed plain packaging law for tobacco products continues.

It seemed, initially, that the Law Society was going to take the concerns raised by myself and a number of colleagues seriously. I was told that certain things would be looked into and a proposal was going before the Council of the Law Society in relation to lobbying. But we were also referred to as a “vested interest” (!) by the President of the Law Society who subsequently dismissed our views as “conspiracy theories” and has effectively refused to look into the issue any further.

A member of the Council of the Law Society has written an article which is distinctly dismissive of our concerns, despite the following admission:

it’s important to note that what this column knows about IP law could be written on the back of a plain cigarette packet with room for several “SMOKING KILLS” reminders, so we are not taking sides here

When they appeared before the Oireachtas Joint Committee on Health & Children, the President and Director General were also at paints to point out that IP was not an area they specialised in. The problem with the submissions is that if they are examined with any reference to people who do have knowledge of IP law it is plainly obvious that the submissions do take sides.

So it is useful to add to the debate a contribution from Dr Matthew Rimmer, a leading Australian IP academic, which has been published here.

In its efforts to thwart the introduction of plain packaging of tobacco products in Ireland, Big Tobacco and its allies like the Law Society of Ireland have marshalled a number of arguments, similar to those which decisively rejected in Australia. It is disappointing that the Law Society of Ireland has been promulgating a number of myths promoted by Big Tobacco. It should better than to uncritically adopt the rhetoric and the talking points of the tobacco industry … Rather than listen to Big Tobacco’s phony arguments about trade and intellectual property, Ireland should introduce the plain packaging of tobacco products to protect the common good and the public health of its people.

Tobacco packaging and intellectual property law

Photo by http://www.flickr.com/photos/sludgeulper/
Misty water-colored memories, of the way we were

The Oireachtas is currently considering a draft law that would introduce mandatory “plain packaging” of tobacco products. Last week, the Law Society appeared before the Oireachtas Joint Committee on Health and Children to make a presentation opposing such a law. RTÉ’s Prime Time covered the issue on Monday evening.

From Irish Cancer Society
I’ve seen the future and it will be; I’ve seen the future and it works

A written submission was made by the Intellectual Property Law Committee of the Law Society in December 2013.

Videos of the Law Society’s appearance before the Joint Committee appear at the end of this post.

A number of issues arise, both from the point of view of the proposed legislation itself and in relation to intellectual property rights. Australia has led the way in introducing a plain packaging law and its courts have upheld the measure. A case is underway under the World Trade Organisation dispute resolution system.

One of the main arguments, made both by the tobacco industry and the Law Society, against plain packaging is that such laws may breach international treaties on intellectual property. The Australians have already been down this road, so it is worth looking at their experience and commentary.

no right of use exists under either Paris or TRIPS and … Article 20 of TRIPS has [a very limited role] in the context of the debate surrounding the legislation

An important theme of the [Australian] ruling [which upheld their plain packaging law] concerned the nature and role of IP law. The judgments stressed that IP law is designed to serve public policy objectives – not merely the private interests of rights holders.

  • Following the introduction of the plain packaging law, Australia dropped a rank in the Global Intellectual Property Center International IP Index – from fourth place internationally, to fifth. That ranking has itself been criticised by IP experts. It is notable that, in the context of the Law Society fearing that a plain packaging law would damage our international standing, Ireland does not feature at all in the GIPC index. According to Mark Summerfield:

In a number of places the GIPC somewhat disingenuously neglects to mention that the restrictions are limited to tobacco products.  For example, in its summary of key findings, under the heading ‘Moving Backwards’, it contends that ‘Australia’s plain packaging requirements severely limit the ability of trademark owners to exploit their rights, and send a chilling message to brand owners interested in selling in the Australian market’, as well as making a point of the fact that ‘[i]n 2013, five countries brought action against Australia in the WTO on the basis that the new law violates Australia’s WTO commitments.’

As far as the contribution to the index is concerned, Australia scores zero, out of a possible one point, in the category of ‘non-discrimination/non-restrictions on the use of brands in packaging of different products.’

That’s right, a total fail, on the basis of a restriction which applies to just one category of products, which is applied for the purpose of furthering public health policy!

The tobacco industry and the Law Society are also greatly concerned about counterfeiting. The Law Society submission stated:

plain packaging can only lead to an increase in counterfeit activity … The lack of distinguishing features on plain packaging will make it significantly easier to produce counterfeit tobacco products.

At the hearing of the Joint Committee, the Law Society effectively abandoned this point after representatives of An Garda Síochána and the Revenue Commissioners gave evidence that they did not expect to have to deal with an increase in counterfeiting activity on foot of a plain packaging law. According to Cancer Research UK, the argument does not hold water.

The least one can say is that the tobacco industry is very inconsistent in their main argument that plain packs will be easy to copy. On the one hand they claim that plain packs are easy to counterfeit, on the other they insist that counterfeiters already copy all paper-based material at short notice, even the most sophisticated tax stamps. The reality is that all packs are easy to counterfeit and that plain packaging will not make any difference.

An argument is also put forward that there is no evidence that a plain packaging law would be effective in reducing smoking. This argument is highlighted by the industry and the Law Society on the basis that, in the absence of such evidence, a plain packaging law may be unjustifiable and disproportionate. I am somewhat confused as to the points made in the written submissions and those made at the Joint Committee hearing regarding justifiability and proportionality and those elements appear to have been conflated in relation to intellectual property law and constitutional law. Nevertheless, the argument seems weak in an Irish context and at least in relation to the Constittuion, one Irish intellectual property expert has concluded that “on balance, plain packaging legislation is unlikely to be struck down on Irish constitutional property grounds”.

The tobacco industry commissioned its own research which, unsurprisingly, is inconclusive as to whether or not plain packaging laws have any effect on smoking rates. There appears to have been a reduction in smoking since the law was introduced in Australia, but the industry says that reduction in not statistically significant. Of course, the Australian law is still relatively new so the most that can be said is that it is too soon to say. Thankfully, the Australian media have fact-checked the industry’s claims. It certainly seems that the law has had an immediate impact:

Calls to the NSW Quitline increased by 78 per cent in the four weeks after the world-leading move in October 2012 before starting to taper off. “Our study demonstrates real behaviour change following the introduction of plain packaging,” said lead author University of Sydney Professor Jane Young. The response was more immediate and lasted longer than the 2006 introduction of graphic health warnings, said Prof Young, who is also scientific director at the Cancer Institute NSW.

Australia is the only country to have introduced a plain packaging law to date, and it has done so very recently. Therefore the evidence of the practical effects of such a law is not yet available and conclusions on the legal position of such a law remain to be tested. As things stand, it is clearly an area in which there is a significant level of debate and certainly very strong and convincing arguments against the position of the tobacco industry in relation to intellectual property law.

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.

What?!

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?!”

Aftershock: legal profession

I’ve been blogging about the legal profession’s own private economic crisis since January 2010 but haven’t had time lately to write any updates. Luckily, Flor McCarthy has an excellent blog post on the recent developments. He accurately sums up the frustration felt by many solicitors on the issue:

So for as long as the music kept playing [the SMDF, “run by solicitors for solicitors“] was a great system for all participants. Those paying the premiums felt that they would be looked after by their own in the event of a claim and the lucrative negligence defence work that flowed from this activity was passed out to well connected firms.

But then the music stopped and it turns out the SMDF is the fat kid without a chair. It’s broke. And now it’s looking for the rest of the professional to bail it out.

Effectively, to draw an analogy with the problems affecting the Irish economy over the past few years, the crisis with the SMDF has moved from bank guarantee territory to recapitalisation territory. Solicitors are now faced with a levy of €200 per solicitor per year for at least 10 years in order to avoid a doomsday scenario whereby a large number of negligence claims would not be covered by insurance. This could result in a significant number of bankruptcies on the part of solicitors and unpaid damages on the part of clients.

SMDF

The justification for the levy is that the reputation of the profession would be damaged if this were allowed to happen. There is also the internal justification of “standing by” fellow colleagues who might otherwise go to the wall. For many solicitors, it has come as quite a surprise to learn that the SMDF wasn’t really providing insurance at all, just a form of quasi-insurance by which cover might be available. Hard to swallow for solicitors who have paid tens of thousands annually for that cover.

The latest news is that an EGM was held last night. It was initially called for the purpose of voting on the levy proposal but a spot of solicitor activism meant that a postal vote of the entire profession must now be held. The proposal will probably be carried, despite grumbles.

Once the SMDF is out of the way, the profession faces a proposal from the Law Society to impose a weird “global policy” where all solicitors will be offered cover at set rates and will not be able to arrange their own cover (or get competing quotes). This system is, in general terms, good for firms who have difficulty getting insurance and bad for firms that don’t. Apparently there will be consultation but the timeframe is narrow. The Law Society’s track record on providing information on these issues has not been great (even where the Government is concerned).

Between the changes expected from the Government as part of the IMF/ECB deal and whatever insurance changes are made by the Law Society, the profession will remain in flux for the forseeable future.

Ceci n’est pas une publicité

There are a number of forms of State-funded legal aid in Ireland but, in summary, they will be of no use to you unless charged with a reasonably serious crime or involved in family law proceedings. The Legal Aid Board is not provided with anything close to the resources needed to actually provide a system of civil legal aid. The Free Legal Advice Centres (which are not part of the State-funded legal aid system) pointed out in a 2005 report on access to justice that:

[T]he Legal Aid Board employs 89 solicitors to deliver the entire civil legal aid scheme in 30 Law Centres throughout Ireland. This is less than the number employed in some large legal firms in Dublin. Small wonder then that waiting lists for civil legal aid in many centres have been extremely lengthy, leaving people without any legal assistance for as long as two years in some locations.

It is almost unheard of for legal aid to be obtained to initiate a civil, non-family law case. In addition, many people who would not qualify for legal aid would still find it prohibitively expensive to fund many cases (particularly those relating to serious personal injury or medical negligence). Conditional fee arrangements, commonly known as no foal/no fee, fill the void. Despite this fact, cases which usually involve such arrangements are often characterised as being somehow of questionable merit or a feature of ambulance chasing.

It is, presumably, fear of the profession being tarnished by such characterisation that led the Law Society to severely restrict how solicitors can advertise their services. I wrote about this topic before, mentioning that solicitors can’t advertise the fact that cases might be taken on a conditional fee basis. John McCarthy recently highlighted the ludicrous nature of the advertising restriction.

… I as a solicitor cannot take out an ad offering my services to you on a no win, no fee basis. It does not mean that I cannot provide services to you on this basis, because that is exactly what I do for clients every day. It does not mean that we cannot have a discussion about it, such as what we are doing here. It’s a pretty silly regulation when you think about it.

Such advertising is considered so serious that to engage in it is a matter of professional misconduct and can result in such a finding by the Solicitors’ Disciplinary Tribunal. Despite this, the Citizens Information Board tells citizens that many solicitors do take cases on a no foal/no fee basis. The Board, a statutory authority, essentially does what solicitors are prohibited from doing.

Fee arrangements are currently the subject of debate in the UK, where reform proposals are under consideration that could seriously impact on access to justice. Ironically, the current UK system of allowing success fees to be recovered from the losing side was designed to avoid footing a legal aid bill for personal injury claims: the same motivation explains why the Irish Citizens Information Board tells people that many solicitors work on a no foal/no fee basis.

Andrew Dismore suggests on the Guardian website that the UK reforms might only reduce legal costs by scaring potential claimants off.

They are playing on claimants’ worst fears: the threat of uncertain and unlimited legal bills. If the government wanted to reduce legal costs fairly, they should start by giving insurance companies incentives to accept liability and make sensible offers earlier, not by making it harder for the public to enforce their rights to get justice.

Lest people dismiss the access to justice argument on the basis that no foal/no fee arises only in relation to inflated claims arising out of minor soft-tissues injuries, Dismore gives a particularly good example of the type of injustice that could result from the reforms.

Martyn and Christine Harrison’s daughter Sophie was appallingly injured in a road accident in April 2009. She died two days later, when Martyn and Christine made the hardest decision anyone could make by agreeing that her life support machines should be switched off … The Harrisons borrowed the funeral expenses from Sophie’s grandparents because they couldn’t afford them. Their predicament became worse when they sought legal advice. They had problems finding a lawyer because Sophie had been 18 years and one month old when she died. Because she was over 18, her parents were not entitled to bereavement damages. No one wanted to help until they found a solicitor in Sittingbourne, who took their case on a conditional (“no- win-no-fee”) basis to try to reclaim the funeral costs and compensation for Sophie’s pain and suffering for the two days she survived after the accident. As a result of his efforts, Martyn and Christine recovered the funeral costs of £3,151 and £1,599 for Sophie’s pain and suffering.

Dismore’s charge that the UK Government’s proposals are unfair because they favour insurance companies have some resonance here. Solicitors have long complained that the Personal Injuries Assessment Board (now styling itself InjuriesBoard.ie, with television ads in recent years reminiscent of those seen in the UK on the part of claims agencies) is a creation of the insurance industry which favours that industry over citizens.

McGarr Solicitors wrote, before the election, that the new government should abolish PIAB on the grounds that it is unfair to injured parties. Unfortunately, as I regularly complain, the views of solicitors are routinely discounted on the basis that solicitors are a vested interest concerned only with securing huge fees and rarely with justice. It is essentially with that argument that the insurance industry convinced the Irish government to create a system of claim handling that attempted to remove solicitors from the equation and provide the industry with extra options when defending claims. The Board appears to see solicitors as providing an entirely unnecessary, luxury service and go to great lengths to give the impression that solicitors have no role in personal injury claims. Note their FAQs:

you may choose to engage an agent (e.g. a solicitor) who will submit the application on your behalf. You may, however, be liable for some or all of the cost in respect of engaging the agent.

John McCarthy outlines the reality.

The way the insurance industry works is that if you have suffered a genuine loss you have to bring a claim to recover it. However, it pays the insurance industry to drive down the cost of claims by portraying the very act of bringing a claim in an unfavourable light.

The average claimant who has suffered an injury will hope that his/her claim is a one-off and will enter the system with little or no experience of it. Their opposing party, an insurance company, defends claims on a daily basis and has teams of claims handlers and solicitors managing claims. Of course, many solicitors make some of their profits from personal injury claims. But the argument for involving solicitors in such claims is not about increasing profits, rather it is about equality of arms.

Endnote: here’s some great lawyer advertising from the US. But: is it appropriate? It would certainly raise a few questions under the Irish regulations.

Solicitors await a “deluge of legislation” from the next Minister for Justice

© Alan Shatter and/or licensors
"He needs your No 1 vote or he may resort to his phaser weapons."

Fine Gael will probably have the choice of Minister for Justice & Equality and the position is expected by many to go to Alan Shatter, veteran solicitor, politician and publisher of colourful pamphlets.

Shatter was recently interviewed by Stuart Gilhooly for The Parchment and made the following comment, which is either exciting or terrifying depending on your outlook:

He wants a legacy. He wants to change the way the country works. He wants to make a difference. And you get the feeling that if he gets his chance, three decades of frustration will be released by a deluge of legislation.

Much of this deluge may be to the benefit of solicitors. For example, traditions that tend to afford barristers a higher professional status could be done away with: “silly nonsense such as wigs and position in court is treated in contempt” by Shatter. However, given his views on solicitor advocacy and the traditions of the bar, he is surprisingly reticent to offer a definitive view on whether the professions should be amalgamated.

If we are to have modern legal services, there are a few sacred cows that need to be dealt with. The differentiation between solicitors and barristers is going to become more clouded. The question of whether it will be a piecemeal evolution or a structured evolution that is effected by agreement in legislation is an interesting issue.

He goes on to say that solicitors should be admitted to the bar, that changes to solicitors’ costs are on the way but might not be drastic and that the Law Society does a reasonably good job of regulating solicitors. He also “believes that [the] proposed Legal Services Ombudsman who will shortly be appointed may well be sufficient in terms of independent regulation”.

© IMFThe elephant in the interview room was, of course, the IMF. The agreement reached between the Irish Government and the IMF for financial support requires the following structural reforms of the legal professions:

  • establishment of an independent regulator;
  • implementation of the Legal Costs Working Group report; and
  • implementation of the Competition Authority report.

These high-level items provide little detail of what might actually be implemented, unless one assumes that the reports mentioned are implemented in full with no tailoring. Whether or not individual members of the professions agree with the proposed reforms, it is likely that all Irish lawyers would agree that reforms are necessary. As argued by Eoin O’Dell:

It is sad that our governments have not implemented these recommendations of the Legal Costs Working Group and the Competition Authority; indeed, it is doubly sad that it takes an external agency like IMF to insist that these recommendations are in fact implemented.

These reforms must be implemented before the end of 2011 but there has been little news and, as far as I am aware, no communications from the Law Society about the changes since they were announced.

Shatter offers a view on reform of the professions which is quite different than that often aired in the media.

Outside the profession, there is talk of non-solicitors doing this work without realising the complexities to be addressed, the level of training you need or the insurance implications. If you want competition, you don’t want work of lesser quality. It is too easy for politicians who are non-lawyers to talk about competition without understanding the necessity to ensure that professional work is properly done. No one has suggested to the medical profession that non-qualified doctors undertake appendectomies because the perception is that removing someone’s appendix is a relatively simple operation.

Of course, many will dismiss such sentiments as tainted by vested interest. Part of the difficulty for solicitors at present is that their views are rarely given any weight due to the public perception of the profession.

Allied to the disruption facing solicitors when the above reforms are implemented are the ongoing difficulties with solicitors’ insurance. On that topic, Shatter says:

It’s hugely important that consumers are compensated for the negligence of solicitors. Insurance must remain mandatory. The conveyancing area is where a lot of problems arose. Solicitors who were less than expert in conveyancing were charging fees that had no economic reality and short-circuited the work they were doing.

From anecdotal evidence, 2011 will be a horrific year for many solicitors with rumours that a number of successful practices will close. Given that job protection and creation is a core aim of all parties, one hopes that any regulatory changes introduced will not add to the large proportion of the profession which is already unemployed.