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.

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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?!”