Causas de abstención

5.247 The opinion of the Federal Trade Commission in the Nessun Dorma case highlighted that restrictions on advertising are likely to harm consumers and competition by “raising consumers’ search costs and reducing sellers’ incentives to lower prices”.254 _{The economic expert’s opinion was based on a number of empirical}

studies in the regulated professions which found that advertising restrictions result in consumers paying higher prices.255

5.248 A study by the US Federal Trade Commission256_{examined optometry services in different cities in the USA,}

classified in terms of their restrictions on advertising, and found that restrictions on advertising raised price without affecting quality. The study provided compelling evidence that advertising posed no danger to the quality of healthcare services provided. Eye examinations were just as accurate and thorough, while the workmanship of glasses was of the same quality whether advertising restrictions were in place or not. The findings of this study have been corroborated in later work.257

5.249 Specifically in relation to the legal profession in the US, Schroeter et al examined attorney fees and advertising practices in seventeen metropolitan areas across the US.258 _{The results obtained for the three routine legal}

services examined (a simple will, an uncontested personal bankruptcy and an uncontested dissolution of marriage) highlighted that advertising increased competition among sellers in the market.

5.250 Another empirical paper from the US compared the quality (defined both objectively and subjectively) of legal services provided by a heavy advertiser and the traditional firms in the Los Angeles market. The paper found that there is no reduction in quality of services provided by the heavy advertising firm, rather there may be an increase in quality.259

Analysis of the Competition Authority

5.251 Truthful and objective advertising provides clients with useful information and helps them to choose among competing barristers. Even better informed purchasers of barrister services, including solicitors, can benefit from advertising. For example, not all solicitors will be fully informed of the expertise of particular barristers.260

5.252 Protecting the public interest, maintaining proper professional standards and the proper administration of justice are not only valid, but eminently desirable objectives. Advertising, so long as it is accurate and not detrimental to the administration of justice, is consistent with these objectives. Furthermore, by increasing available information, advertising can contribute positively to competition, client choice and to the

administration of justice. Limiting advertising only to the placing of a barrister’s name and specialisations on the Bar Council website and the Law Directory is disproportionate to the above objectives.

5.253 International experience shows that informative advertising lowers prices without lowering the commitment of practitioners to professional standards. In Ireland, in the case of optometry services, there is no evidence that the quality of eye care services in the State has fallen now that advertising has become a market feature. In any case, the commitment of barristers to professional standards is maintained via the Bar’s Code of Conduct. 5.254 If barristers were permitted to advertise in locations other than the Bar Council’s website, for instance in

journals or newspapers, the advertisements would be subject to existing general legislation prohibiting false and misleading advertising. The Bar Council could also prohibit misleading advertising through regulation. There is no reason to believe that, because a barrister places an accurate advertisement in a newspaper, the administration of justice is undermined.

5.255 As the Bar Council says, it may not be possible to accurately advertise a barrister’s ability by referring to success in Court. Most obviously, the facts of the case, and the clarity of the relevant law, are important factors in determining the outcome of a case.261 _{It is certainly possible, however, to advertise a barrister’s area}

of expertise, as is evident from the fact that this is being done already on the Bar Council’s website without any evident harm to the administration of justice. The scope of this type of advertising could be further

widened by, for example, allowing a barrister to describe his expertise in greater detail by explaining how it was acquired.

5.256 Fee advertising, whether on the Bar Council’s website or in other media would also greatly benefit price competition by allowing potential clients to compare fees and choose barristers of comparable ability who charged less. Given the lack of transparency surrounding how barristers’ fees are set, this would give much more information to potential clients about the costs they are likely to face.

5.257 It is worth noting the European Commission’s view in its Report on Competition in Professional Services:

“There is […] an increasing body of empirical evidence which highlights the potentially negative effects of some advertising restrictions. This research suggests that advertising restrictions may under certain circumstances increase the fees for professional services without having a positive effect on the quality of those services. The implication of these findings is that advertising restrictions as such do not, necessarily, provide an appropriate response to asymmetry of information in professional services. Conversely, truthful and objective advertising may actually help consumers to overcome the asymmetry and to make more informed purchasing decisions.”262

5.258 The Bar Council in its response to the Preliminary Report agrees with this analysis:

“The Bar Council agrees that the current rule impacts on the information available to purchasers of legal services and agrees that truthful and objective advertising gives clients useful information and helps them to choose between competing barristers.”263

5.259 The Bar Council “fully supports expanded advertising by barristers” but to date has not promulgated any new regulations. In its response to the Preliminary Report the Bar Council summarises its views in the following terms:

264 Submission of the Council of the Bar of Ireland to the Competition Authority, July 2005, p 94.

265 This recommendation is not prescriptive in detailing what specific advertising content or advertising media should be prohibited. The drafting of more specific provisions (e.g. identifying specific content or specific media or locations) should be the responsibility of the Bar Council and ultimately the Legal Services Commission.

“ a) The placing of advertising by barristers should be limited to appropriate forums, such as the Bar Council website and diary, legal and academic journals and periodicals.

b) Barristers should be able to advertise the following information about their practices: i. Availability;

ii. Areas of expertise;

iii. Prior professional experience; iv. Publications;

v Pricing.

c) Barristers should be allowed to provide information with regard to the prices of their services. The Bar fully supports transparency of price to the best extent possible having regard to the nature and circumstances of the services supplied by barristers.

d) Advertising by barristers should not be likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute.

e) Advertisements should not include statements about the barrister’s success rate or make direct comparisons in terms of quality with other identifiable lawyers.”264

5.260 The regulations in relation to advertising proposed by the Bar Council are a combination of a blacklist (what is prohibited) and a white-list (what is permitted). Blacklists, provided they are not all encompassing, are more beneficial for competition. A white-list may restrict a barrister from advertising in a manner which is not included in the white-list but is not misleading or inappropriate.

5.261 The Bar Council should adopt a blacklist approach as this will permit practitioners to advertise as they wish provided they do not breach those rules which have been laid down (what is prohibited). This approach encourages innovation and creativity in the way in which professionals advertise and deliver their services. It is, therefore, essential that only those restrictions which are necessary to protect consumers be incorporated in the blacklist.

5.262 A limited blacklist of what is prohibited, suggested below, should be created by the Bar Council by regulations and this should act as the reference point for any disciplinary action which may need to be taken. Given that barristers have been prohibited up to now from advertising, the Bar Council should make it explicitly clear that anything that is not prohibited in the regulations is permitted.

5.263 Consistent with Recommendation 1 in Chapter 3 of this report, it is the Competition Authority’s view that the Legal Services Commission would be the most appropriate body to undertake a more thorough review of barrister advertising in the future.

Solution

5.264 The Bar Council should promulgate regulations to allow barristers to advertise subject to the exceptions outlined below.266

Recommendation 16:

Remove unnecessary restrictions on barristers’ ability to advertise

Details of Recommendation Action By

The Bar Council should promulgate regulations permitting The Bar Council advertising so long as it does not

• Give false or misleading information; or, December 2007 • Bring the administration of justice into disrepute,

or otherwise be considered in bad taste.

The Legal Services Commission should be given the power to Minister for Justice, Equality and Law monitor and analyse solicitor advertising and to identify and Reform

promote reform where this will be consistent with public policy

objectives and beneficial to consumers of legal services. June 2008