Nature of restraint
5.265 Solicitors may advertise their services, subject to restrictions contained in the Solicitors (Amendment) Act 2002 and the Solicitors (Advertising) Regulations 2002. The legislation and regulations regarding advertising set out what a solicitor is prohibited from doing when advertising (a “blacklist” approach) and also what a solicitor is permitted to do when advertising (a “white-list” approach).
5.266 For example, section 3 of the Solicitors (Amendment) Act 2002, permits only advertisements that include:
“Basic details, such as name, address and other contact details;
Qualifications and experience;
Factual description of legal services provided by the solicitor and areas of the law these services relate to; and,
Charges or fees.
Any other information specified in regulations.”
5.267 On the other hand, section 9(a) of the Solicitors (Advertising) Regulations 2002 prohibits advertisements that:
“include words or phrases such as ‘no win, no fee’, ‘no foal no fee’, ‘free first consultation’, ‘most cases settled out of court’, ‘insurance cover arranged to cover legal costs’ or other words or other phrases of a similar nature which could be construed as meaning that legal services involving contentious business would be provided by the solicitor at no cost or reduced cost to the client;
include any cartoons;
include dramatic or emotive words or pictures; or
make reference to a calamitous event or situation;
refer to willingness to make hospital or home visits.”
5.268 Solicitors are also precluded from asserting specialist knowledge in any particular area of law, but may as a matter of factual accuracy state what legal services are provided.266
Effects of restraint
5.269 The constraints on advertising are not limited to personal injury claims and have broader effects, including on services that are unrelated to personal injuries claims. New firms can be disadvantaged, to the benefit of already known incumbent firms, by the limits placed on either the substance or form of advertising. Regarding the latter, restrictions on size, location, image, font and other form and content restrictions, can limit the effectiveness of advertisements and advertising campaigns. The restrictions regarding specialisation also constrain consumers from obtaining valuable information.
Rationale offered for restraint
5.270 As noted earlier, the controls on solicitor advertising focus particularly on personal injuries claims and in that context seek to avoid the costs to society of excessive and unnecessary litigation.
5.271 More generally the Law Society cites consumer protection as the main reason for imposing certain restrictions on advertising:
“consumers can easily be misled, and the competitive process distorted, if solicitors are able to engage in the more persuasive forms of advertising that may be perfectly acceptable for the advertising of frequently purchased consumer goods. Moreover, the circumstances of the user of legal services can make him or her particularly vulnerable to the more aggressive and potentially misleading forms of advertising, for example, in the case of the bereaved or recently injured.”267
Analysis of the Competition Authority
5.272 Truthful and objective advertising provides clients with useful information and helps them to choose among solicitors. The legislation and regulations governing advertising by solicitors combine a white-list (what is permitted) and a blacklist (what is prohibited). A white-list may restrict a solicitor from advertising in a manner which is not included in the white-list but is not misleading or inappropriate. This approach can stifle
innovative and creative ways of advertising and delivering legal services. Blacklists are more beneficial for competition, provided they are not all encompassing, as they allow practitioners to advertise as they wish provided they do not breach the particular rules which have been laid down.
5.273 The objectives of the current advertising restrictions, namely to prevent unnecessary and costly litigation in personal injuries, and to more generally protect the public from being misled, are valid. However, the current restrictions are disproportionate, particularly with respect to the provision of services not related to personal injury claims.
5.274 In seeking to limit excessive and costly litigation in relation to personal injuries, the regulations carry with them the risk of overly restricting advertising for other legal services. Other measures have recently been introduced in relation to personal injury claims, such as the Personal Injuries Assessment Board (PIAB) and the Civil
266 These requirements are set out in Regulations 4 (a) (iv) and 4 (b) (iii) of the Solicitor (Advertising) Regulations 2002. 267 Submission of the Law Society of Ireland to the Competition Authority, July 2005, p 62.
268 The Minister for Justice, Equality and Law Reform described the purpose of the legislation in the following terms: “By introducing new penalties for
fraudulent and exaggerated claims it tackles the so-called ‘compensation culture’. The Bill also provides for major procedural changes in relation to personal injury actions to reduce the time taken and the costs involved in processing such actions.” Mr Michael McDowell TD Dail Eireann –
Volume 588 – 30 June 2004 Civil Liability and Courts Bill 1998 [Seanad] : Second Stage.
269 This restriction is set out in sections 4 (a) (iii) and (iv) of the Solicitors (Advertising) Regulations 2002.
270 Section 4, subsection 8, of the Solicitors (Amendment) Act 2002 gives the Law Society the statutory authority to establish regulations to allow Liability and Courts Act 2004, both of which also seek to control unnecessary and costly litigation,268and
consequently there is less need to rely on advertising restrictions as a means to limit personal injury litigation. 5.275 The Competition Authority’s most immediate concerns centre on some of the prohibitions on solicitor
advertising. For example, solicitors cannot claim in advertisements that they are specialists in a particular area of law.269 Rather, solicitors are permitted only to state as a matter of factual accuracy, the areas of the law in
which they have past experience. As currently drafted, the regulations appear to imply that a solicitor claiming to be a specialist necessarily claims to have superior knowledge relative to other solicitors, which is prohibited. The Competition Authority does not agree that there is sufficient justification to prohibit solicitors claiming to be specialists. This restriction reduces the information content of advertising to consumers. Allowing solicitors to advertise more explicitly their areas of specialisation would assist consumers to better identify solicitors able to meet their needs.270
5.276 There are various other blacklist items which the Competition Authority identifies as worthy of further review. These include the restrictions on, and in some instances total prohibition of: certain locations, sizes of advertisement, sizes and variations of font, use of cartoons or reference to calamitous events. It is not clear, for example, why solicitor advertising should not be allowed on buses, nor why it is necessarily inappropriate to advertise in newspapers. Nor is it clear why a solicitor who has authored books or articles, should not be able to circulate these at no cost to recipients.271 It is not clear that the existing regulations are a proportionate way
to protect consumers. The Competition Authority does not, however, propose to make a firm recommendation on the above matters at this time.
5.277 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 body272to undertake a more thorough review of
solicitor advertising restrictions. Any such review could include analysis of whether it is necessary for the Law Society to have a role in allowing solicitors to be called specialists.
Solution
5.278 As an immediate measure the Law Society should amend the Solicitors (Advertising) Regulations 2002 to include specific provisions, consistent with the Solicitors (Amendment) Act 2002, for the Law Society to allow solicitors to advertise as specialists in their chosen area(s) of the law.
5.279 In the longer term, the Legal Services Commission should be responsible for monitoring solicitor advertising. The Legal Services Commission’s role would include identifying priority areas of reform, which are consistent with public policy objectives and of benefit to consumers.
Recommendation 17:
Remove unnecessary restrictions on solicitors’ ability to advertise
Details of Recommendation Action By
The Law Society should amend its Regulations to enable the The Law Society designation of solicitors as specialists and to allow such
solicitors to advertise as specialists. December 2007
The Legal Services Commission should be given the power Minister for Justice, Equality and Law to monitor and analyse solicitor advertising and to identify Reform
and promote reform where this will be consistent with public
policy objectives and beneficial to consumers of legal services. June 2008