Ken Murphy examines the motives behind the Irish government's ban on solicitors advertising for personal injury clients. Ken Murphy is director general of the Law Society of Ireland. Ken Murphy is director general of the Law Society of Ireland.
The Irish government will very shortly introduce legislation to ban all advertising by solicitors which refers to possible claims for damages for personal injuries.
In addition, any advertising by solicitors in an “inappropriate location”, such as a doctor's surgery, will also be outlawed.
At its January meeting, the Law Society Council unanimously decided to support the legislation, on the grounds that such advertising had contributed to the profession developing an “ambulance-chaser” image.
However, the council decided that no wider ban on advertising would be supported. The profession had to be free to compete on a level playing field.
So why did the government take this remarkable decision? It goes against international trends towards the liberalisation of lawyer advertising, and it is directly contrary to the pro-competition principles of the Competition Act 1991 and the Fair Trade Commission Report of 1990 on restrictive practices in the legal profession.
Far more significantly, the ban represents a political response by the government in light of the costly phenomenon of the army deafness litigation.
In recent months, the exchequer finances and public opinion have been rocked by the impact of some 12,000 actions, brought against the State by current or former members of the Irish armed forces.
The actions resulted from the exposure of army personnel to the sound of gunfire on firing ranges. No hearing protection was provided by the Irish army. This was despite the fact that in 1952 – and many times subsequently – the army made regulations which accepted that exposure to the sound of gunfire could cause hearing loss and that hearing protection should be provided.
Adequate protection was finally provided in 1987, and since the mid 1990s, thousands of personnel have claimed awards of up to £60,000.
The Department of Defence has denied liability, despite losing a series of test cases in the High Court (which probably for strategic reasons it never appealed to the Supreme Court). It has adopted the highly expensive tactic of fighting to the door of the court in most cases before settling.
In the weeks immediately before and after last Christmas, the Irish Minister for Defence, Michael Smith, launched a series of attacks on solicitors for promoting this litigation which he believed was “immoral”.
Pressure on the minister mounted as predictions emerged that the cost to the State of the litigation could be as much as £2bn. In reality, it would be surprising if the ultimate cost was more than £500m.
In the early part of this year, the Law Society found itself having to defend the profession on a daily basis against Smith's allegations of touting, overcharging and misconduct. Society spokespersons asserted that the one manoeuvre which the Department of Defence had perfected was the diversionary tactic of creating a smoke screen.
Attacks on solicitors for simply doing their job were designed to distract attention from the government's role in the army deafness litigation.
Decades of negligence by the department, the true cause of the disability suffered by so many of its personnel, as well as high cost to the Irish taxpayer, was no longer the issue at the fore.
Even though only around six firms had published advertisements targeting army deafness litigation, solicitor advertising, like the profession generally, was a government scapegoat.
The decision was taken, on “public policy” grounds, to ban all solicitor advertising that referred to possible claims for personal injury damages.
This was welcomed by business, insurance and public authority lobbies, who have for years tried to blame solicitor advertising for Ireland's so-called “compensation culture”.
Only a small percentage of the profession engaged in this type of advertising. Perhaps ironically, the legislation will also be welcomed by the majority of solicitors who found such advertising in poor taste and undignified for the profession.