EU action against Ireland over rules on lawyer advertising

The European Commission is taking infringement proceedings against Ireland in connection with an alleged breach of a directive which eased restrictions on commercial communications, including advertising, by lawyers and other regulated professionals.

Minister for Jobs, Enterprise and Innovation Richard Bruton and Minister for Justice Frances Fitzgerald confirmed in the Dáil that the proceedings are currently underway in connection with one alleged breach of the 2006 Directive on Services in the Internal Market.

It relates to Article 24 of the directive and the prohibition on commercial communications by barristers, he said. The directive was transposed into Irish law in November 2010.

Article 24 states that member states “shall remove all total prohibitions on commercial communications by the regulated professions”.

Bar Council

Advertising by barristers is restricted by their regulatory body, the Bar Council. They may place certain information about themselves on the council’s website. The

Law Society

imposes restrictions on advertising by solicitors under 2002 regulations but considers itself to have a more “liberal” regime. In particular, solicitors are restricted from certain practices in relation to personal injury advertising.

Independent TD Catherine Murphy asked the two Ministers on March 26th if their attention had been drawn to any case where Ireland was in breach of the directive.

Mr Bruton confirmed there were infringement proceedings under way and Ms Fitzgerald confirmed the European Commission had “expressed a concern” that Ireland’s current legal services advertising regime may be in breach of Article 24.

Ms Fitzgerald said the commission had found that “some of the current restrictions being applied in this jurisdiction may be disproportionate.”

The commission issued a “letter of formal notice” to Ireland to that effect in October last year. “My department is engaged in ongoing correspondence and consultations with the commission with a view to finding an appropriate balance between the exigencies of the Services Directive and those of Government policy including as part of the ongoing reform of the legal services sector,” she replied.

Amendment

The Minister said it was anticipated that advertising provisions meeting concerns in relation to the directive would be put forward by way of amendment to the Legal Services Regulation Bill when it comes before the Seanad.

Section 151 of that Bill enables the new Legal Services Regulatory Authority to make regulations in relation to the advertising of legal services by solicitors and barristers.

Ms Fitzgerald said detailed work on the revised advertising provisions continued on this basis in consultation with the commission and with the assistance of the Attorney General and Parliamentary Counsel.

“In light of these developments I am confident that this matter can be satisfactorily resolved.”

The Bill is due to resume the Dáil report stage on April 21st.

In a separate question last week, Ms Fitzgerald told Ms Murphy she understood there may be “ongoing litigation”, to which the Minister was not a party, in respect of legal services advertising. Ms Murphy had asked the Minister about the implications for those who had suffered a professional loss as a result of decisions taken underneath the “flawed regulations”.

The Law Society investigated 22 complaints for alleged breaches of its advertising regulations in the year 2012-2013 compared to four the previous year, eight in 2010-2011 and three in 2009-2010.