All practising solicitors are reminded that the Solicitors (Advertising) Regulations 2002 (SI no 518 of 2002) particularly restrict personal injuries advertising.
The definition of ‘advertisement’ is wide and includes any communication that “is intended to publicise or otherwise promote a solicitor in relation to the solicitor’s practice”. Websites are covered by the definition. In addition, the definition covers websites that are published by a third party, if the intention of the website is to promote a solicitor’s practice – for example, a claims service with a particular solicitor’s name mentioned.
An advertisement published by a solicitor must make clear on its face that it is that solicitor’s advertisement. For example, a website that contains only a telephone number and/or an email address does not comply with the regulations.
The regulations prohibit advertisements that refer to claims or possible claims for damages for personal injuries, the outcome of such claims, or the provision of services by solicitors in conjunction with such claims, and advertisements that solicit, encourage or offer any inducement to make such claims. Any advertisement that contains factual information on legal services provided may include the words ‘personal injuries’.
If a solicitor decides to refer in an advertisement to personal injuries or other contentious business, the advertisement must clearly refer to the prohibition on percentage charging in connection with contentious business.
Any words or phrases that suggest that legal services relating to contentious business will be provided at no cost or at a reduced cost are not permitted. The regulations set out examples of prohibited expressions, 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’. These are just examples. Other expressions with the same or similar meaning are equally prohibited. Such expressions include: ‘complimentary consultation’, ‘complimentary case evaluation’, ‘no bill until you win’, ‘our service won’t cost you a penny’, ‘we will fund your case’, and ‘a solicitor cannot advertise to act on a no-win, no-fee basis – however, solicitors can act on this basis – this can be discussed by phone, email or in a meeting’.
Advertisements cannot contain cartoons, dramatic or emotive words or pictures, nor can they refer to calamitous events, such as train or bus crashes. Solicitors cannot advertise their willingness to make home or hospital visits.
Where an advertisement contains factual information on the legal services provided, no one category may be given prominence. The practice of listing different types of personal injury actions in a list of services provided has been deemed by the Law Society to be a prima facie breach of the regulations.
Section 5 of the Solicitors (Amendment) Act 2002 prohibits a person who is not a solicitor publishing advertisements, which, if published by a solicitor, would be in breach of the legislation. The act extends the definition of misconduct to include a solicitor having any direct or indirect association with a person who is acting in contravention of section 5. Consequently, accepting direct or indirect referrals of personal injury claims that emanate from a ‘claims harvesting’ website operated by a third party may constitute misconduct.
Appropriate action will be taken against solicitors committing a breach of the regulations. Such action may include proceedings under section 18 of the Solicitors (Amendment) Act 2002 by way of an application by the Law Society to the High Court for an order prohibiting a solicitor from contravening the regulations, and an application by the Law Society to the Solicitors Disciplinary Tribunal for an inquiry into the conduct of a solicitor on the grounds of alleged misconduct.
This notice relates to aspects of the regulations that are particularly relevant to personal injuries advertising and is not intended as a comprehensive guide to the regulations. This notice is intended as general guidance in relation to the subject matter and does not constitute a definitive statement of the law.
John Elliot
Registrar of Solicitors and Director of Regulation