This notice is intended as general guidance in relation to the subject matter and does not constitute a definitive statement of law. Reference to a solicitor includes a reference to a firm of solicitors in this context.
Specific restrictions are in place with regard to advertising by solicitors, in particular in relation to personal injury and contentious matters, as provided for in section 4 of the Solicitors (Amendment) Act 2002 and the Solicitors (Advertising) Regulations 2002 (SI no 518 of 2002).
It is the responsibility of the solicitor to ensure that any advertisement published or caused to be published by the solicitor complies with the act and the regulations.
The solicitor must keep a copy of any advertisement published or caused to be published by him or her, together with written instructions given for the publication of that advertisement, for a period of at least 12 months from the date of publication, and furnish the Society on request with a copy of that advertisement and relevant instructions.
The following questions and answers are designed to assist practitioners in complying with their obligations per the legislation.
What constitutes an advertisement?
An advertisement is any communication that is intended to publicise or otherwise promote a solicitor in relation to the solicitor’s practice, whether that communication is in oral, written, or in any other visual form and whether produced by electronic or other means.
For the avoidance of doubt, websites are considered to be advertisements for the purposes of the legislation.
An advertisement is said to be published when there is a communication or intended communication of words to another person, which are intended to publicise or otherwise promote a solicitor in relation to the solicitor’s practice.
What are the general restrictions on solicitors’ advertisements?
A solicitor’s advertisement may not:
- Be in a form that brings the solicitors’ profession into disrepute,
- Be in bad taste,
- Reflect unfavourably on other solicitors, or
- Be false or misleading in any respect.
An advertisement cannot contain an express or implied assertion that the solicitor has specialist knowledge in an area of law or practice superior to other solicitors. Further information and exceptions can be found on this subject in the practice note ‘Advertising specialisms: notice to all solicitors’ (April 2007 Gazette, p51).
An advertisement cannot be published in or on any form of transport, in a newspaper on the same page on which death notices appear, on the radio immediately preceding or following death announcements, or in any other inappropriate location, including hospitals, clinics, doctors’ surgeries, funeral homes, cemeteries, crematoriums or other locations of a similar character.
An advertisement may not include any cartoons, dramatic or emotive words or pictures, make reference to calamitous events or situations such as train or bus crashes, or refer to the willingness of the solicitor to make hospital or home visits.
An advertisement published or caused to be published by a solicitor shall be of the size appropriate to the medium in which, or the location in which, it is published. Where an advertisement includes factual information on the services provided by the solicitor or the areas of law to which those services relate, the words relating to any practice area or service should not be given prominence by reference to appearance, size, context or location over another in the same advertisement.
An advertisement may not be contrary to public policy.
Are there restrictions specific to personal injuries and contentious business?
There are specific additional limitations and restrictions in place on advertising relating to personal injuries and contentious business.
An advertisement cannot refer expressly or impliedly to claims or possible claims for damages for personal injuries, the possible outcome of claims for damages for personal injuries or the provision of legal services by the solicitor in connection with such claims. Furthermore, an advertisement cannot expressly or impliedly solicit or induce a person or class of persons to make such claims. However, any advertisement that contains factual information on the legal services provided by the solicitor and on any areas of law to which those services relate may include the words ‘personal injuries’.
The same limitations on the use by a solicitor of the words ‘personal injuries’ also extend to the use of any other words that may be more specifically descriptive of categories of cases where claims for damages for personal injuries may arise including ‘motor accidents’, ‘workplace accidents’, ‘public place accidents’ or other words or phrases of a similar nature.
In relation to any contentious business (including personal injuries), it is prohibited to include in the advertisement words or phrases that suggest that the legal services relating to the contentious business will be provided at no cost or at a reduced cost, including ‘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 words or phrases of a similar nature.
Where an advertisement refers to personal injuries or other contentious business in circumstances that are not in contravention of the legislation, such advertisements must clearly refer to the prohibition on percentage charging in connection with contentious business. In the context of ‘personal injuries’, this is effected by placing an asterisk after the words ‘personal injuries’ and the following words should be shown adjacent thereto, except in connection with proceedings seeking only to recover a debt or liquidated demand:
“* In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.”
An advertisement may not list different types of personal injury actions in a list of services provided.
What prohibitions exist in respect of certain advertisements by unqualified persons?
Section 5 of the Solicitors (Amendment) Act 2002 prohibits a person who is not a solicitor from publishing an advertisement that undertakes to provide a service of a legal nature that could otherwise be provided by a solicitor, for or in expectation of a fee, gain or reward that is directly related to the provision of that service, and if that advertisement were published by a solicitor, it would be in breach of the legislation.
A solicitor who is found to have a direct or indirect connection with a person who is acting in contravention of section 5 as outlined above may be found guilty of misconduct.
What is the consequence of a breach of the legislation by a solicitor?
A solicitor who breaches the legislation may be found guilty of professional misconduct.
The Society will take appropriate action against a solicitor who commits a breach of the legislation. Such actions may include taking proceedings under section 18 of the Solicitors (Amendment) Act 2002 by way of application by the Society to the High Court for an order prohibiting a solicitor from contravening the regulations. Furthermore, breaches may be referred to the Solicitors Disciplinary Tribunal for an inquiry into the conduct of a solicitor on the grounds of alleged misconduct. A solicitor who is found guilty of misconduct is exposed to the normal range of sanctions, to include censure, fines and strike off.
How can the Law Society assist?
The Law Society can assist in the following ways:
- Guidance – any solicitor seeking guidance about any advertisement or proposed marketing scheme is advised to contact the Society,
- Prior approval – any solicitor seeking prior approval of any advertisement or proposed marketing scheme is advised to contact the Society,
- Complaints – any person who has concerns regarding a particular advertisement and wishes to make a complaint in this regard can contact the Society,
- Further information – further information on what information may be included in advertisements, where advertisements may be published, size and context of advertisements, and what communications are not considered to be an advertisement can be found on the Society’s website.
Jack Kennedy is the Society’s advertising regulations executive and is contactable at 01 672 4800 or email@example.com.
John Elliot, Registrar of Solicitors and Director of Regulation