Army compensation claims have brought into focus the whole area of solicitors' advertising, particularly for personal injury cases, but indications that it is to be curbed have caused a debate that has sharply divided the legal profession.
The Minister for Justice, Mr O'Donoghue, is still considering what form a ban on advertising relating to personal injuries should take and how far it should go. A spokesman for the Department of Justice said legislation was in preparation and was expected to be introduced during this session of the Dail.
However, solicitors are in disagreement on the subject. The Law Society, which represents them, says it would support any ban on advertising for personal injury. Members say this type of advertising is distasteful and brings the profession into disrepute.
This, however, is not the view of some personal injury lawyers, who are so angered by any suggestion of an overall ban on personal injuries advertising that they are considering taking legal action if it is enforced. They claim that such a prohibition would be unconstitutional and anti-competitive.
One thing solicitors do agree on, however, is that about 10 years ago it was the government which pressurised a reluctant legal profession to remove its ban on advertising because it was anticompetitive.
On December 17th the Minister for Defence, Mr Smith, informed the Dail that the Government had decided to examine the curbing of solicitors' advertising as a matter of urgency. He claimed that some advertisements were inducing Army personnel to take compensation cases against the State.
Just before Christmas the Law Society was informed that the Government intended to introduce some type of ban as a matter of urgency.
On Thursday, January 22nd, in a statement, Mr Laurence Shields, president of the society, said its council had indicated its support for any Government measure designed to ban advertising which solicited, promoted or encouraged any person making a claim for damages for personal injury. The ban should apply to everyone and not just solicitors.
The society had said previously that it objected to the so-called ambulance-chasing type of advertising.
Mr John Schutte, a solicitor, coordinator of the Association of Personal Injury Lawyers in the State, told The Irish Times that he considered Mr Shields and the Law Society Council had made a mistake in saying they would support any ban on personal injury advertising. "This year it's personal injury, next year it could be divorce," he said.
Mr Schutte claimed such a move would make it difficult for people who want to take an action against the State to get personal injury lawyers.
He said a lot of blame had been put on solicitors who advertised for creating the whole scenario of Army compensation claims. But the number of solicitors advertising for Army compensation cases was very small indeed.
People saw articles in newspapers and magazines, and radio and television programmes. The Minister was blaming lawyers for causing the controversy, but there had been a huge amount of publicity, which might be good or bad, but very little was brought about by advertising.
"The Minister [for Defence] wants to ban advertising for all personal injury work, and that's where he is going over the top," Mr Schutte said.
Some solicitors may have gone into hospitals and given business cards out but that was touting, which was illegal, Mr Schutte said. It was unprofessional conduct and, if a Minister knew who they were, he should name them and make a complaint to the Law Society.
"What we have here is camouflage, a smoke-screen. The Minister is trying to throw the blame on somebody else because he knows these cases are going to cost the State money," he claimed.
"Advertising was foisted on the profession by the then government, which said it was anti-competitive, and now 10 years later it claims we can't advertise in a certain area. If it was anti-competitive not to advertise then, it is even more so now."
Mr Schutte said he was at present investigating whether personal injury lawyers opposed to such a ban would take a group legal action if it was enforced or whether they would take individual cases. They considered any ban would be unconstitutional, anti-competitive and wrong on a European level, as lawyers in the North and Britain would be able to advertise on personal injury.
An opposing view is taken by the Law Society. The director-general, Mr Ken Murphy, said the majority of solicitors would probably prefer if personal injury advertising was prohibited.
The whole concept of solicitors advertising at all came about because of government pressure in the late 1980s. The Law Society was approached and told that unless it dropped its prohibition on advertising legislation would be introduced to compel it.
This basically arose out of the climate for fair trading and competition which led to the 1990 Fair Trade Commission report and new laws such as the Competition Act, 1991. It was in the face of these changes that the government pursued the issue of solicitors advertising.
The Law Society then voluntarily, but under protest, brought in regulations to allow advertising of services. This was copper-fastened by the Solicitors Amendment Act, 1994, which really just set the position in legislation. "Now it's an about-turn on the Government's part," said Mr Murphy.
The personal injuries advertisements had damaged the public's esteem and the respect in which the profession was held, he said. The majority would find the personal injuries-targeted type of advertising distasteful.
Under the rules the solicitors were advertising legally, and even those advertisements targeted at Army personnel were legitimate.
Advertisements for personal injury were the only area in which the Law Society had received complaints. Therefore, he said, it was the only area which needed to be redressed.
However, the society would not support a blanket ban on all advertising. "Any move to prohibit all advertising would not be in the public interest and would not be in the interest of the profession. We are in competition with other service providers," he said.
They must be able to publish brochures and business cards, or write articles, as it was a competitive business.
Mr Shields had said after the council meeting that the society would also support Government action to ban advertising in "sensitive locations" such as hospitals, clinics, doctors' surgeries or other places frequented by people who might have suffered a personal injury.
The leading legal firms dealing with the Army compensation claims are P.V. Boland, Newbridge, Co Kildare, which has 1,300 cases, mostly in train; Leahy & O'Sullivan, Limerick, with a total of 1,400 claims now lodged; Byrne Carolan Cunningham, Co Westmeath, 500 cases; O'Donovan, Winetavern Street, Dublin, 400; Ferrys, Ormond Quay, Dublin, 400 cases.
Other firms are handling varying number of claims, ranging from hundreds to one or two. In total, 11,600 claims have been lodged.