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GAZETTE
MAY 1994
V I
E W P 0 I N T
Fee Adver t i s i ng -
T ime for a Re- think
As we go to press, the Committee
Stage of the Solicitors (Amendment)
Bill, 1994 has commenced and battle
lines have already been drawn on a
number of key provisions of the Bill.
Solicitors throughout the country will
be pleased that the Minister of
State at the Department of Justice,
Mr. Willie O'Dea
TD, announced at
Second Stage that he will be
removing those sections of the Bill
that would have permitted banks and
other financial institutions to
provide probate and conveyancing
services. The Government has
obviously had a change of heart on
this particular issue which is
welcomed.
We would hope that the Government
will, likewise, have a change of heart
in relation to one or two other
provisions of this Bill. Apart from the
provision which would impose an
obligation on the Law Society to fund
the Office of the Ombudsman (which
has been consistently objected to by
the Society and, we should point out,
by many other commentators recently
who see it as a provision that
undermines the independence of the
Ombudsman) a provision which has
aroused sustained and vociferous
opposition from solicitors is that
which would preclude the Society
from prohibiting the advertising of
fees by solicitors -
in other words
allow fee advertising.
Up to now,
despite intense opposition from the
profession, the Government has
held the line and Deputy O'Dea, at
Second Stage, attempted to defend fee
advertising as being in the public
interest. We would earnestly
suggest that he should think again on
this matter. It is, perhaps, ironic that
one of the most outspoken critics of
this provision at the Second Stage
was none other than Deputy
Desmond O'Malley
, who, in the
course of his contribution, said the
following:
"Some years ago I would have
greatly welcomed that, but from
my experience of some of the
advertising since 1988 it would be
very dangerous to allow fee
advertising. The Minister and the
Government should think about
this again before Committee
Stage."
The Deputy went on to point out that,
in his view, to allow fee advertising
would be wrong and contrary to the
public interest. This 'Damascus-like'
conversion, late and all as it is, is
greatly to be welcomed and the
Government should take special heed
of what Deputy O'Malley has said. He
was, after all, the Minister who,
before his departure from
Government, was responsible for
competition policy in this country and
it was he, more than anybody else,
who 'unleashed the dogs' of
competition on the legal profession.
Can anybody seriously doubt the point
that Deputy O'Malley has so
forcefully made? Does the Minister
really believe, at this stage, that the
public interest will be served by
allowing solicitors to quote publicly in
advertisements fees for the provision
of legal services? Surely it is clear
that the most likely outcome of this is
that the public will be at risk of being
misled by a minority of solicitors who
will advertise low-cost legal services
solely to attract clients and will short-
cut on quality. The market for legal
services is very different to that which
prevails in relation to ordinary
commercial goods where the buyer
can use his own judgement to
determine the quality of the article
being offered in advance of
committing himself to a purchase.
Most consumers of legal services are
not in a position to do this. They are
simply not in a position to assess in
advance the quality of the service
being offered by the solicitor. When it
comes, therefore, to comparing prices
as between solicitors, consumers lack
a fundamental and vital ingredient to
enable them to make an informed
choice. They simply cannot compare
the quality of service being offered by
different solicitors so as to make a
judgement as to which offer is best. It
is for that reason primarily that fee
advertising by solicitors is
objectionable.
Nobody can reasonably object to the
concept of price competition. There is
ample evidence that competition is a
healthy practice and is ultimately to
the benefit of consumers. However, as
we have said, the market for legal
services is a complex one and does
not readily lend itself to analysis on
the basis of ordinary competition
rules.
We await with interest the debate on
this issue at Committee Stage. A
number of opposition deputies have
put down amendments to delete this
provision from the Bill. The Minister
will clearly have to think very hard
about this matter. Simply reiterating
the philosophy of The Fair Trade
Commission, as set out in its 1990
report, will not satisfy anyone. The
Minister must address the points now
being made. He should ponder hard on
the reasons that brought about the
'O'Malley conversion'. We sincerely
hope that he will.
•
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