The Gazette 1994

GAZETTE

AUGUST/SEPTEMBER 1994

the public interest. There is also

provision in the legislation that the

Society may, by regulations, provide

that a solicitor who, in the prescribed

manner, has satisfied the Society of

specialist knowledge in a prescribed

area of law and practice may

designate himself or herself as having

specialist knowledge in that area of

law or practice.

Another recent development in

relation to advertising by lawyers is

the case of

Casado Coco

Spain,

decision of the European Court of

Human Rights in Strasbourg

(February 24, 1994). Citing the unique

role played by the legal profession,

the European Court of Human Rights J

(by a majority) rejected a Spanish

lawyer's claim that his free speech

rights were abridged by Spain's rules

against advertising

by lawyers. The

Court stated that local Bar authorities, |

the Spanish courts and domestic

courts were in a better position than

;

an international court to determine

how the right balance could be struck

between the requirements of the

proper administration of justice, the

dignity of the profession, the right of

everyone to receive information about

legal assistance and affording

members of the Bar the possibility of

advertising their practices.

In 1979, Mr. Casado Coco started a

legal practice in Barcelona. He

í regularly placed notices advertising

his practice in a number of local

newspapers and sent letters to various

businesses offering his services. The

Barcelona Bar Council took

disciplinary proceedings against him

ending in 1981 with him being given a

number of reprimands and warnings.

After publication in October 1982 in a

newsletter of one of his notices giving '

his name followed by the word

"lawyer" and his office address and

telephone number, the Bar Council

gave him a further warning which was !

confirmed on June 3, by the National

Bar Council.

Mr. Casado Coco applied to the

administrative courts alleging a breach

of Article 20 of Spain's Constitution

(freedom of expression). The local

court found against him on September

23, 1988 and the Supreme Court

dismissed his appeal. The

Constitutional Court held on April 17,

1989 that Article 20 of the Constitution

did not apply to advertising.

The European Court of Human Rights

in its judgment held,

inter alia,

that

Article 10 of the European

Convention on Humau Rights

guaranteeing freedom of expression

did,

contrary to Spain's submission,

apply to advertising. The court did not

have any reason to doubt that the Bar

rules complained of had been

designed to protect the interests of the

public while ensuring respect for

members of the Bar. The special

nature of the profession had to be

considered. In their capacity as

officers of the court, members of the

Bar had to be discreet, honest and

dignified. Restrictions on advertising

were justified by reference to those

special features.

The court considered that for the

citizen, advertising was a means of

discovering the characteristics of

services and goods offered to him.

Nevertheless it might sometimes be

restricted, especially to prevent unfair

competition and untruthful and

misleading advertising. In some

! contexts, the court considered that the !

publication of even objective truthful

advertisements might be restricted in

I order to secure respect for the rights

I of others or owing to the particular

i circumstances in particular business

activities and professions.

The court pointed out that a member

of the Bar in independent practice

could not be compared to commercial

| undertakings such as insurance

companies which were not subject to

restrictions on advertising their legal

I consulting services.

The European Court of Human

| Rights held that the special nature of

the legal profession had to be

| considered in the context of solicitors

advertising their services. In their

capacity as officers of the court,

lawyers had to be discreet, honest

and dignified. The restrictions on

advertising were justified by

reference to those special features.

The central position of the lawyer in the

administration of justice as an inter-

mediate between the public and the

courts explained the usual restrictions

on the conduct of members of the Bar.

The court also noted that the rules

governing advertising by members of

the Bar vary from one country to

another according to cultural tradition,

and that in most of the states which

were parties to the Convention,

including Spain, there had been for

some time a tendency to relax them.

The wide range of regulations and the

different rates of change in the Council

of Europe's member states indicated the

complexity of the issue.

The European Court of Human Rights

held that at the material time the

relevant authorities' reaction could not

be considered disproportionate to the

aim pursued and that consequently no

breach of Article 10 of the Convention

(freedom of expression) had been

established.

The Landlord and Tenant

(Amendment) Act, 1994

The Landlord and Tenant

(Amendment) Act, 1994

became law

on 10 August, 1994 one month after its

passing by both Houses of the

Oireachtas. Mr.

Alan Shatter,

TD,

Solicitor, introduced the legislation as a

Private Member's Bill and it is under-

stood to be the third Private Member's

Bill to become law in 35 years.

The 1994 Act now provides that the

right to a new tenancy arises after five ;

years continuous business occupation

of a premises. Accordingly, the

! typical two years and nine months

lease may very well become a lease of

four years and nine months.

;

Under the new legislation, the right to a

new tenancy for business tenants will

be for a period of up to 20 years. There I

is also an opt-out provision for lease-

hold business premises used "wholly

| and exclusively as an office" where the

j tenant prior to the commencement of

the tenancy executes" a valid

renunciation of his entitlement to a new

tenancy" having received "independent i

legal advice".

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