The Gazette 1994

GAZETTE

AUGUST/SEPTEMBER 1994

the public interest. There is also provision in the legislation that the Society may, by regulations, provide j 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 v Spain, a 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 j rights were abridged by Spain's rules against advertising by lawyers. The j Court stated that local Bar authorities, | the Spanish courts and domestic j 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. ! j 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. j 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 j 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 ! I I

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 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 I 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 j 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 j 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. j special features. j

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 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 J ! typical two years and nine months 1 lease may very well become a lease of four years and nine months. ; ! i Under the new legislation, the right to a new tenancy for business tenants will i 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". • The Landlord and Tenant (Amendment) Act, 1994

256