Law Society Gazette • Vol 105 No 9 Society Gazette • Vol Law aBa’s greatest hit early to rise Great train robbery The president of the With dawn raids on the What does the law American Bar Association increase, here’s what every actually say about using talks to the Gazette person should know the train without a ticket? Law Society Law GazetteGazette€3.75 November 2011 NoVeMBeR 2011 May the foRce Law Society of ireland Be with you the Dark Side of copyright law BUSINESS TO BUSINESS MAGAZINE OF THE YEAR cover november THIS.indd 1 27/10/2011 21:22 Fostering successful partnerships www.benasso.com Recognising talent’s one thing... finding a truly successful fit is another Benson & Associates have an unparalleled network of quality clients, over a decade of experience and above all, trusted instincts to find that perfect partnership. For the latest opportunities, please visit our website: www.benasso.com Talk to the Irish Legal Recruitment Specialists or contact Michael Benson BCL Solicitor in strict confidence at Benson & Associates, Legal Recruitment Specialists, Suite 113, The Capel Building, St Mary’s Abbey, Dublin 7, tel: +353 1 670 3997 Legal Recruitment Specialists For more information please visit our website or contact Michael Benson bcl. solr. in strict confidence at: Benson & Associates, Suite 113, The Capel Building, St. Mary’s Abbey, Dublin 7. T +353 (0) 1 670 3997 E [email protected] Law Society Gazette www.gazette.ie November 2011 preSident’S meSSaGe 1 CONCeRNS OveR LegaL SeRvIceS BILL he much publicised Legal Services Regulation Bill between the executive and 2011 was published on 12 October 2011. In his press the legal profession, offering Tstatement, Minister for Justice Alan Shatter mentioned the form of oversight by that the bill would provide three key entities: the judiciary, to guarantee a) A new independent Legal Services Regulatory Authority with the independence of the responsibility and oversight of both of the legal professions. regulatory machinery.” b) An Office of the Legal Costs Adjudicator, to assume the In addition, the President role of the existing Office of the Taxing Master, which will of the American Bar be conferred with enhanced transparency in its functions. Association, Bill Robinson “The Council is The legal cost regime will be brought out into the open III, was in Dublin on 11 with better public awareness and entitlement to legal cost October last, and he stated concerned that any information. that any perceived reduction increase in the cost c) An independent complaints structure to deal with complaints of the independence of about professional misconduct – this will be supported by an the legal profession could of regulation would independent Legal Professions Disciplinary Tribunal. have a negative impact on have to be passed on investment by multinational Under the bill, the new Regulatory Authority will: corporations. The Council to clients, which is a) Keep under review admission, education, and training, agrees with this statement. contrary to the whole b) Promote and assimilate information, The Council is also c) Deal with complaints of misconduct, concerned about the tenor of the bill” d) Conduct inspections of solicitors’ practices, increased costs of regulation e) Manage professional indemnity insurance, that could arise under the new Regulatory Authority. There f) Receive accountants’ certificates, was also a concern that any increase in the cost of regulation g) Make regulations on solicitors’ accounts, interest on clients’ would have to be passed on to clients, which is contrary to the money, PII and advertising. whole tenor of the bill. The Council of the Society also fully supports a move to a The minister can request the authority to prepare or approve a much more modern, transparent and predictable system for code of practice or professional code, and the authority shall do the assessment of costs in civil litigation. It welcomes many of so. The minister’s consent is also required for the authority to the recommendations relating to costs contained in the bill. amend, revoke or withdraw approval for a code of practice or Minister Shatter wrote to me on 12 October last, stating professional code. the following: “I would value the opportunity to meet with representatives of the Law Society to discuss any issues arising ‘Justified misgivings’ from the bill as the Society would like to raise. Similarly, I The Council of the Law Society debated the new provisions would be delighted to receive any written submissions on contained in the draft bill at a special Council meeting on the bill as the Society might wish to make. There are also a 14 October. In summary, the Council agrees with the editorial number of issues that I wish to raise as well, and look forward contained in The Irish Times of Saturday 15 October, which to a constructive dialogue with the Society with regard to the stated as follows: “There are justified misgivings about the bill.” model chosen by the minister, which gives the government We look forward to meeting the minister, shortly. The the power to appoint the new Regulatory Authority, which Council has also decided to appoint a Legal Services Regulation will then report to the Minister for Justice. This authority Bill Task Force, and this task force will be meeting urgently will have wide powers, including the drawing up and approval to assess the implications of the bill in detail. I would also like of codes of professional conduct. This is not the model to receive, and would welcome any comments that colleagues recommended by the Competition Authority, nor the one might have, in relation to the bill. Finally, we will also be followed in other jurisdictions, where normally a buffer exists discussing the bill at the AGM on 10 November next. John Costello President 2 contentS Law Society Gazette www.gazette.ie November 2011 Law Society Gazette Volume 105, number 9 Subscriptions: €57 Editor: Mark McDermott FIIC Deputy editor: Dr Garrett O’Boyle Designer: Nuala Redmond Society Law Editorial secretaries: Catherine Kearney, GazetteGazette Valerie Farrell Commercial advertising: Seán Ó hOisín, tel: 086 811 7116, ReGulaRS email: [email protected] 51 Practice notes 1 President’s message For professional notice rates (wills, title deeds, 53 Legislation update: 10 September – employment, miscellaneous), see page 60. 10 October 4 News 54 Justis update Published at Blackhall Place, Dublin 7, tel: 01 672 4828, fax: 01 672 4877. 12 Analysis 56 Eurlegal: The Google AdWords case; Email: [email protected] 12 News feature: The Legal Services recent developments in european law Website: www.gazette.ie Regulation Bill 60 Professional notices Printing: Turner’s Printing Company Ltd, 14 News feature: The American Bar Longford Association’s Fall Meeting in Dublin 16 Human rights watch: How does 61 Recruitment advertising Editorial board: Michael Kealey (chairman), Ireland’s criminal law deal with online Mark McDermott (secretary), Mairéad Cashman, hate speech? 64 Captain’s blawg Paul Egan, Richard Hammond, Mary Keane, Aisling Kelly, Tracy Lyne, Patrick J McGonagle, Ken Murphy, Andrew Sheridan 20 Comment 02 Viewpoint: A look at the Government’s The Law Society of Ireland can accept review of the Mental Health act 2001 no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and any views or opinions 44 People and places expressed are not necessarily those of the Law Society’s Council, save where otherwise 47 Obituary indicated. 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To contact the Office of the Press Ombudsman go to: www.pressom- budsman.ie or www.presscouncil.ie. 44 45 Law Society Gazette www.gazette.ie November 2011 contentS 3 14 33 coveR StoRy 22 The empire strikes back A long time ago, in a galaxy far, far away – or england in July – the British Supreme Court gave welcome clarification to the definition of ‘sculpture’ under english copyright Law Society Gazette • Vol 105 No 9 No 105 Vol • Gazette Society Law aBa’s greatest hit law. Point five past light speed Glen Gibbons makes The president of the American Bar Association talks to the Gazette early to rise With dawn raids on the increase, here’s what every person should know Great train robbery What does the law actually say about using the train without a ticket? LawGazetteGazette Society featuReS €3.75 November 2011 NoVeMBeR 2011 2011 NoVeMBeR 26 Knowing me, knowing you ABA President William Robinson was in Dublin in October at the organisation’s May the foRce 30 Fall Meeting.