FTC Staff Comment Before the State Bar of Georgia Concerning Proposed Rules on Attorney Fees, Business Organization, Advertising, and Solicitation

·" . UNJTED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON. D.C. ~ao
March 	31, 	1987
G. 	Robert 	Oliver, 	Chairperson
Code 	of 	Professional 	Responsibility 	Committee
State 	Bar 	of 	Georgia
800 	The 	Burt 	Building
50 	Burt 	Plaza
Atlanta, 	Georgia 	30303
Dear 	Mr. 	Oliver:
The 	Federal 	Trade 	Commission 	staff 	is 	pleased 	to 	submit
these 	comments 	on 	the 	Proposed 	Rules 	and 	Disciplinary 	Standards
of 	Professional 	Conduct 	of 	the 	Code 	of 	Professional
Responsibility 	COffimittee 	of 	the 	State 	Bar 	of 	Georgia. l In 	this
letter, 	we 	focus 	only 	on 	the 	proposed 	Rules 	and 	Standards
concerning 	fees, 	forms 	of 	business 	organization, 	advertising, 	and
solicitation.
The 	proposals 	before 	the 	Committee 	would 	in 	some 	respects
permit 	more 	attorney 	communication 	with 	prospective 	clients 	than
do 	the 	existing 	Rules 	and 	Standards, 	and 	should 	therefore 	assist
consumers 	in 	making 	informed 	choices 	about 	legal 	services. 	Some
of 	the .proposed 	rules, 	however, 	may 	harm consumers by 	restraining
price 	competition, 	restricting 	the 	development 	of 	innovative 	and
potentially 	more 	efficient 	forms 	of 	legal 	practice, 	and 	limiting
unnecessarily 	the 	information 	available 	to 	consumers.
,As 	is 	discussed 	in 	more 	detail 	below, 	we 	urge 	the 	Committee
to 	(1) 	make 	clear 	in 	the 	commentary 	to 	proposed 	Rule 	I.S(a) 	that
only 	extremely 	high 	fees 	would 	be 	unreasonable; 	(2) 	eliminate 	the
restrictions 	in 	proposed 	Rule 	and 	Standard 	5.4 	on 	practice 	with
nonla~yers; 	(3) 	modify 	proposed 	Rule 	and 	Standard 	7.1 	to 	make
clear 	that 	endorsements 	and 	experience, 	success, 	comparison, 	and
quality 	claims 	are 	all 	permitted; 	(4) 	modify 	proposed 	Rule 	and
Standard 	7.3 	to 	eliminate 	the 	broad 	ban 	on 	telephone
solicitation, 	to 	permit 	in-person 	contact 	for 	the 	purposes 	of
obtaining 	professional 	employment 	with 	all 	but 	those 	who, 	because
of 	their 	particular 	circumstances, 	are 	vulnerable 	to 	undue
influence, 	or 	who 	have 	informed 	the 	lawyer 	that 	they do 	not 	wish
to 	be 	solicited, 	and 	to 	delete 	the 	restrictions 	in 	Rule 	and
1 	This 	letter 	represents 	the 	views 	of 	the 	FTC's 	Bureaus 	of
Competition, 	Consumer 	Protection, 	and 	Economics, 	and 	not
necessarily 	those 	of 	the 	Commission. 	The 	Commission 	has,
however, 	voted 	to 	authorize 	the 	staff 	to 	submit 	these
comments 	to 	you.

", .
1
"' 	G. 	Robert 	Oliver, 	Chairperson 	-2-
Standard 	7.3(b) (3) 	and 	(4) 	governing 	written 	cOmrLunications; 	(S)
alter 	proposed 	Rule 	and 	Standard 	7.4 	to 	remove 	the 	restriction 	on
express 	or 	implied 	claims 	of 	specialty 	or 	certification; 	and 	(6)
delete 	proposed 	Rule 	and 	Standard 	7.5(e), 	which 	prohibit 	a 	law
firm 	from 	practicing 	under 	more 	than 	one 	name, 	and 	proposed 	Rule
and 	Standard 	7.5(f) (1), 	which 	require 	inclusion 	of 	the 	name 	of 	a
lawyer 	in 	a 	trade 	name. 2
Proposed 	Rule 	I.Sea): 	Fees
Proposed 	Rule 	1.S(a) 	states 	that 	ft[a] 	lawyer's 	fee 	shall 	be
reasonable,ft 	and 	subparagraph 	(3) 	provides 	that 	-the 	fee
customarily 	charged 	in 	the 	locality 	for 	similar 	services ft is 	to
be 	considered 	in 	determining 	reasonableness. 	La-yers 	might
interpret 	this 	language 	to 	bar 	ftunreasonablyft 	low 	fees. 	Such 	an
interpretation 	could 	tend 	to 	discourage 	price 	co~petition among
traditional 	practitioners; 	it 	could 	also 	restrain 	competition
from 	legal 	clinics 	and 	other 	non-traditional 	providers 	of 	legal
se rvices,
The 	proposed 	rule 	is 	also 	undesirable 	insofar 	as 	it 	may
appear 	to 	set 	a 	ceiling 	on 	fees. 	We 	are 	opposed 	to 	price
regulation, 	whether 	it 	imposes 	a 	minimum 	or 	maximum 	price. 	For
that 	reason, 	we 	believe 	that 	proposed 	Rule 	1.S(a) 	should 	be
applied 	only 	in 	extreme 	cases 	where 	an 	attorney's 	fee 	is 	so 	high
that 	it 	represents 	a 	clear 	abuse 	o~ 	the 	client 	or 	suggests 	a
possible 	breach 	of 	fiduciary 	duty. 	We 	therefore 	suggest 	that
the 	accompanying 	commentary 	make 	clear 	that 	low 	fees 	are 	not
deemed 	unreasonable 	and 	that 	only 	fees 	that 	are 	extremely 	high
under 	the 	particular 	circumstances 	of 	the 	case 	may 	be 	found
unreasonable 	within 	the 	meaning 	of 	the 	rule.
Proposed 	Rule 	and 	Standard 	5.4: 	Professional
Independence of 	a 	Lawyer
I Proposed 	Rule 	and 	Standard 	S.4 	would 	prohibit 	a 	lawyer 	from
forming 	a 	partnership 	or 	sharing 	legal 	fees, 	except 	under 	limit~d
circumstances, 	with 	a 	nonlawyer, 	or 	from 	practicing 	in 	a
professional 	corporation 	or 	other 	organization 	authorized 	to
2
3
Although 	we 	understand 	that 	the 	Standards 	provide 	the 	basis
for 	disciplinary 	proceedings, 	the 	section 	on 	Scope 	states
that 	some 	of 	the 	Rules 	are 	wimperatives W 	and 	wdefine 	proper
conduct 	for 	purposes 	of 	professiona) 	discipline.- 	Even 	the
permissive 	rules 	may 	strongly 	influence 	attorneys' 	behavior
because 	of 	their 	desire 	to 	abide 	by 	professional 	norms.
Therefore, 	we 	will 	be 	commenting 	on 	the 	Rules 	as 	well 	as 	the
Standards.
Many 	instances 	of 	above 	wnormalft 	fees 	may 	imply 	no 	client
abuse. 	For 	example, 	a 	client 	may 	wish 	to 	obtain 	the 	services'
of 	a 	particularly 	busy 	attorney 	on 	a 	rush 	basis.

G. 	Robert 	Oliver, 	Chairperson 	-3-
practice 	law 	for 	a 	profit 	if 	a 	nonlawyer 	owns 	an 	interest 	in 	the
organization 	or 	is 	an 	officer 	or 	director. 	The 	proposed 	rule
limits 	the 	ability 	of 	lawyers 	to 	establish 	multidisciplinary
practices 	with 	other 	professionals, 	such 	as 	psychologists,
nurses, 	or 	accountants, 	to 	deal 	efficiently 	with 	both 	the 	legal
and 	nonlegal 	aspects 	of 	specific 	problems.
In 	American 	Medical 	Association, 	94 	F.T.C. 	701, 	1017-18
(1979), 	aff'd, 	638 	F.2d 	443 	(2d 	Cir. 	1980), 	aff'd 	memo 	by 	an
eoually 	divided 	court, 	455 	u.s. 	676 	(1982), 	the 	Federal 	Trade
Commission 	found 	that 	the 	AMA's 	ethical 	restrictions 	on 	the
formation 	of 	professional 	associations 	with 	nonphysicians 	had 	an
adverse 	effect 	on 	competition. 	The AMA's 	form 	of 	practice
restrictions 	precluded 	a 	wide 	variety 	of 	professional 	ventures
and 	potentially 	efficient 	business 	formats, 	such 	as 	health
maintenance 	organizations 	and 	prepaid 	health 	care 	plans. 	The
Commission 	concluded 	that 	the 	prohibitions 	were 	much 	broacer 	than
needed 	to 	prevent 	non-physician 	influence 	over 	medical 	procedures
or 	consumer 	deception 	about 	the 	skills 	of 	a 	non-physician 	partner
or 	associate. 	Proposed 	Rule 	and 	Standard 	5.4 	similarly 	limit
potentially 	procompetitive 	professional 	ventures 	and 	innovative
business 	formats. 	Paragraphs 	(c) 	and 	(d) (3) 	alone 	should
adequately 	preserve 	the 	lawyer's 	independent professional
judgment. 	Therefore, 	we 	recommend 	that 	the 	Committee 	delete 	all
of 	proposed 	Rule 	and 	Standard 	5.4, 	except 	5.4(c) 	and 	5.4(d) (3).
PrOposed 	Rule 	and 	Standard 	7.1: 	Advertising
The 	beneficial 	effects 	of 	advertising 	are 	widely
recognized. 	Truthful, 	nondeceptive 	advertising 	communicates
information 	about 	individuals 	or 	firms 	offering 	the 	services 	that
consumers 	may 	wish 	to 	purchase. 	Such 	information 	helps 	consumers
make 	purchase 	decisions 	that 	reflect 	their 	true 	preferences 	and
promotes 	the 	efficient 	delivery 	of 	services. 	Before 	advertising
by 	attorneys 	was 	permitted, 	many 	Americans 	failed 	to 	obtain 	the
services 	~f an 	attorney, 	even 	when 	they 	had 	serious 	legal
problems. 	A recent 	empirical 	study 	suggests 	that 	the 	removal 	of
restrictions 	on 	the 	dissemination 	of 	truthful 	information 	about
lawyers 	and 	legal 	services 	will 	tend 	to 	enhance 	competition 	and
4 	For 	example, 	a 	nation-wide 	survey 	in 	1974 	by 	the 	American 	Bar
Foundation 	and 	the 	American 	Bar 	Association 	found 	that 	only 	9
percent 	of 	the 	people 	who 	had 	a 	property 	damage 	problem, 	10
percent 	of 	those 	with 	landlord 	problems, 	and 	1 	percent 	of
those 	who 	felt 	that 	they 	were 	the 	victims 	of 	employment
discrimination 	sought 	the 	services 	of 	an 	attorney 	after 	the
most 	recent 	occurrence. 	B. 	Curran, 	The 	Legal 	Needs 	of 	the
Public: 	The 	Final 	Report 	of 	a 	National 	Survey 	135 	(1977).

G. 	Robert 	Oliver, 	Chairperson 	-4-
to 	lower 	prices. 5 Although 	some 	have 	voiced 	concern 	that
advertising 	may 	lead 	to 	lower 	quality 	legal 	services, 	the
empirical 	evidence 	suggests 	that 	the 	quality 	of 	legal 	services
provided 	by 	firms 	that 	advertise 	is 	at 	least 	as 	high 	as, 	it 	not
higher 	than, 	that 	provided 	by 	firms 	that 	do 	not 	acvertise.
We 	fully 	endorse 	the 	Committee's 	view 	that 	false 	and
deceptive 	advertising 	should 	be 	prohibited. 	Nonetheless, 	we 	are
concerned 	that 	the 	definitions 	of 	·false ft 	and 	·misleading ft
cOI.tained 	in 	Rule 	and 	Standard 	7.1 (a) (2) 	might 	prohibit 	much
truthful, 	nondeceptiveadvertising, 	as 	set 	forth 	below.
·Unjustified 	Expectations·: 	Proposed 	Rule
and 	Standard 	7.l(a) (2)
Proposed 	Rule 	and 	Standard 	7.I(a) (2)
prohibit 	client 	endorsements 	and 	truthful
attorney's 	record 	of 	favorable 	verdicts.
respect 	to 	proposed 	Rule 	7.1 	states:
could 	be 	read 	to
communications 	about 	an
The 	coIl:ltent 	with
ftThe 	prohibition 	in 	paragraph 	(b) 	of
statements 	that 	may 	create 	'unjustified
expectations' 	would 	ordinarily 	preclude
adve~tisements about 	results 	obtained 	on
behalf 	of 	a 	client, 	such 	as 	the 	amount 	of
a 	carnage 	award 	or 	the 	lawyer's 	record 	in
obtaining 	favorable 	verdicts, 	and
advertisements 	containing 	client
endorsements. "
The 	comment 	goes 	on 	to 	suggest 	that 	such 	information 	"may 	create
the 	unjustified 	expectation 	that 	similar 	results 	can 	be 	obtained
for 'others 	without 	reference 	to 	the 	specific 	fact~al and 	legal
circumstances." 	The 	comment's 	construction 	of 	the 	prohibition 	of
adve~tising "likely 	to 	create 	an 	unjustified 	expectation" 	is 	thus
so 	b~oad that 	it 	could 	chill 	the 	use 	of 	much 	truthful 	advertising
th&t 	is 	beneficial 	to 	consumers. 	For 	example, 	consumers 	may 	wish
to 	use 	an 	attorney's 	past 	results 	as 	one 	of 	several 	factors 	to
consider 	in 	choosing 	a 	representative. 	"[I]t 	see~s peculiar 	to
deny 	the 	consumer, 	on 	the 	ground 	that 	the 	information 	is
incomplete, 	at 	least 	some 	of 	the 	relevant 	information 	needed 	to
reach 	an 	informed 	decision." 	Bates 	v. 	State 	Bar, 	433 	u.s. 	350,
374 	(1977).
5 Cleveland 	Regional 	Office 	and 	Bureau 	of 	Econo~ics, Federal
Trade 	Commission, 	Improving 	Consumer 	Access 	to 	Legal
Services: 	The 	Case 	for 	Removing 	Restrictions 	on 	Truthful
Advertising 	(1984).
6 of

G. 	Robert 	Oliver, 	Chairperson 	-5-
The 	comment 	also 	interprets 	proposed 	Rule 	7.l{a) 	to 	prohibit
the 	use 	of 	endorsements. 	Such 	advertising 	traditionally 	has 	been
recognized 	as 	effective 	by 	sellers 	of 	goods 	and 	services. 	For
example, 	the 	choice 	of 	the 	clients 	listed 	in 	the 	Martindale-
Hubbell 	directory 	generally 	reflects 	an 	intuition 	that 	the
representation 	of 	a 	major 	bank 	or 	corporation 	suggests 	that 	a
firm 	can 	handle 	complicated 	legal 	problems 	in 	cases 	in 	which
large 	sums 	of 	money 	may 	be 	at 	risk. 	Advertising 	using 	clients
who 	attest 	truthfully 	that 	they 	use 	a 	firm's 	legal 	services
simply 	gives 	the 	general 	public 	the 	same 	information 	that 	is
available 	to 	users 	of 	legal 	directories. 	Similarly, 	an
advertisement 	in 	which 	a 	famous 	athlete 	or 	actor 	states
truthfully 	that 	he 	or 	she 	uses 	a 	particular 	firm 	or 	attorney,
tells 	consumers 	that 	someone 	who 	can 	spend 	a 	substantial 	sum 	to
find 	a 	good 	attorney, 	and 	who may 	have 	significant 	assets 	at
stake, 	believes 	a 	particular 	lawyer 	to 	be 	effective.
We 	believe 	it 	is 	unlikely 	that 	advertisements 	containing
client 	endorsements 	or 	information 	about 	past 	successes 	will
create 	unjustified 	expectations, 	and 	the 	potential 	benefits 	to
consumers 	of 	such 	information 	outwei~h any 	potential 	harms. 	We
therefore 	urge 	the 	Court 	to 	delete 	the 	commentary 	with 	respect 	to
proposed 	Rule 	7.1 (a) (2) •
.Substantiation: 	Proposed 	Rule 	and 	Standard 	7.l(a) (3),(.)
Proposed 	Rule 	and 	Standard 	7.1(a) (3) 	and 	(4) 	would 	prohibit
communications 	that 	compare 	a 	lawyer's 	services 	with 	those 	of
other 	lawyers, 	or 	that 	make 	claims 	concerning 	the 	quality 	of 	a
lawyer's 	services, 	unless 	the 	comparison 	or 	claims 	can 	be
"factually 	substantiated." 	Information 	that 	accurately 	compares
the 	particular 	qualities 	of 	competing 	law 	firms 	or 	that
truthfully 	makes 	claims 	about 	a 	firm's 	services 	may 	encourage
improvement 	and 	innovation 	in 	the 	delivery 	of 	services 	and 	assist
consumers 	in 	making 	rational 	purchase 	decisions. 	Indeed, 	in 	one
sense, 	such 	comparisons 	and 	quality 	claims 	are 	the 	essence 	of
competition. 	Of 	course, 	comparisons 	or 	claims 	containing 	false
or 	deceptive 	statements 	of 	fact, 	either 	about 	the 	advertiser 	or 	a
competitor, 	provide 	no 	benefit 	to 	consumers 	and 	can 	be 	harmful.
However, 	such 	statements 	would 	be 	prohibited 	by 	proposed 	Rule 	and
Standard 	7.1 (a) (1) •
Proposed 	Rule 	and 	Standard 	7.1(a) (3) 	and 	(4) 	may 	preclude
truthful, 	nonceceptive 	comparative 	statements 	or 	quality 	claims,
such 	as 	"friendlier 	service," 	or 	"your 	legal 	rights 	explained 	in
terms 	you 	can 	understand." 	Such 	statements 	are 	not 	readily
subject 	to 	verification, 	but 	they 	provide 	information 	about 	the
advertiser's 	legal 	services 	that 	may 	be 	useful 	to 	many 	potential

G. 	Robert 	Oliver, 	Chairperson 	-6-
clients. 7 	We 	urge 	the 	Committee 	to 	modify 	proposed 	Rule 	and
Standard 	7.1 (a) (3) 	and 	(4) 	to 	require 	only 	that 	an 	attorney 	have
a 	:easonable 	basis 	for 	any 	material, 	objective 	claims.
Proposed 	Rule 	and 	Standard 	7.3: 	Direct 	Contact
with 	Prospective 	Clients
Proposed 	Rule 	and 	Standard 	7.3(b) 	would 	facilitate
consumers' 	selection 	of 	a 	lawyer 	by 	permitting 	targeted 	direct
mailings. 	It 	is 	our 	view, 	however, 	that 	proposed 	Rule 	and
Standard 	7.3(a) 	are 	too 	restrictive 	in 	prohibiting, 	except 	under
very 	limited 	circumstances, 	telephone 	and 	in-person 	contact 	for
the 	purpose 	of 	obtaining 	professional 	employment, 	and 	in 	imposing
several 	regulations 	on 	written 	communications. 	These 	provisions
would 	restrict 	the 	flow 	of 	information 	more 	than 	is 	necessary 	to
protect 	consumers, 	because 	they 	would 	preclude 	truthful,
nondeceptive 	communications 	in 	circumstances 	that 	pose 	little 	or
no 	risk 	of 	undue 	influence.
: In-Person 	Solicitation
In-person 	solicitation 	may 	provide 	consumers 	with 	truthful,
nondeceptive 	information 	that 	will 	help 	them 	select 	a 	lawyer. 	As
the 	Supreme 	Court 	observed 	in 	Ohralik 	v. 	Ohio 	State 	Bar
Association, 	436 	u.S. 	447, 	457 	(1978), 	in-person 	contacts 	can
convey 	information 	about 	the 	availability 	and 	terms 	of 	a 	lawyer's
or 	law, firm's 	legal 	services 	and, 	in 	this 	respect, 	serve 	much 	the
same 	function 	as 	print 	advertising.
We 	recognize 	that 	abuses 	may 	result 	from 	in-person
solicitation 	by 	lawyers. 	Injured 	or 	emotionally distressed
peop~e may 	be 	vulnerable 	to 	the 	exercise 	of 	undue 	influence 	when
face 	to 	face 	with 	a 	lawyer, 	as 	the 	Supreme 	Court 	observed 	in
Ohralik, 	436 	U.S. 	at 	465. 	We 	do 	not 	believe, 	however, 	that 	this
is 	a 	justification 	for 	a 	broad 	prohibition 	on 	all 	in-person
solicitation. 	The 	Federal 	Trade 	Commission 	considered 	the
7 	In 	its 	statement 	of 	policy 	regarding 	comparative 	advertising,
the 	Federal 	Trade 	Commission 	recognized 	the 	benefits 	of
comparative 	advertising 	and 	indicated 	concern 	about 	standards
set 	by 	self-regulatory 	bodies 	that 	might 	discourage 	the 	use
of 	such 	advertising:
"On 	occasion, 	a 	higher 	standard' of 	substantiation 	by
advertisers 	using 	comparative 	advertising 	has 	been
required 	by 	self-regulation 	entities. 	The 	Commission
evaluates 	comparative 	advertising 	in 	the 	same 	manner 	as
it 	evaluates 	all 	other 	advertising 	techniques 	••••
[I]nterpretations 	that 	impose 	a 	higher 	standard 	of
substantiation 	for 	com~arative claims 	than 	for
unilateral 	claims 	are 	lnappropriate 	and 	should 	be
revised." 	16 	C.F.R. 	l4.15(c) (2) 	(1986).

G. 	Robert 	Oliver, 	Chairperson 	-7-
concerns 	that 	underlie 	the 	Ohralik 	0plnlon 	when 	it 	decided
American 	Medical 	Association, 	94 	F.T.C. 	701 	(1979), 	aff'd, 	638
F.2d 	443 	(2d 	Cir. 	1980), 	aff'd 	memo 	by 	an 	egually 	divided 	court,
455 	u.s. 	676 	(1982). 	After 	weighing 	the 	possible 	harms 	and
benefits 	to 	consumers, 	the 	FTC 	ordered 	the 	AY~ 	to 	cease 	and
desist 	from 	banning 	solicitation, 	but 	permitted 	the 	A¥~ 	to
proscribe 	uninvited, 	in-person 	solicitation 	of 	persons 	who,
because 	of 	their 	particular 	circumstances, 	are 	vulnerable 	to
undue 	influence.
In-person 	solicitation 	by 	Iftwyers 	usually 	does 	not 	involve
the 	exercise 	of 	undue 	influence. 	Lawyers 	often 	encounter
poter.tial 	clients 	at 	meetings 	of 	political 	and 	business
organizations 	and 	at 	social 	events. 	Indeed, 	many 	lawyers
traditionally 	have 	built 	their 	law practices 	through 	such
contacts. 	Under 	such 	circumstances, 	the 	potential 	client 	need
not 	respond 	immediately 	and 	the 	possibility 	of 	undue 	influence 	is
minuscule. 	Similarly, 	lawyers 	present 	speeches 	and 	seminars 	to
prospective 	clients 	that 	establish 	goodwill 	anc 	help 	attendees 	to
understand 	the 	law 	and 	identify 	sitUqtions 	in 	which 	they 	might
need 	a 	lawyer. 	Such 	personal 	contacts 	present 	little 	risk 	of
undue 	influence 	and 	provide 	the 	benefit 	of 	enabling 	prospective
clients 	to 	assess 	t~e personal 	qualities 	of 	attorneys.
Accordingly, 	as 	to 	in-person 	solicitation, 	we 	urge 	that 	the
Rules 	and 	Standards 	be 	modified 	to 	prohibit 	only: 	(1)
solicitation 	involving 	false 	or 	deceptive 	communications; 	(2)
uninvited, 	in-person 	solicitation of 	persons 	who, 	because 	of
their 	particular 	circumstances, 	are 	vulnerable 	to 	undue
influence; 	and 	(3) 	solicitation 	of 	persons 	who 	have 	made 	known 	to
the 	lawyer 	that 	they 	do 	not 	want 	to 	be 	contacted 	by 	the 	lawyer.
Suc~ rules 	would 	protect 	consumers 	while, 	at 	the 	same 	time,
allowing 	them 	to 	receive 	information 	about 	available 	legal
services. 	In 	proscribing 	the 	use 	of 	undue 	influence 	during 	in-
persQn 	solicitation, 	phrasing 	designed 	to 	reach 	the 	same 	result,
as 	in 	proposed 	Rule 	and 	Standard 	7.3(b) (4), 	would 	have 	the
appropriate 	effect.
Telephone 	Solicitation
The 	comment 	to 	Rule 	7.3 	states 	that 	contact 	by 	telephone 	is
included 	in 	the 	prohibited 	personal 	contact. 	Telephone
solicitation 	is 	in 	some 	respects 	similar 	to 	in-person
solicitation; 	a 	lawyer 	might 	be 	able 	to 	persuade 	a 	vulnerable
person 	to 	hire 	the 	lawyer. 	But 	there 	a~e 	also 	dissimilarities
between 	the 	two 	forms 	of 	solicitation. 	Telephone 	solicitation
may 	present 	even 	less 	risk 	of 	the 	exercise 	of 	undue 	influence
than 	does 	in-person 	solicitation. 	Consumers 	are 	accustomed 	to
8 	To 	the 	extent 	that 	attorneys 	rely 	on 	client 	goodwill 	to
obtain 	referrals, 	a 	strategy 	of 	overreaching 	to 	gain 	clients
would 	seem 	to 	be 	counterproductive.

G. 	Robert 	Oliver, 	Chairperson 	-8-
telephone 	marketing. 	They 	receive 	calls 	from 	persons 	offering
the 	sale 	of 	various 	goods 	and 	services, 	conducting 	surveys 	about
products 	and 	services, 	seeking 	contributions 	to 	ct.arities, 	and
requesting 	support 	for 	political 	candidates. 	Consumers 	can
easily 	terminate 	offers 	of 	legal 	services 	communicated 	by
telephone.
On 	the 	other 	hand, 	there 	may 	be 	reasons 	why 	restrictions 	on
telephone 	solicitation 	not 	appropriate 	for 	other 	professionals
might 	still 	be 	properly 	applied 	to 	lawyers. 	The ~ standard 	may
be 	suitable 	for 	telephone 	solicitation, 	but 	may, 	on 	the 	contrary,
be 	too 	restrictive, 	so 	we 	are 	not 	yet 	ready 	to 	conclude 	that 	it
should 	be 	applied 	to 	telephone 	solicitation. 	Certainly,
telephone 	solicitation 	containing 	false 	or 	deceptive
communications, 	and 	telephone 	solicitation 	of 	persons 	who 	have
made 	known 	to 	the 	lawyer 	that 	they 	do 	not 	want 	to 	receive 	calls
from 	the 	lawyer, 	may 	appropriately 	be 	prohibited. 	But 	in 	any
case, 	the 	broad 	ban 	on 	telephone 	solicitation 	in 	proposed 	Rule
and 	Stan~drd 7.3 	is 	unnecessarily 	restrictive.
Written 	Communications
Proposed 	Rule 	and 	Standard 	7.3(b) 	would 	more 	narrowly
prohibit 	written 	communication 	if: 	ftthe 	communication 	involves
coercion, 	duress, 	fraud, 	overreaching, 	harassment, 	intimidation
or 	undue 	influence" 	«b) (3»; 	or 	"the 	lawyer 	knows 	or 	reasonably
should· know 	that 	the 	physical, 	emotional 	or 	mental 	state 	of 	the
person 	is 	such 	that 	the 	person 	could 	not 	exercise 	reasonable
judgment 	in 	employing 	a 	lawyer" 	«b) (4».
Written 	communication 	is 	unlikely 	to 	be 	coercive, 	or 	involve
the ,exercise 	of 	undue 	influence. 	As 	the 	New York 	Court 	of
Appeals 	has 	observed, 	"the 	elements 	of 	intimidation 	and
duress 	••• 	are 	not 	present 	in 	the 	case 	of 	mail 	solicitation 	and
• 	• 	.. 	the 	process 	of 	dec is ion-mak i ng 	may 	actually 	be 	aid ed 	by
infotmation 	contained 	in 	the 	mailing." 	In 	re 	Von 	~iegen, 	63
N.Y.2d 	163, 	170, 	470 	N.E.2d 	838, 	841 	(1984), 	cert. 	denied, 	105 	S.
Ct. 	2701 	(1985) • 	According 	to 	the 	U.S. 	Court 	of 	Appeals 	for 	the
Seventh 	Circuit, 	"individuals 	are 	less 	subject 	to 	harassment,
overreaching 	and 	duress 	through 	mailings 	than 	they 	are 	through
direct 	personal 	contact. 	It 	is 	easier 	to 	throw 	out 	unwanted 	mail
than 	an 	uninvited 	guest. 	A letter 	may 	be 	read 	through 	several
times 	and 	its 	contents 	reflected 	upon 	before 	a 	decision 	is
made." 	Adams 	v. 	Attorney 	Registration 	& Disciplinary 	Corr~ission,
801 	F.2d 	968, 	973 	(7th 	Cir. 	1986). 	On 	the 	other 	hand, 	the 	risk
of 	punishment 	for 	stepping 	over 	the 	somewhat 	ambiguous 	lines 	set
out 	in 	proposed 	Rule 	and 	Standard 	7.3(b) (3) 	and 	(4) 	could 	have 	a
chilling 	effect 	on 	mailings. 	While 	such 	regulatory 	flexibility

G. 	Robert 	Oli ver, 	Chairperson 	-9-
may 	be 	justified 	when 	there 	has 	been 	a 	history 	of 	harmful
conduct, 	we 	are 	aware 	of 	little 	evidence 	of 	abuse 	of 	written
solicitations. 	Consequently, 	we 	recommend 	that 	proposed 	Rule 	and
Sta~dard 	7.3(b) 	be 	amended 	to 	delete 	subsections 	(3) 	and 	(4).
Proposed 	Rule 	and 	Standard 	7.4: 	Communication 	of 	Fields 	of
Practice
Proposed 	Rule 	7.4 	and 	its 	accompanying 	comment would
prohibit 	the 	use 	of 	the 	term 	"specialist,· 	any 	derivative 	of 	that
root 	word, 	or 	any 	other 	claim 	"implying" 	that 	a 	lawyer 	is 	a
specialist, 	unless 	the 	attorney 	practices 	patent 	law 	or
admiralty, 	or 	has 	been 	certified 	as 	a 	specialist 	through 	a
program 	approved 	by 	the 	State 	Disciplinary 	Board 	of 	the 	State
Bar. 	While 	the 	rule 	does 	allow 	a 	lawyer 	to 	indicate 	fields 	of
practice, 	we 	believe 	that 	it 	is 	overly 	broad 	in 	restricting 	an
attorney's 	ability 	to 	make 	truthful 	claims 	that 	he 	or 	she 	has
developed 	distinct 	skills 	in 	a 	specific 	area 	of 	the 	law. 	A true
statement 	that 	an 	attorney 	is 	a 	member 	of 	an 	organization 	of
trial 	lawyers, 	for 	example, 	might 	be 	outlawed 	as 	an 	implied 	claim
of 	specialization, 	even 	though 	it 	informs 	consumers 	that 	the
attorney 	has 	sufficient 	interest 	in 	trial 	advocacy 	to 	join 	such
an 	organization 	and 	has 	access 	to 	the 	organization's 	training 	and
materials. 	There. are 	many 	ways 	to 	obtain 	expertise, 	and
information 	that 	an 	attorney 	has 	experience 	or 	special 	skills 	in
a 	particular 	field 	is 	clearly 	useful 	to 	consumers. 	The 	use 	of
the 	term 	"specialist" 	may 	be 	ghe 	clearest, 	most 	efficient way 	to
communicate 	this 	information.
Clearly, 	advertising 	claims 	concerning 	successful 	completion
of 	~ 	certification 	program can 	provide 	consumers 	with 	facts 	about
an, attorney's 	special 	skills 	when 	the 	program's 	requirements 	are
reasonably 	related 	to 	proficiency 	in 	the 	subject 	area
certified. 	On 	the 	other 	hand, 	when 	uncertified 	attorneys 	are
prohibited 	from 	truthfully 	advertising 	their 	training 	and 	skill,
consumers 	will 	be 	deprived 	of 	information 	to 	help 	them choose
among 	qualified 	practitioners. 	We 	believe 	that 	depriving
consumers 	of 	useful 	information 	about 	uncertified 	attorneys'
special 	skills 	or 	expertise 	could 	lessen 	competition 	in 	those
areas 	of 	legal 	practice 	for 	which 	certification programs 	exist.
In 	addition, 	the 	prohibition 	on 	advertising 	the 	receipt 	of 	a
certificate 	from 	a 	training 	program 	not 	previously 	approved 	by
the 	State 	Bar 	could 	discourage 	attorneys 	from 	taking 	additional
training 	after 	law 	school 	and 	could 	place 	a 	restraint 	on 	the
development 	of 	private 	certifying 	organizations. 	The 	approval
9 	Nor 	do 	we 	believe 	that 	advertising 	as 	a 	"specialist- 	would
create 	an 	unjustified 	expectation 	about 	the 	results 	that 	a
lawyer 	can 	achieve, 	any 	more 	than 	identifying 	oneself 	as 	a
surgeon 	generates 	an 	expectation 	that 	every 	operation 	will 	oe
a 	success.

-10-	G. 	Robert 	Oliver, 	Chairperson
process 	could, 	in 	fact, 	mislead 	consumers 	into 	thinking 	that
training 	programs 	lacking 	Bar 	approval 	are 	inferior 	and 	that
attorneys 	receiving 	certificates 	from 	such 	programs 	are 	less
qualified 	than 	practitioners 	trained 	in 	Bar-ap~roved programs.
The 	inefficiency 	and 	injury 	to 	competition 	would 	be 	particularly
acute 	if 	the 	requirements 	for 	Bar 	approval 	are 	not 	reasona£oy
related 	to 	attaining 	proficiency 	in 	the 	specialized 	field. 	The
prospect 	of 	state 	approval 	threatens 	to 	turn 	certification 	into 	a
form 	of 	licer.sing 	of 	a 	specialty 	in 	the 	minds 	of 	consumers, 	who
will 	ultimately 	Pii 	higher 	legal 	fees 	because 	of 	their
misunderstanding. 	.
We 	recommend 	that 	the 	Committee 	remove 	all 	prohibitions 	on
truthful, 	nondeceptive 	claims, 	express 	or 	implied, 	that 	a 	lawyer
is 	a 	specialist; 	and 	that 	it 	delete 	the 	provision 	for 	Bar
approval 	of 	certification 	programs 	so 	that 	attorneys 	who 	have
successfully 	completed 	certification 	or 	other 	training 	programs
wi)l 	be 	allowed 	to 	communicate 	that 	fact. 	Proposed 	Rule 	and
Standard 	7·.I(a), 	prohibiting 	false 	or 	deceptive 	communications,
would 	prevent 	claims 	concerning 	training 	that 	is 	not 	reasonably
related 	to 	proficiency 	in 	the 	sUbject,area.
Proposed 	Rule 	and 	Standard 	7.5: 	Firm 	Names 	and 	Letterheads
We 	support 	proposed 	Rule 	and 	Standard 	7.5 	to 	the 	extent 	that
they 	would 	permit 	a 	law 	firm 	to 	use 	a 	trade 	name. 	We 	differ,
however, 	with 	the 	prohibition 	on 	the 	use 	by 	a 	firm 	of 	more 	than
one 	name 	and 	the 	requirement 	that 	a 	trade 	name 	include 	the 	name
of 	at 	least 	one 	attorney 	practicing 	under 	the 	trade 	name.
A trade 	name 	is 	used 	to 	identify 	particular 	goods 	or
services. 	Over 	time, 	consumers 	tend 	to 	associate 	the 	trade 	name
with'attributes 	of 	the 	services, 	such 	as 	quality, 	price, 	or 	type
of 	service. 	In 	addition, 	a 	trade 	name 	by 	itself 	can 	convey
information, 	such 	as 	location 	of 	the 	provider 	or 	field 	of
practice.
10
11
Currently, 	for 	example, 	under 	Rule 	16 	of 	the 	State
Disciplinary 	Board 	Internal 	Rules, 	certification 	programs
will 	not 	be 	approved 	unless 	their 	prerequisites 	include
membership 	in 	the 	Georgia 	Bar. 	This 	requirement, 	in 	effect,
eliminates 	programs 	designed 	for 	atterneys 	throughout 	the
nation 	(~., 	programs 	for 	certified 	specialties 	in 	matters
of 	federal 	law 	or 	that 	have 	few 	practitioners 	in 	each 	state)
as 	candidates 	for 	approval. 	No 	plausible 	justification 	for
such 	a 	restriction 	comes 	to 	mind.
Claims 	relating 	to 	certificates 	that 	are 	not 	bona 	fide 	would
be 	prohibited 	under 	the 	rule 	against 	"false 	and 	misleading R
advertising.

G. 	Robert 	Oliver, 	Chairperson 	-11-
Proposed 	Rule 	and 	Standard 	7.S(e) 	state 	that 	era] 	law 	firm
shall 	not 	simultaneously 	practice 	law 	in 	Georgia 	under 	more 	than
one 	name." 	The 	comreent 	to 	Rule 	7.5 	gives 	the 	exa~ple that 	ABC
law 	firm 	may 	not 	operate 	a 	separate 	office 	called 	ABC 	Legal
Clinic.
A law 	firm 	may 	wish 	to 	use 	more 	than 	one 	name 	to 	create
separate 	identities 	for 	different 	offices 	if 	each 	office
practices 	in 	a 	different 	area 	of 	the 	la~, 	provides 	a 	different
level 	of 	service, 	attracts 	a 	different 	clientele 	or 	is 	marketed
differently. 	It 	may 	be 	more 	efficient 	for 	a 	law 	firm 	to 	have
different 	firm 	names 	associated 	with 	services 	with 	different 	sets
of 	attributes 	in 	order 	to 	communicate 	more 	easily 	~ith potential
clients 	through 	advertising 	and 	reputation. 	For 	example, 	one
firm 	name 	might 	be 	used 	for 	complex 	corporate 	services 	while
another 	would 	be 	used 	for 	more 	routine 	individual 	services.
While 	a 	law 	firm 	could 	set 	up 	a 	separate 	entity 	to 	operate
under 	a 	different 	firm 	name, 	there 	may 	be 	cost 	savings 	from
corr.bining 	lesal 	operations 	under 	one 	firm, 	througr. 	the 	sharing 	of
overhead, 	computer 	services, 	and 	management 	and 	accounting
functions 	for 	example. 	In 	addition, 	a 	firm 	could 	have 	greater
flexibility 	in 	shifting 	resources, 	such 	as 	legal 	support 	staff,
as 	client 	demand 	fluctuates, 	if 	the 	separate 	operations 	were 	part
of 	one 	firm. 	These 	efficiencies 	could 	result 	in 	lower 	costs 	and
hence 	lower 	prices 	for 	clients.
We 	believe 	the 	risk 	that 	the 	public 	might 	be 	confused 	or
misled 	by 	a 	law 	firm 	practicing 	under 	different 	names 	is 	minimal
ana 	is 	outweighed 	by 	the 	possible 	benefits 	described 	above.
Furthermore, 	it 	may 	be 	less 	misleading 	to 	the 	public 	to 	have
distinct 	legal 	services 	associated 	with 	different 	names 	so 	that
the 	consumer 	will 	know 	to 	which 	office 	to 	go 	to 	obtain 	the
services 	he 	or 	she 	needs. 	Therefore, 	we 	recommend 	that 	proposed
Rule 	and 	Standard 	7.5(e) 	be 	deleted.
I
Proposed 	Rule 	and 	Standard 	7.S(f) (1) 	require 	that 	a 	trade
name 	include 	"the 	name 	of 	at 	least 	one 	of 	the 	lawyers 	practicing
under 	said 	name," 	unless 	the 	firm 	name 	consists 	of 	the 	names 	of
deceased 	or 	retired 	firm 	members. 	Current 	Standard 	9 	permits 	the
use 	of 	a 	trade 	name 	without 	such 	a 	requirement. 	Inclusion 	of 	the
attorney's 	name 	may 	distract 	consumers 	from 	the 	information 	the
firm 	wishes 	to 	convey 	through 	its 	name, 	such 	as 	its 	area 	of
practice 	or 	location 	of 	its 	office. 	The 	requireme~t

G. 	Robert 	Oliver, 	Chairperson 	-12-
of 	including 	a 	lawyer's 	name 	would 	appear 	unnecessary 	since 	the
consumer 	will 	learn 	the 	identity 	of 	the 	lawyer 	who 	will 	provide
him 	legal 	services 	when 	he 	visits 	the 	law 	firm's 	office.
Furthermore, 	the 	requirement 	may 	not 	inform 	the 	consumer 	of 	the
identity 	of 	the 	lawyers 	who 	will 	handle 	his 	or 	her 	matter
because, 	especially 	in 	a 	large 	firm, 	the 	named 	partners 	may 	have
no 	involvement 	in 	the 	consumer's 	matter. 	Finally, 	we 	note 	that
the 	Code 	of 	Professional 	Responsibility 	Committee 	recognized 	that
firm 	names 	need 	not 	include 	the 	name 	of 	a 	lawyer 	practicing 	in
the 	firm 	because 	it 	did 	not 	impose 	this 	requirement 	on 	firms
whose 	names 	are 	limited 	to 	the 	names 	of 	deceased 	or 	retired
members. 	Therefore, 	we 	recommend 	that 	subparagraph 	(1) 	be
deleted 	from 	proposed 	Rule 	and 	Standard 	7.5(f).
Conclusion
It 	appears 	that 	the 	Committee's 	proposed 	Rules 	and 	Standards
will 	allow 	the 	dissemination 	of 	more 	information 	about 	legal
services. than 	the 	current 	Code 	of 	Professional 	Responsibility 	and
Standards 	of 	Conduct 	and 	will 	thereby 	benefit 	consumers 	of 	legal
services. 	We 	urge 	that 	the 	Committee 	eliminate 	the 	remaining
unnecessary 	restrictions 	on 	competition 	among 	attorneys 	by:
(1) 	modifying 	the 	comment 	to 	proposed 	Rule 	1.5 	to 	make 	clear 	that
only 	extremely 	hig~ fees 	are 	prohibited; 	(2) 	deleting 	all 	of
proposed 	Rule 	and 	Standard 	5.4, 	except 	paragraphs 	(c) 	and 	(d) (3);
(3) 	modifying 	proposed 	Rule 	and 	Standard 	7.1 	to ~ake 	clear 	that
endors~ments and 	success 	and 	experience 	claims 	are 	permitted, 	and
to 	require 	only 	that 	an 	attorney 	have 	a 	reasonable 	basis 	for 	any
material, 	objective 	claims; 	(4) 	modifying 	proposed 	Rule 	and
Standard 	7.3 	to 	permit 	in-person 	contact 	with 	all 	but 	those 	who,
because 	of 	their 	particular 	circumstances, 	are 	vulnerable 	to
undue 	influence, 	or 	who 	have 	informed 	the 	lawyer 	that 	they do 	not
wish 	to 	be 	solicited, 	to 	eliminate 	the 	broad 	ban 	on 	telephone
contact, 	ana 	to 	delete 	proposed 	Rule 	and 	Standard 	7.3(b) (3) 	and
(4) 	governing 	written 	communications; 	(5) 	amending 	proposed 	Rule
and 	Standard 	7.4 	to 	allow 	express 	or 	implied 	claims 	of 	specialty
or 	certification; 	and 	(6) 	deleting 	proposed 	Rule 	and 	Standard
7.5~e), which 	prohibit 	a 	law 	firm 	from 	practicing 	under 	more 	than
one 	name, 	and 	proposec 	Rule 	and 	Standard 	7.5(f} (1), 	which 	require
inclusion 	of 	the 	name 	of 	a 	lawyer 	in 	a 	trade 	name.

G. 	Robert 	Oliver, 	Chairperson 	-13-
We 	hope 	that 	this 	letter 	will 	be 	of 	assistance 	in 	pointing
out 	ways 	in 	which 	particular 	rules 	and 	standards 	~ay 	restrict
competition 	and 	injure 	consumers, 	and 	we 	appreciate 	having 	had
the 	opportunity 	to 	present 	these 	views.
Sincerely 	yours,
cg;I::Z~:zDirector
Bureau 	of 	Competition