FTC Staff Comment Before Supreme Court of Appeals of West Virginia Concerning Proposed Rules on Attorney Fees, Practice With Non-Lawyers, Advertising, and Solicitation

,'*1 ".
UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON, D.C. 20580
May 	1, 	1987
Honorable 	Darrell 	V.McGraw, 	Jr.
Chief 	Justice
Supreme 	Court 	of 	Appeals 	of West 	Virginia
State 	capitol 	Building
Charleston, 	West 	Virginia 	25305
Dear 	Chief 	Justice 	McGraw:
'The 	Federal 	Trade 	Commission 	staff 	is 	pleased 	to 	submit
these 	comments 	respecting 	the 	proposed 	Rules 	of 	Professional
Conduct 	of 	the 	West 	Virginia 	State 	Bar. l 	Ancil 	Ramey, 	the 	Clerk
of 	the 	Court, 	indicated 	to 	us 	that 	although 	the 	Court 	is 	not
holding 	a 	formal 	comment 	period 	regarding 	the 	proposed 	rUles, 	it
would ~onetheless be 	interested 	in 	receiving 	our 	remarks.
In 	this 	letter, 	we 	focus 	on 	tne 	proposed 	rules 	regarding
fees, 	practice 	with 	nonlawyers, 	advertising, 	and 	solicitation.
These 	proposed 	rules 	would 	in 	some 	respects 	permit more 	attorney
communication 	with 	prospective 	clients 	than 	the 	existing 	rules
allow, 	and 	should 	therefore 	assist 	consumers, 	to 	at 	least 	a
limited 	extent, 	in making more 	informed 	choices 	about 	legal
services. 	For 	example, 	the 	proposed 	rules 	would 	eliminate 	the
existing 	prohibitions 	on 	"undignified" 	advertising 	and 	the
existing 	restrictions 	on 	the 	use 	of 	trade 	names. 	We 	are
concerned, 	however, 	that 	some 	of 	the 	proposed 	rules 	may 	still
harm 	consumers 	by 	restraining 	price 	competition, 	discouraging
r~ferrals and 	associations 	between 	attorneys, 	restricting 	the
development 	of 	innovative 	and 	potentially 	more 	efficient 	forms 	of
legal 	practice, 	and 	unnecessarily 	limiting 	the 	information
available 	to 	consumers.
(
As 	is 	discussed 	in 	more 	detail 	below, 	we 	urge 	the 	Court 	to:
(1) 	clarify 	in 	the 	cOffimentary 	to 	proposed 	Rule 	1.5(a) 	that 	only
fees 	that 	are 	so 	high 	as 	to 	suggest 	a 	breach 	of 	fiduciary 	duty 	to
the 	client 	vlould 	be 	unreasonable i 	(2) 	delete 	proposed 	Rule 	1.5 (e)
so 	as 	not 	to 	discourage 	referrals 	and 	associations 	of 	attorneys
in 	different 	law 	firms 	for 	particular 	cases; 	(3) 	eliminate 	the
restrictions 	in 	proposed 	Rule 	5.4 	on 	practice 	with 	nonlawyers;
(4) 	amend 	proposed 	Rule 	7.1 	to 	clarify 	that 	truthful,
1 	These 	comments 	represent 	the 	views 	of 	the 	Federal 	Trade
Com~ission's Bureaus 	of 	Competition, 	Consumer 	Protection, 	and
Economics, 	and 	not 	necessarily 	those 	of 	the 	Com~ission itself.
The 	Commission 	has, 	however, 	voted 	~o 	authorize 	us 	to 	submit
these 	comments 	for 	your 	consideration.
b;- /.

·,
Honorable 	Darrell 	V. 	McGraw, 	Jr. 	-- 	Page 	2
nondeceptive 	endorsements 	and 	experience, 	success, 	and 	comparison
claims 	are 	permitted; 	(5) 	delete 	proposed Rule 	7.2(a), 	and 	modify
proposed Rule 	7.2(c) 	to 	allow 	the 	payment 	of 	referral 	fees 	to
attorneys 	and 	the 	use 	of 	for-profit 	referral 	services; 	(6) 	delete
proposed 	Rule 	7.3 	and 	adopt 	instead more 	limited 	restrictions 	on
solicitation; 	and 	(7) 	modify 	proposed 	Rule 	7.4 	to 	allow 	express
and 	implied 	claims 	of 	specialty. 	.
Proposed 	Rule 	1.5: 	Fees
Proposed 	Rule 	1.5ea): 	Reasonableness 	of 	Fee
Proposed 	Rule 	1.5(a) 	states 	that 	"[a] 	lawyer's 	fee 	shall 	be
reasonable.," 	and 	sUbparagraph 	(3) 	provides 	that 	"the 	fee
customarily 	charged 	in 	the 	locality 	for 	similar 	legal 	services"
is 	to 	b~ considered 	in 	determining 	reasonableness. 	Lawyers 	might
interp:t;et 	this 	language 	to 	bar 	"un~easonably" low 	fees. 	Such 	an
interpretation 	would 	discourage 	pr~~e competition 	among
traditional 	practitioners; 	it 	also 	could 	restrain 	competition
from 	legal 	clinics 	and 	other 	nontraditional 	providers 	of 	legal
services.
The 	proposed 	rule 	is 	also 	undesirable 	insofar 	as 	it may
appear 	to 	set 	a 	ceiling 	on 	fees. 	We 	do 	not 	believe 	that
consumers 	of 	legal 	services 	would 	benefit 	from 	price 	regulation,
whether 	a 	minimum 	or 	maximum price 	is 	imposed. 	For 	that 	reason,
we 	believe 	that 	proposed 	Ru2e 	1.5(a) 	should 	be 	applied 	only 	in
extreme 	cases 	where 	an 	attorney's 	fee 	is 	so 	high 	that 	it
represents 	a 	clear 	abuse 	of 	the 	client 	or 	suggests 	a 	possible
breach 	of 	fiduciary 	duty. 	We 	the~efore 	suggest 	that 	the
accompanying 	commentary 	make 	clear 	that 	low 	fees 	may 	never 	be
deemed 	unreasonable 	and 	that 	fees 	may 	be 	found 	to 	be 	unreasonably
hign 	only 	if, 	under 	the 	circu~stances, the 	attorney 	appears 	to 	be
exploiting 	the 	client.
Prooosed 	Rule 	1.5ee): 	Fee-Solitting
Proposed 	Rule 	1.5 (e), 	apparently 	derived 'from 	Rule 	1.5 (e) 	of
the 	ABA'S 	Model 	Rules 	of 	Professional 	Conduct, 	states 	that
division 	of 	a 	fee 	between 	la~yers ~ho are 	not 	in 	the 	same 	firm
may 	be 	made 	only 	if 	the 	client 	is 	advised 	of 	the 	division 	and
does 	not 	object, 	the 	fee 	is 	"reasonable," 	and 	the 	division 	is 	in
proportion 	to 	the 	services 	performed 	by 	each 	la~~er or,
alternatively, 	according 	~o the 	allocation 	agreed 	on 	by 	the
lav~ers if, 	by 	~ritten ag~eement with 	the 	client, 	each 	la~yer
assumes 	joint 	responsibility 	for 	the 	rep~esentation. 	~e 	are
concerned 	that 	the 	p~oposed rule 	might 	unnecessarily 	discourage
both 	referrals 	and 	associations 	between 	lawyers 	in 	differe~t law

Honorable 	Darrell 	V. 	McGraw, 	Jr. 	-- 	Page 	3
firms 	under 	circumstances 	in 	which 	such 	activity may 	benefit
consumers.
Division 	of 	fees 	may 	provide 	incentives 	for 	attorney
referrals 	and 	associations 	that 	are 	desirable 	for 	the 	client.
Referrals 	by 	one 	lawyer 	to 	another may 	help 	consumers 	identify a
lawyer whose 	expertise 	is 	appropriate 	for 	their 	particular 	case
and 	whose 	caseload 	allows 	prompt 	attention 	to 	that 	case. 	Absent
a 	referral, 	consumers 	might 	have 	to 	use 	less 	efficient means 	of
engaging 	the 	services 	of 	an 	attorney 	qualified 	to 	handle 	their
particular 	case. 	In 	addition, 	a 	referral 	to 	a 	lawyer with
particular 	expertise, 	even 	if 	based 	in 	part 	on 	the 	financial
interest 	of 	the 	referring 	lawyer, 	may 	serve 	the 	client's 	interest
better 	than 	retention 	of 	the 	case 	by 	a 	lawyer who 	lacks 	the
requisite 	expertise.
P~6posed Rule 	l.5(e) 	would 	inhibit 	referrals 	by 	lawyers.
First,' the 	provision 	that 	a 	division 	of 	fees 	be 	"in 	proportion 	to
the 	services 	performed 	by 	each 	lawy-er" 	might 	be 	interpreted 	to
prohibit 	referral 	fees, 	because 	it 	is 	unclear 	whether 	giving 	a
prospective 	client 	the 	name 	and 	telephone 	number 	of 	another
lawyer 	competent 	to 	handle 	that 	client's 	legal 	problems
constitutes 	compensable 	"services" 	under 	the 	language 	of 	the
proposed 	rule. 2 	Even 	if 	this 	provision 	were 	interpreted 	to
permit 	referral 	fees, 	it 	might 	be 	interpreted 	to 	allow 	only
nominal 	fees. 	Second, 	the 	alternative 	requirement 	that 	a
referring 	attorney 	assume 	respor.sibility 	for 	the 	independent
professional 	judgments 	of 	the 	attorney 	who 	is 	actually 	handling
the 	case 	is 	likely 	to 	create 	a 	substantial 	deterrent 	to 	making
r~ferrals. 	Because 	of 	the 	liability 	for 	malpractice 	that 	joint
responsibility 	might 	entail,3 	the 	referring 	attorney 	probably
( 	2 	According 	to 	case 	law 	and 	ABA 	Opinions, 	a 	mere 	referral
does 	not 	constitute 	a 	legal 	service 	and 	therefore 	an 	attorney 	is
not 	entitled 	to 	any 	portion 	of 	the 	fee 	when 	he 	has 	merely
referred 	a 	client 	to 	another. 	See 	Palmer v. 	Breyfoole, 	217 	Kan.
128, 	535 	P.2d 	955, 	958 	(1975); 	McFarland 	v. 	Georoe, 	316 	S.W.2d
662 	(Mo. 	196B); 	Note, 	Referral 	Fees 	and 	the 	Effect 	of
Discinlinary 	Rule 	2-107, 	8 	J. 	Legal 	Prof. 	225, 	228-29 	(1983);
Note, 	Division 	of 	Fees 	Between 	Attornevs, 	3 	J. 	Legal 	Prof. 	179,
186 	(1978) 	(citing ABA 	Opinions).
3 	The 	comment 	to 	proposed 	Rule 	1.5 	on 	division 	of 	fees
states 	that 	"(jJoint 	responsibility 	for 	the 	representation
e~~ails the 	obligations 	stated 	in 	Rule 	5.1 	for 	p~rposes of 	the
~atter involved." 	Proposed 	Rule 	5.1 	goverDs 	responsibilities 	of
a 	par~ner 	for 	the 	ethical 	conduct 	of 	another 	par~ner in 	the 	same
(co:ltinued ... )

Honorable 	Darrell 	V. 	McGraw, 	Jr. 	-- 	Page 	4
would 	be 	compelled 	to 	review 	the 	other 	attorney's 	work. 	This
could 	result 	in 	duplication 	of 	effort. 	It 	would 	seem 	that 	the
referring 	attorney 	and 	the 	attorney 	handling 	the 	case 	should 	be
able 	to 	determine 	among 	themselves 	how 	to 	divide 	the 	total 	legal
fee.
Two 	justifications 	have 	been 	offered 	to 	support 	bans 	on
referral 	fees. 	First, 	it 	has 	been 	argued 	that 	permitting
referral 	fees 	would 	tempt 	some 	lawyers 	to 	refer 	legal 	matters 	to
the 	lawyer who 	paid 	the 	highest 	referral 	fee, 	rather 	than 	to 	the
best 	qualified 	lawyer. 	In 	personal 	injury 	and 	other 	cases 	that
are 	taken 	on 	a 	contingent 	fee 	basis, 	however, 	the 	referring
lawyer 	typically 	receives 	one-third 	of 	any 	fee 	recovered 	by 	the
lawyer 	who 	handles 	the 	case. 4 	Thus, 	it 	is 	probable 	that 	the
referring 	attorney 	will 	select 	the 	lawyer who 	he 	believes 	is 	the
most 	likely 	to 	recover 	the 	largest 	award 	for 	the 	prospective
client,' 	After 	all, 	20% 	of 	an 	attorney's 	recovery 	in 	a 	contingent
fee 	case 	is 	better 	than 	40% 	of 	nothing; 	to 	this 	extent, 	the
attorney's 	and 	the 	client's 	intereits 	are 	the 	same. 	In 	addition,
a 	lawyer 	referring 	a 	client 	to 	a 	specialist 	has 	every 	incentive
to 	make 	good 	referrals 	in 	order 	to 	maintain 	client 	goodwill, 	in
the 	interest 	of 	obtaining 	repeat 	business 	and 	of 	preserving 	his
or 	her 	professional 	reputation.
!'Second, 	some 	have 	argued 	that 	the 	attorney 	to 	whom 	the 	case
is 	referred 	will 	increase 	the 	total 	fee 	paid 	by 	the 	client 	in
order 	to 	recoup 	the 	referral 	fee. 	This 	does 	not 	appear 	to 	be 	a
valid 	concern. 	First, 	in 	a 	genuinely 	competitive 	market 	for
legal 	services--that 	is, 	one 	in 	which 	information 	about 	services
anp-fees 	is 	easily 	available 	to 	consumers--the 	attorneys 	could
not 	raise 	their 	fees 	without 	losing 	some 	clients 	who 	are 	price-
sensitive. 	In 	addition, 	by 	facilitating 	referrals 	to 	experts,
referral 	fees 	may 	actually 	reduce 	the 	total 	fees 	charged 	to
cli~nts. 	Because 	of 	their 	more 	predictable 	and 	more 	specialized
workload, 	experts 	may 	be 	able 	to 	reduce 	costs 	and 	pass 	such
savings 	on 	to 	clients.
An 	association 	of 	two 	or 	more 	la~~ers in 	different 	firms 	may
also 	benefit 	consumers. 	As 	the 	comment 	to 	proposed 	Rule 	1.5,
3( ••• continued)
law 	firm, 	as 	well 	as 	responsibilities 	of 	supervisory 	lawyers.
Because 	it 	focuses 	on 	these 	relationships, 	its 	application 	in 	the
context 	of 	a 	"joint 	responsibility" 	situation 	is 	unclear.
feb.
4 	Referral
1, 	1£;85, 	at
?ees:
40.
Evervbo~v Does 	It, 	But 	Is 	It 	OK?, 	A3A 	"T'-' . ,

Honorable 	Darrell 	V. 	McGraw, 	Jr. 	-- 	Page 	5
entitled 	"Division 	of 	Fee," 	states, 	such 	associations 	may 	benefit
a 	client 	in 	cases 	in 	which 	neither 	attorney 	alone 	could 	serve 	the
client 	as 	well. 	For 	example, 	one 	lawyer 	may 	not 	have 	sufficient
time, 	resources, 	or 	expertise 	to 	handle 	all 	aspects 	of 	a
particular client's 	case.
Proposed 	Rule 	1.5(e) 	might 	discourage 	such 	associations.
The 	provision 	that 	a 	division 	of 	fees 	between 	attorneys 	in
different 	law 	firms 	be 	proportional 	to 	the 	services 	performed by
each 	lawyer 	would 	impose 	rigidity 	on 	the 	allocation 	of 	the 	fee.
If 	lawyers 	were 	allowed 	to 	negotiate 	their 	respective 	shares 	of
the 	total 	legal 	fee, 	they 	could 	allocate 	the 	fee 	according 	to 	the
factors 	they 	deem 	important, 	including 	number 	of 	hours 	spent,
prior 	knowledge 	of 	the 	facts, 	relationship with 	the 	client, 	or
degree 	of 	expertise. 	The 	alternative 	provision, 	imposing 	joint
respon~ibility on 	one 	attorney 	for 	the 	independent 	professional
jUdgments 	of 	another, 	also 	appears 	likely 	to 	deter 	associations
of 	attorneys 	in 	different 	law 	fir~~, 	just 	as 	joint 	responsibility
would 	deter 	attorney 	referrals.
For 	the 	reasons 	stated 	above, 	we 	urge 	the 	Court 	to 	delete
proposed 	Rule 	1.S(e) 	in 	its 	entirety. 	It 	is 	not 	clear 	that 	any
regulation 	of 	division 	of 	fees 	is 	necessary. 	Even 	if 	some 	such
regulation 	is 	deemed 	necessary, 	the 	less 	restrictive 	alternative
of 	requiring 	disclosure 	to 	the 	client 	of 	the 	existence 	of 	the 	fee
division 	arrangement 	might 	be 	imposed. 	Such 	disclosure 	would
allow 	the 	client 	to 	choose 	between 	accepting 	or 	declining 	a
referral 	or 	association.
P:!:"o'::'osed 	Rule 	5.4: 	Professior:al 	In::::eDe!'lde:;ce 	of 	a 	Tav!Ve:!:"
Proposed 	Rule 	5.4 	p:!:"ohibits 	a 	lawyer 	from 	forming 	a
partnership 	or 	sharing 	legal 	fees 	wi~h a 	nonlawyer, 	except 	under
limited 	circuIT.stances, 	or 	from 	practicing 	in 	an 	organization
authorized 	to 	practice 	law 	for 	a 	profit 	if 	a 	nonla\o.ryer 	owns 	an
interest 	in 	the 	organization 	or 	is 	an 	officer 	or 	director. 	This
proposed 	rule 	would 	limit 	the 	ability 	of 	lav~ers to 	establish
mUlti-disciplinary 	practices 	with 	other 	p:!:"ofessionals, 	such 	as
psychologists 	or 	accountants, 	to 	deal 	efficiently 	with 	both 	the
legal 	and 	nonlegal 	aspects 	of 	specific 	problems. 	Proposed 	Rule
5.4 	also 	would 	appea:!:" 	to 	preclude 	lawye:!:"s 	from 	including 	any 	lay
persons, 	such 	as 	marketing 	directors, 	as 	partners 	in 	their 	law
fi:!:"ms. 	Finally, 	such 	a 	restriction 	would 	appear 	to 	prohibit
corporate 	prac~ice, 	and 	the:!:"eby 	prevent 	the 	use 	of 	potentially
efficie~t business 	formats.
In 	A~erica!'l Medical 	A5soc i atio!'l, 	9~ 	F.T.C. 	701, 	1017-18
(1979), 	a::'o, 	E3S 	F.2d 	4.;3 	(2d 	Cir. 	lSBO), 	2.ff'd 	r..e:::. 	bv 	a:i

Honorable 	Darrell 	V. 	McGraw, 	Jr. 	-- 	Page 	6
ecrually 	divided 	Court, 	455 	U.S. 	676 	(1982), 	the 	Federal 	Trade
Commission 	found 	that 	the 	AY~'s ethical 	restrictions 	on 	the
formation 	of 	professional 	associations 	with 	nonphysicians 	had 	an
adverse 	effect 	on 	competition. 	The 	AY~'s form 	of 	practice
restrictions 	precluded 	a 	wide 	variety 	of 	professional 	ventures
and 	potentially 	efficient 	business 	formats, 	such 	as 	health
~aintenance organizations 	and 	prepaid 	health 	care 	plans. 	The
Commission 	concluded 	that 	the 	prohibitions 	were 	much 	broader 	than
needed 	to 	prevent 	nonphysician 	influence 	over 	medical 	procedures
or 	consumer 	deception 	about 	the 	skills 	of 	a 	nonphysician 	partner
or 	associate.
The 	staff 	of 	the 	Federal 	Trade 	Commission's 	Bureau 	of
Economics 	concluded 	from 	a 	study 	of 	the 	optometric 	profession
that 	the 	price 	of 	optometric 	services 	is 	lower 	in 	jurisdictions
in 	which 	business 	assogiations 	between 	professionals 	and 	lay
person~ 'are 	permitted.~ 	Restrictions 	on 	such 	business
associations 	impede 	the 	formation 	of 	chain 	firms 	and 	other volume
onerations 	and 	thus 	make 	it 	difficult 	to 	achieve 	economies 	of
scale. 6
Proposed 	Rule 	5.4 	would 	limit 	potentially 	procompetitive
professional 	ventures, 	innovative 	business 	formats, 	and 	perhaps
some 	forms 	of 	prepaid 	legal 	services. 	Paragraphs 	(c) 	and 	(d) (3)
alone 	should 	adequately 	preserve 	the 	lawyer's 	independent
professional 	jUdgment. 	Ke 	therefore 	urge 	the 	Court 	to 	delete 	all
of 	proposed 	Rule 	5.4, 	except 	paragraphs 	(c) 	and 	(d) (3).
?~oDosed Rule 	7.1: 	communications 	Concernincr 	a 	Lawver's 	Services
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
~as 	permitted, 	many 	Americans 	failed 	to 	obtain 	the 	services 	of 	an
5 	Bureau 	of 	Economics, 	Federal 	T~ade Commission, 	Effects 	of
?estrictions 	en 	Adver~ising and 	Com~ercial Practice 	in 	the
Professions: 	The 	Case 	of 	Optometry 	25-26 	(1980).
6 	Bureau 	cf 	Consu~e~
op~t~al~ic Practice 	Rules:
P~actice 57-60 	(1936).
?~o~ect:c~, =ede~al
S~a~e ~e5~~ictic~s
Trade 	Co~~ ssicn,
on 	Co~merc al

Honorable 	Darrell 	V. 	McGraw, 	Jr. 	-- 	Page 	7
attorney, 	even when 	they 	had 	serious 	legal 	problems,7 	primarily
because 	of 	their 	fear 	that 	legal 	representation 	would 	cost 	too
much 	or 	their 	inability 	to 	locate 	a 	lawyer 	sufficiently 	skilled
at 	handling 	their 	particular 	problems. S 	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 	lower 	prices. 9 	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, 	if 	not 	higher 	ttan, 	that 	provided 	by 	firms 	that 	do 	not
advertise. 10
\ve 	fully 	endorse 	the 	view 	that 	false 	and 	deceptive
advertising 	should 	be 	prohibited. 	Nonetheless, 	as 	set 	forth
below, 	we 	are 	concerned 	that 	the 	definition 	of 	"false 	or
misleading" 	contained 	in 	proposed 	Rule 	7.1 	may 	prohibit 	much
truthful, 	nondeceptive 	advertising.
?roDosed 	Rule 	7.1(b): 	"Unjustified 	EXDectations"
The 	West 	Virginia 	state 	Bar 	proposes 	that 	the 	Court 	adopt,
in 	connection with 	proposed 	Rule 	7.1, 	the 	comments 	drafted 	by 	the
American 	Bar 	Association 	with 	respect 	to 	the 	identical 	provisions
in 	ABA Model 	Rule 	7.1. 	The 	ABA 	comments 	state:
The 	prohibition 	in 	paragraph 	(b) 	of
statements 	that 	rr.ay 	create 	"unjustified
7 	?or 	example, 	a 	nationv:ide 	survey 	in 	1974 	by 	the 	American
Bar 	Foundation 	and 	the 	American 	Bar 	Association 	found 	that 	only
nin"e 	percent 	of 	the 	people 	\-.'ho 	had 	property 	damage 	pr,:)bler.:s, 	ten
percent 	of 	those 	who 	had 	landlord 	problems, 	and 	one 	percent 	of
those 	who 	felt 	that 	they 	were 	the 	victims 	of 	employme~t
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).
8 	rd. 	at 	228, 	231.
9 	Cleveland 	Regional 	Office 	and 	Bureau 	of 	~concmics,
Federal 	Trade 	CO~ffiission, I~proving Cons~~er Access 	to 	Legal
Services: 	The 	Case 	fer 	Re~oving Restrictions 	on 	Truthful
Adver~ising (1984).
28 	}:uris 	& ~=C~es~e~~, 	~~\·e~~~si~~ 	a~~ 	~~e 	?~ice 	a~j 	Qu~:i~\~
o~ 	Te~al 	Services: 	The 	Case 	~or ~e=al 	Cli~icc, 	1979 	A~. 	3.
?o~~j. 	Research 	J. 	179.

Honorable 	Darrell V. 	McGraw, 	Jr. 	-- 	Page 	8
expectations" 	would 	ordinarily 	preclude
advertisements 	about 	results 	obtained 	on
behalf 	of 	a 	client, 	such 	as 	the 	amount 	of 	a
damage 	award 	or 	the 	lawyer's 	recording
obtaining 	favorable 	verdicts, 	and
advertisements 	containing 	client
endorsements.
The 	comments 	suggest 	that 	such 	information 	"may 	create 	the
unjustified 	expectation 	that 	similar 	results 	can 	be 	obtained 	for
others 	without 	reference 	to 	the 	specific 	factual 	and 	legal
circumstances." 	This 	interpretation 	of 	the 	phrase 	"likely 	to
create 	an 	unjustified 	expectation" 	is 	so 	broad 	that 	it 	could
chill 	the 	use 	of 	much 	advertising 	that 	is 	truthful 	and 	beneficial
to 	consumers. 	For 	example, 	consumers 	may 	wish 	to 	consider 	an
attorney's 	past 	results 	as 	one 	of 	several 	factors 	in 	selecting 	a
lawyer! 	While 	it 	may 	be 	impossible 	to 	provide 	complete
information 	about 	prior 	cases 	in 	an advertisement, 	there 	is 	no
reason 	to 	believe 	an 	advertisement 	of 	prior 	experience 	could 	not
be 	presented 	in 	a 	way 	that 	is 	not 	deceptive. 	"[I]t 	seems
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 	of 	Arizona,
433 	1!.. S. 	350, 	374 	(1977).
In 	addition, 	we 	urge 	the 	Court 	to 	delete 	example 	3 	of 	the
comment 	concerning 	proposed 	Rule 	7.1. 	While 	the 	commentary
derived 	from 	the 	ABA Model 	Rules 	appears 	to 	prohibit 	all
advertising 	concerning 	past 	results 	or 	client 	endorsements,
example 	3 	appears 	to 	permit 	some 	such 	advertising. 	These 	two
portions 	of 	the 	co~ment conflict wit~ one 	another 	and 	thus 	sc~e
att?rneys 	might 	not 	understand 	which 	portion 	would 	govern 	their
conduct. 	Moreover, 	it 	is 	unclear 	what 	advertisements 	must
include 	in 	order 	to 	"exclude 	misleading 	comparisons," 	as 	required
by 	example 	3. 	The 	ambiguity 	of 	this 	comment 	could 	chill
advertising 	of 	past 	results 	and 	advertisements 	containing 	client
endorseme:1ts.
Advertising 	by 	means 	of 	testimonials 	and 	endorsements 	has
traditionally 	been 	recognized 	as 	effective 	by 	sellers 	of 	goods
and 	services. 	For 	example, 	the 	listing 	of 	certain 	clients 	such
as 	major 	banks 	or 	corporations 	in 	the 	Martindale-Hubbell
directory 	suggests 	that 	a 	firm 	can 	handle 	co~plicated legal
problems 	in 	which 	large 	su~s of 	money 	~ay be 	at 	risk.
Advertising 	in 	which 	clients 	attest 	~ruthfully that 	they 	use 	a
firm's 	legal 	services 	gives 	t~e 	general 	public 	the 	same
inrorrration 	that 	is 	available 	to 	users 	or 	legal 	directories.
~oreover, 	advertising 	in 	which 	clie~ts discuss 	~heir reasons 	for
satisfac~ion ~ith a 	law 	firm 	co~veys eve~ mc~e 	info~~a~ic~ ~ta~

Honorable 	Darrell 	V. 	McGraw, 	Jr. 	-- 	Page 	9
do 	legal 	directories. 	Furthermore, 	an 	advertisement 	in which 	a
famous 	athlete 	or 	actor 	states 	truthfully 	that 	he 	or 	she 	uses 	a
particular 	firm 	or 	attorney 	indicates 	to 	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. 	Finally, 	testimonials 	are 	not
necessarily 	misleading 	and may 	be 	effective 	in 	attracting 	and
retaining 	consumer 	interest 	in 	the 	advertiser's 	message.
In 	short, 	we 	believe 	that 	advertisements 	containing 	client
endorsements 	or 	information 	about 	past 	successes 	can 	be 	presented
in 	ways 	not 	likely 	to 	create 	unjustified 	expectations. 	We
therefore 	urge 	the 	Court 	to 	disavow 	the 	ABA 	commentary with
respect 	to 	proposed 	Rule 	7.I(b) 	and 	to 	delete 	example 	3.
ProDosed 	R~le 7,1(c): 	COIDDarison 	Advertising
- ,
Proposed 	Rule 	7.I(c) 	provices 	that 	a 	lawyer 	shall 	not
compare 	"the 	lawyer's 	services 	\d th 	other 	lawyers' 	services, 	when
the 	comparison 	cannot 	be 	factually 	substantiated." 	We
believe 	that 	this' rule 	may 	unnecessarily 	inhibit 	competition.
Information 	that 	accurately 	compares 	the 	particular 	qualities 	of
comp~ting law 	firms 	may 	encourage 	improvement 	and 	innovation 	in
the 	oelivery 	of 	services 	and 	assist 	consumers 	in 	making 	rational
purchase 	decisions. 	Of 	course, 	comparisons 	containing 	false 	or
deceptive 	statements 	of 	fact, 	either 	about 	the 	advertiser 	or 	a
co~petitor, 	provide 	no 	benefit 	to 	consumers 	and 	can 	be 	harmful.
However, 	such 	statements 	already 	are 	pro~ibited by 	propose5 	Rule
7.'1(a) .
. 	We 	are 	concerned 	that 	proposed 	Rule 	7.1(c) 	may 	deter 	the 	use
of ,co~parison advertising 	an5 	preclude 	truthful, 	nondeceptive
statements 	merely 	because 	t~ey are 	not 	amenable 	to 	empirical
testing. 11 	Examples 	of 	such 	statements 	are 	"rrier:dlier 	service"
11 	In 	its 	statement 	of 	policy 	resarding 	comparat:ve
advertising, 	the 	Federal 	Trade 	Co~mission recognized 	the 	benefits
of 	comparative 	advertising 	and 	indicated 	concern 	about 	standards
set 	by 	self-resulatory 	bodies 	that 	~ight discourage 	the 	use 	of
such 	advertising:
On 	occasion, 	a 	his~er 	standard 	of
s~bs~a~~ia~ion by 	a~ve~~ise~s usi~g
co~~ara~ive advertising 	has 	been 	re~~ired by
sel:-~egula~ic~ e~~~ties. 	?he 	Co~~issio~
evaluates 	cc~pa=a~:~~e a~ve~~isi~g in 	~te 	sa~e
(cc:-:,,:.:':;·.JE;:5. ... )

Honorable 	Darrell 	V. 	McGraw, 	Jr. 	-- 	Page 	10
or 	"More 	convenient 	hours." 	Even 	though 	such 	statements 	are 	not
readily 	sUbject 	to 	verification, 	they may 	be 	truthful 	and
nondeceptive, 	and 	indicate 	the 	qualities 	that 	the 	advertiser
believes 	are 	important 	to 	consumers. 	Moreover, 	such 	statements
can 	attract 	consumers' 	attention 	to 	the 	advertising 	attorney.
Even 	advertising 	that 	is 	designed 	only 	to 	attract 	attention 	can
inform 	consumers 	of 	a 	lawyer's 	presence 	in 	a 	community, 	which 	in
and 	of 	itself 	is 	useful 	information.
Proposed 	Rule 	7.1 	(c) 's 	requirement 	of 	factual
substantiation 	appears 	to 	be 	broader 	than 	necessary 	to 	prevent
deception. 	The 	Commission 	generally 	requires 	that 	advertisers
have 	a 	"reasonable 	basis" 	for 	any 	objectively 	verifiable 	and
material 	claims 	that 	they 	make, 	beca~se the 	act 	of 	making 	su~h a
claim 	implies 	some 	basis 	for 	it, 	and 	consumers 	v!ould 	be 	deceived
if 	a 	reasonable 	level 	of 	support 	were 	lacking. 12 	However,
"puffery" 	and 	SUbjective 	claims 	do 	not 	similarly 	imply 	that
substantiation 	exists, 	and 	therefore 	may 	be 	employed 	without 	it.
We 	therefore 	urge 	the 	Court 	to 	modify 	proposed 	Rule 	7.1(c)
to 	require 	only 	that 	an 	attorney 	have 	a 	reasonable 	basis 	for 	any
material, 	ob~ective claims, 	and 	that 	such 	claims 	be 	truthful 	and
nondeceptive.
Proo6sed 	R~le 7.2: 	Advertisina
?roDosed 	Rule 	7.2(a): 	?ermissible 	Advertisina 	Media
Attorneys 	may 	interpret 	the 	list 	of 	media 	in 	proposed 	Rule
7.2(a) 	as 	exclusive 	and 	conclude 	that 	advertising 	in 	media 	not
lis~ej is 	p~c~~=~~ed. 	The 	lis~i~g of 	spe=ific 	~edia tta~ ~~y be
used 	in 	advertising 	could 	discourage 	innovation 	in 	ways 	not
ir:tJ':1c.ed 	by 	the 	Court, 	especially 	since 	the 	phrase 	"p~blic media"
is 	a~biguous. 	For 	exa~ple, 	the 	rule 	might 	be 	interpreted 	to
prohibit 	spc~sorship of 	museum 	exhibits 	or 	youth 	sports 	teams.
In 	addition, 	the 	specificity 	of 	the 	rule 	fails 	to 	anticipate
changing 	tectnolo;ies. 	Thus, 	for 	exa~ple, 	the 	rule 	might 	be
21( ... co:1tinuec.)
manner 	as 	it 	evaluates 	all 	other 	advertising
te=~~i~~es . 	[Ijn~e~~~etations 	~~at
i~pose 	a 	higher 	standard 	of 	substantiation
f=~ 	cc~pa~a~ive clai~s t~a~ for 	unila~eral
clairs 	a~e 	i~app~cp~:a~e a~d 	sha~ld be
15 	C.:.? 	:''';.2.5(c) (2) 	(2.925).
~2 	See 	:r:-C 	?olic:y 	S-:='-:=:7:e:-:~ ?e:;=.:::-c.:'~g ~.::·\.;e:---:.:'si:-:-;
S\.:~s~2:::'ia~iQ!"l, 184 	?7'.C. 	839 	(2.S2!:).

Honorable 	Darrell 	V. 	McGraw, 	Jr. 	-- 	Page 	11
interpreted 	to 	exclude 	advertising 	in 	computer 	bulletin 	boards,
on-line 	directories, 	or 	similar media 	that 	may 	become
increasingly 	important 	as 	electronic 	communication 	becomes 	more
common. 	Therefore, 	we 	recommend 	that 	the 	Court 	delete 	proposed
Rule 	7.2(a).
Proposed 	Rule 	7.2(c): 	Lawyer 	Referral 	Services
Proposed 	Rule 	7.2(c) 	appears 	to 	preclude 	the 	use 	of 	for-
profit 	lawyer 	referral 	services 	or 	other 	legal 	service
organizations. 	Such 	organizations 	enable 	lawyers 	to 	pool 	their
advertising 	resources 	while 	maintaining 	independent 	practices.
Consumers 	in 	need 	of 	legal 	advice 	on 	a 	particular 	sUbject 	may
benefit 	from 	the 	knowledge 	such 	services 	possess 	abo~t the
particular 	expertise 	of 	each 	me~~er attorney. 	A 	for-profit
referral 	service 	may 	be 	a~le to 	provide 	more 	useful 	information
to 	con~umers than 	a 	nonprofit 	bar 	association 	referral 	service,
which 	may 	be 	o~liged to 	give 	referrals 	on 	an 	equal 	basis 	to 	all
attorneys.
Proposed 	Ru~e 7.2(c) 	also 	appears 	to 	prohibit 	the 	payment 	of
fees 	to 	lawyers 	who 	refer 	prospective 	clients 	to 	other 	lawyers.
As 	we 	mentioned 	in 	our 	discussion 	of 	proposed 	Rule 	1.5(e), 	such 	a
pro~ibition 	could 	have 	substantial 	antico~petitive effects. 	For
theie 	reasons, 	we 	urge 	the 	Court 	to 	delete 	the 	requirements 	in
proposed 	Rule 	7.2(c) 	that 	lawyers 	not 	pay 	referral 	fees 	to 	other
lawyers, 	and 	that 	lawyer 	referral 	services 	and 	similar 	legal
service 	organizations 	~e not-for-profit.
Pronosed 	Rule 	7.3: 	Direct 	Contact 	Kith 	?rosnective 	Clients
Proposed 	Rule 	7.3 	would 	generally 	pro~ibit all 	forres 	of
di~ect client 	solicitation 13 	because, 	according 	to 	the 	Comment 	to
the 	p:::oposed 	rule, 	there 	is 	a 	"potential 	for 	abuse 	inherent 	in
direct 	solicitation.". 	We 	believe 	that 	solicitation 	can 	provide
consumers 	with 	helpful 	information 	about 	the 	nature 	and
availability 	of 	legal 	services, 	and 	that 	any 	potential 	a~uses can
~e 	effectively 	prevented 	through 	more 	li~ited and 	specific
regulatory 	provisions. 	We 	urge 	the 	Court, 	therefo:::e, 	to 	delete
proposed 	Rule 	7.3 	and 	its 	acco~panying co~~ent and 	to 	actcnt 	more
limited 	restrictions 	on 	solicitation.
'~ritten communications 	from 	lawye:::s 	may 	provide 	useful
information 	to 	prospec~ive clients. 	?cr 	exa~ple, 	by 	targe~ing
13 	~~e p~oposed ~~le ~o~~d ~8~ 	c~ply to 	the 	solici~a~:o~ c:
farn 	ly 	me~~ers or 	fo~:er clients, 	or 	w~ere pec~niary gain 	was 	n~~
~-'~~ca-- ---;\'e 	&~~ ~~c 	s~~:c~---~~-	a 	S 	-=';.11__ 	.. 4_ 	J.u'-" .... _ 	_ ....... ~ 	1.- .... - 	,-,_ ... 	~'-:::.-_ ...........

Ho~orable 	Darrell 	V. 	McGraw, 	Jr. 	-- 	Page 	12
letters 	to 	a 	particular 	audience, 	the 	lawyer 	can 	provide
information 	to 	those 	consumers 	who 	are 	most 	likely 	to 	need 	legal
services 	and 	to 	benefit 	from 	information 	about 	what 	services 	a~e
available, 	Spencer v. 	Honorable 	Justices 	of 	the 	Supreme 	Court 	of
Pennsylvania, 	579 	F. 	Supp. 	880, 	891 	(E.D. 	Pa. 	1984), 	affld 	mem.,
760 	F.2d 	261 	(3d 	Cir. 	1985), 	and who may 	need 	to 	have 	a 	lawyer
take 	action 	expeditiously 	on 	their 	behalf. 	As 	the 	court 	stated
in 	Koffler 	v. 	Joint 	Bar 	Association, 	51 	N.Y.2d 	140, 	146, 	~12
N.E.2d 	927, 	931, 	432 	N.Y.S.2d 	872, 	875-76 	(1980), 	cert. 	denied,
450 	U.S. 	1026 	(1981):
To 	outlaw 	the 	use 	of 	letters. 	. 	addressed
to 	those 	most 	likely 	to 	be 	in 	need 	of 	legal
services. 	. 	ignores 	the 	strong 	societal
and 	individual 	interest 	in 	the 	free
disseffiination 	of 	truthful 	price 	information
as 	a 	means 	of 	assuring 	infcrmed 	and 	reliable
decision 	making 	in 	our 	free 	enterprise 	system
The 	Seventh 	Circuit 	reasoned 	similarly 	in 	Adams 	v. 	Attc~nev
Reoistration 	and 	Disciplinary 	Commission, 	801 	F.2d 	968, 	973 	(7th
Cir. 	1986), 	that 	"[p)rohibiting 	direct 	mailings 	to 	those 	who
might 	most 	desire 	and 	might 	most 	benefit 	from 	an 	attorney's
services 	runs 	afoul 	of 	the 	concerns 	for 	an 	informed 	citize~ry
that 	lay 	at 	the 	heart 	of 	Ba.tes." 	Hithout 	truthful 	information,
consumers 	are 	nQt 	able 	to 	select 	the 	quality 	and 	price 	of 	legal
services 	that 	best 	suit 	their 	needs.
Lawyers 	may 	be 	able 	to 	co~~unicate ~ith prospective 	clients
more 	efficien~ly by 	using 	targeted 	mailinqs 	and 	telegrarr.s 	than 	by
using 	other 	for~s of 	advertising. 	Targeted 	mailing 	and 	telegrams
may'be 	costly. 	3ecause 	they 	are 	sent 	to 	consumers 	who 	have 	the
greatest 	need 	for 	legal 	services, 	however, 	they 	are 	likely 	to
have 	a 	higher 	response 	rate 	~han other 	forms 	of 	acvertising.
Ccnsumers 	who 	choose 	to 	respond 	to 	such 	written 	communications
incur 	lower 	search 	costs 	because 	they 	need 	not 	contact 	numerous
lawyers 	to 	find 	one 	able 	to 	handle 	a 	legal 	problem.
Targeted 	mail 	a~d telegraph 	advertising, 	as 	long 	as 	it 	is
truthful 	and 	nondeceptive, 	poses 	little 	danger 	of 	consumer 	harm.
Although 	it 	is 	not 	impossible, 	it 	is 	unlikely 	that 	written
communications 	will 	be 	intrusive 	or 	coercive, 	or 	involve
inti~idation cr 	duress. 	In 	re 	Von 	Wieoen, 	63 	N.Y.2d 	163, 	170,
1,70 	N.::::.2d 	830, 	541, 	481 	lLY.S.2d 	40, 	43 	(192.;), 	cert. 	den':'ed 	sub
~c~. 	C=~~~~~QO C~ 	P~~foss~o~al S~~~ja~ds v. 	V8~ ~ie~e~, 	105
-~- ~ 	~ - " - 	( " c ==.). 	';< '"' : : l c ~ 	=. -. 	" 	v 	2"':; 	a - 	l' C 	L , 2 	>.T 	- 	2 c' 	- - 	:; " 3	::::. 	;",..":.. 	t:-/1....:1. 	_-'_-' 	, 	•. '-" 	, 	-'~ l' __ • 	'-...l 	..... _--:""1 	._ 	l".__ 	c"_..-'-,, 	,
'32 	];.Y.S.2d 	2~ 	577-73. 	h 	le~~e~ 	c= 	a 	te 	e~=~~ ~rc~ a~ 	a~~~~~e~?
-;:c-~-- le~al 	se~vi=es re~_~:~es ~o 	i~~e~ a~e 	=es-_~8~se. 	~~e	-----_ .... -;:, 	-

Honorable 	Darrell 	V. 	McGraw, 	Jr. 	-- 	Page 	13
consumer 	can 	give 	the 	communication 	careful 	consideration 	and
make 	a 	reasoned 	decision 	about 	selecting 	a 	lawyer.
In-person 	contact 	may 	also 	provide 	consumers 	with 	truthful,
nondeceptive 	information 	that 	will 	help 	them 	select 	a 	lawyer. 	As
the 	Supreme 	Court 	stated 	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
legal 	services 	and, 	in 	this 	respect, 	serve 	much 	the 	same 	function
as 	advertising.
We 	recognize 	that 	abuses 	may 	result 	from 	in-person
solicitation 	by 	la~~ers. 	Injured 	or 	emotionally 	distressed
people 	may 	be 	vulnerable 	to 	the 	exe~cise of 	undue 	influence 	when
face 	to 	face 	with 	a 	lawyer, 	as 	the 	Supreme 	Court 	reasoned 	in
Ohralik~ 	436 	U.S. 	at 	465. 	We 	do 	not 	believe, 	however, 	that 	this
justifies 	a 	broad 	prohibition 	on 	all 	in-person 	solicitation. 	The
Federal 	Trade 	Commission 	considered 	the 	concerns 	that 	underlie
the 	Ohralik 	opinion 	when 	it 	decided 	American 	Medical 	Associatio~,
94 	F.T.C. 	701 	(1979), 	affld, 	638 	F.2d 	443 	(2d 	Cir. 	1980), 	affld
memo 	by 	an 	eaually 	divided 	Court, 	455 	U.S. 	676 	(1982). 	After
weighing 	the 	possible 	harms 	and 	benefits 	to 	consumers, 	the 	FTC
ordered 	the 	~y~ to 	cease 	and 	desist 	from 	banning 	solicitation,
but 	permitted 	it 	to 	proscribe 	uninvited, 	in-person 	solicitation
of 	persons 	vlho, 	because 	of 	their 	particular 	circumstances, 	are
vulnerable 	to 	undue 	influence.
In-pe~son solicitation 	by 	lawyers 	in 	~any instances 	does 	not
involve 	coe~cion or 	the 	exercise 	of 	undue 	influence. 	Lawyers
often 	encounter 	p~ospective clients 	at 	meetings 	of 	political 	and
b~sine5s c~ga~izations and 	at 	social 	even~s. 	Indeed, 	many
la~ye~s traditionally 	have 	built 	their 	law 	practices 	through 	such
cory~acts. 	e~der such 	circurr.sta~ces, the 	possibility 	of 	abuse
seems 	minuscule. 	Simila~lYI 	lawye~s present 	speeches 	and
seminars 	to 	prospective 	clients 	that 	establish 	goodwill 	and 	help
attendees 	to 	understand 	the 	law 	and 	identify 	situations 	in 	which
they 	rnigh~ need 	a 	lawye~. 	Such 	perso~al contacts 	p~esent little
risk 	of 	undue 	influe~ce, b~t do 	provide 	the 	benefit 	of 	enabling
p~o5pective clients 	to 	assess 	the 	pe~sonal qualities 	of
atto~neys. 	Since 	lay 	pe~sons migtt 	fi~d agg~essive solicitatio~
to 	be 	offensive, 	lawye~s have 	an 	incentive 	not 	to 	engage 	in 	such
solici-ta-:'ion.
Telep~one solicitation 	sirnila~ly ca~ 	convey 	useful
info~~ation to 	consurr.e~s, and 	it 	may 	p~esent even 	less 	ris~ cf
ct~se ~~a~ 6~es 	~~-~e~so~ S8::~:~2~i~~. 	~~ ~~S~ 	c~~~~~s~a~~esf
- 	"': 	~"""'.-., p 	c:-,.;r-.:._;::l 	: ........ ~ 	a,.-.,........,.:::.~-- ,·-.,~·~ .. :;;.''-T 	~.-.. ""-e-'''':-- 	~"'""I cr--..,....,·c:,··-.=.-	l",..e~e~ ... ,-, 	__ .... __ ....... ....;.. __ 	v .... 	::'::'---~ ... -. .... __ .... --.J 	.-...,1 	.... 	::> ..... _ .."- 	_.o,l 	_ •• -::.---
~a~~. 	Co~s~~e~s a~e 	a==~s~=~e= ~~ 	~ele~~o~e ~~~~:e~:~g. 	-~£~.
~eceive ca~~s 	f~o~ pe~so~s o::e~in~ t~e 	s~~e 0: 	v~~io~s ;:~~S 2~j

Honorable 	Darrell 	V. 	McGraw, 	Jr. 	-- 	Page 	14
services, 	conducting 	surveys 	about 	products 	and 	services, 	seeking
contributions 	to 	charities, 	and 	re~Jesting support 	for 	political
candidates. 	Consumers 	can 	easily 	terminate 	offers 	of 	legal
services 	communicated 	by 	telephone.
Thus, 	we 	oppose 	the 	proposed 	ban 	on 	sOlicitation. 	We 	would
not 	oppose 	more 	limited 	regulation 	directed 	at 	actual 	abuses.
For 	example, 	we 	believe 	it would 	be 	approfriate 	for 	the 	Court 	to
prohibit 	false 	or 	deceptive 	solicitation 1 	and 	sOlicitation
directed 	to 	any 	person who 	has 	made 	it 	known 	that 	he 	or 	she 	does
not 	wish 	to 	receive 	communications 	from 	the 	lawyer.
In 	addition, 	the 	Court 	may 	wish 	to 	prohibit 	solicitation
involving, 	in 	the 	language 	of 	the 	comment 	to 	proposed 	Rule 	7.3,
"undue 	influence, 	intimidation, 	[or) 	overreacting." 	If 	the 	Court
concludes 	that 	such 	a 	prohibiti9n 	is 	necessary, 	we 	urge 	that 	its
ter~s be 	interpreted 	narrOWly. 	Some 	licensing 	boards 	and 	private
associations 	in 	other 	professions 	have 	interpreted 	these 	or
si~ilar terms 	broadly 	and 	have 	applied 	them 	to 	ban 	solicitation
under 	circumstances 	that 	pose 	no 	danger 	of 	abuse. 	59 	long 	as
these 	terms 	are 	iDterpreted 	fairly 	and 	objectively,l~ such 	a
provision 	would 	adequately 	protect 	consumers 	and 	simultaneously
allow 	them 	to 	receive 	helpful 	information 	about 	legal 	services.
ProDosed 	?-ule 	7.4: 	co~~ur.ication of 	Field 	of 	Practice
Proposed 	Rule 	7.4 	and 	its 	accompanying 	co~ment would
""'''-o''''P'''~''' 	e 	"se 	0& 	t .... e 	"e""'- 	"s""'e-~-lJ.'s"" J.'n 	'Mak'~-g 	.. .,...u 	'h&",	.t-'" - 	.L ... _ "'-' ~ ~ 	.l. 	It,,.o. 	-..l.J. 	'- 	_ ,Hl 	:-' 	....... ~ c:. 	__ 	",d.;.." J 	_ _ 	u_
clai~s t~at an 	attorney 	has 	developed 	skills 	or 	focused 	his 	or
her 	practice 	on 	a 	specific 	area 	of 	the 	law. 	The 	use 	of 	this
term, 	ho~ever, may 	be 	the 	clearest, 	most 	efficient 	~ay to
com~unicate such 	infor~ation. 	Ke 	are 	una~are of 	any 	evidence
suppor-::ing 	the 	cOr<,IT:ent' S 	conclusion 	"cha:: 	-::he 	term 	"specialist"
"has 	2.=~~i~e=. a 	seco:-Jdary 	rr[e=.ni~g it1ply:"~S :c:-rr4aJ.. 	re::og:;,i tion 	2.S
a 	specialist. 	. 	in 	accordance 	with 	procedures 	in 	the 	state
14 	Proposed 	Rule 	7.1 	already 	prohibits 	false 	or 	deceptive
CO;'i~~unic2.-:'io~s.
, -~~ 	Different 	kinds 	of 	solicitation 	may 	present 	differen::
risks 	cf 	abuse, 	so 	the 	proper 	interpretation 	of 	these 	terms 	Eay
depend 	on 	whether 	the 	solicitation 	at 	iss~e ir.volves 	mail,
-~le~~--~ 	o~ 	~- 	~e--~n co----- 	'- 	n--~d 	-~-v- 	~y~·~e-	\.._ 	:--_'':'';_', 	- 	-'..:-. 	_::>"". 	,;_c,-."... 	r.::>.' '-' .. _ 	c.-:::"" 	e, 	:......... 	.
co~~un:ca~:cn 	see~s 	to 	presen:: 	less 	c~~ger 0: 	coerClO~ or 	~n~~e
:~:~~e~2e ~~~~ ~elep~~~e C~ 	~~-pe~s~~ s~lici~=~:~~. 	:e:e~~~~e
s~:i=:~a~ C~ ~=Y 	2:S~ ~~ese~~ less 	~=~e~~ial :c~ a~~se ~~=~
pe=sc~ S2 	~~:~2~:=~ be=a~se ~e:E;~c~e cG~ls 	c~e 	easie= 	~~
~e~~l~~~e ~ja~ 	f2=~-to-~ace C~~\~s~sa~~o~s.

, .
Honorable 	Darrell 	V. 	McGraw, 	Jr. 	-- 	Page 	15
where 	the 	lawyer 	is 	licensed 	to 	practice." 	Because West 	Virginia
has 	no 	formal 	program 	for 	the 	certification 	of 	"specialists," 	it
seems 	unlikely 	that 	the 	claim 	that 	one 	is 	a 	specialist will 	be
interpreted 	by 	lay 	persons 	as 	implying 	that 	a 	lawyer 	has 	obtained
formal 	recognition 	or 	certification 	as 	a 	specialist 	from 	the
state.
The 	proposed 	rule 	also 	prohibits 	an 	attorney 	from 	merely
implying 	that 	he 	or 	she 	is 	a 	specialist. 	This 	part 	of 	the 	rule
could 	be 	interpreted 	to 	prohibit 	a 	wide 	variety 	of 	truthful
statements 	about 	experience 	and 	special 	training. 	For 	example, 	a
true 	statement 	that 	an 	attorney 	is 	a 	member 	of 	an 	organization 	of
trial 	lawyers 	might 	be 	interpreted 	by 	some 	as 	an 	implied 	claim 	of
specialization, 	yet 	such 	a 	statement 	can 	benefit 	consumers 	by
informing 	them 	that 	the 	attorney 	has 	sufficient 	interest 	in 	trial
advoca~y to 	join 	the 	organization 	and 	has 	access 	to 	the
organi2ation's 	training 	and 	materials. 	There 	are 	many 	ways 	to
obtain 	expertise, 	and 	informa,tionthat 	an 	attcrney 	has 	special
experience 	or 	skills 	in 	a 	particular 	field 	is 	clearly 	useful 	to
consumers 	needing 	help 	in 	that 	field. 	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 	procedure 	that 	the 	surgeon 	performs 	will 	be 	a 	success.
Ive 	recommend 	that 	the 	Court 	remove 	all 	prohibitions 	against
truthful, 	nondeceptive 	claims, 	express 	or 	implied, 	that 	a 	lawyer
is 	a 	specialist.
Conclusion
~hile the 	proposed 	Rules 	of 	Professional 	Conduct 	of 	the 	West
Virginia 	State 	Bar 	would 	benefit 	consumers 	by 	relaxing 	certain
exi~ting restrictions, 	they 	nonetheless 	may 	injure 	consumers 	by
imposing 	unnecessary 	restrictions 	on 	price 	competition, 	referrals
and 	associations, 	potentially 	more 	efficient 	forms 	of 	practice,
and 	dissemination 	cf 	information 	about 	legal 	services. 	We 	urge
that 	the 	Court 	eliminate 	unnecessary 	restrictions 	on 	competition
among 	attorneys 	by: 	(1) 	clarifying 	in 	the 	comme71tary 	to 	proposed
Rule 	1.5(a) (3) 	~ha~ ci.ly 	fees 	that 	are 	so 	high 	as 	to 	suggest 	a
breach 	of 	the 	fiduciary 	duty 	to 	the 	clie71t 	~:ould be 	unreaso71able;
(2) 	deleting 	proposed 	Rule 	1.5(e) (1) 	in 	order 	not 	to 	discourage
attorney 	referrals 	and 	associations 	of 	attcrneys 	in 	different
firms 	for 	partiCUlar 	cases; 	(3) 	eliminating 	the 	restrictions 	in
proposed 	R~le 5.4 	cn 	practice 	~ith no~lawyers; 	(4) 	modifying
-.-- ..... """'''-0-'1 	";)"le 	7 	1 	"0 	rr;:.'"e 	~le-"" 	a 	" .. ..,.:,,1 	no""''''ece'-'-';''e	:--._,-,~ ....... ;:;,_"-,, 	."....... 	_.. 	- 	: ...... J\. 	'-~ 	c._ 	.1..i 	'-- ..... \",. ....... 7- 1 	~ ........ 	::-,~~v_
e~~8=se~e~~s a~~ 	s~ccess a~~ €Xpe~le~ce cla~~s a~e per~~~~e~, c~~
~o 	re~~ire only 	~ha~ an 	at~orney have 	a 	reasonable 	basis 	fer 	a~y
rr;aterial, 	objec~ive clair.;s; 	(5) 	dele~i;:g proposed 	Ru:e 	7.2(a),
a~j Dodi~~~i~g p~o?~sej ~ule 7.2(c) 	to 	allo~ ~~e pa~·~e~t o~

Honorable 	Darrell 	V. 	McGraw, 	Jr. 	-- 	Page 	16
referral 	fees 	to 	attorneys 	and 	the 	use 	of 	for-profit 	referral
services; 	(6) 	deleting 	proposed 	Rule 	7.3 	and 	adopting 	instead
more 	limited 	restrictions 	on 	solicitation; 	and 	(7) 	altering
proposed 	Rule 	7.4 	to 	allow 	express 	and 	implied 	claims 	of
specialty.
We 	hope 	that 	this 	letter will 	be 	of 	assistance 	in 	pointing
out ways 	in 	which 	particular 	rules 	may 	restrict 	competition 	and
injure 	consumers, 	and 	we 	appreciate 	having 	had 	the 	opportunity 	to
present 	these 	views.
Respectfully 	submitted,
CWlzS;zDire:::tor