FTC Staff Comment Before the Ohio State Bar Association Concerning Attorney Advertising

V890094
UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
CLEVELAND REGIONAL OFFICE
Suite 520-A
Atrium Office Plaza
668 Euclid Avenue
Cleveland, Ohio 44114
(216) 522·4210
Telecopier: 522-7239
November 3, 1989
Albert Bell, Esq.
General Counsel
Ohio State Bar Association
33 West Eleventh Avenue
Columbus, Ohio 	43201
Dear Mr. Bell:
COMMISSION AUTHORiZE;;
The staff of the Federal Trade Commission is pleased 	to respond 	to your
request for comments on the proposed amendments to the Ohio Code of Professional
Responsibility.l 	These 	amendments 	would 	generally 	establish 	more 	restrictive
standards than now exist for attorney advertising and solicitation. 	'We believe that
several of these proposals may restrict the flow of valuable information to consumers
and on balance, may have the potential to impede competition or increase costs
without providing countervailing benefits to consumers.
THE INTEREST AND EXPERIENCE OF THE FEDERAL TRADE COMMISSION.
Congress has empowered the Federal Trade Commission to prevent unfair
methods of competition and unfair or deceptive acts or practices in or affecting
commerce? 	Pursuant 	to 	this 	statutory 	mandate, 	the 	Commission 	and 	its 	staff
1 	These comments are the views of the staff of the Cleveland Regional Office
and the Bureau of Competition of the Federal Trade Commission. 	They are not
necessarily the views of the Commission or of any individual Commissioner.
2 	15 USc. § 45 (1982).

Albert Bell. Esq., General Counsel
Ohio State Bar Association
Page 2
encourage competition among 	members of licensed 	professions to 	the 	maXImum
extent compatible with other legitimate goals?
For several 	years 	the Commission and 	its staff. through 	law enforcement
proceedings and in studies, have been evaluating the competitive effects of public and
private 	restrictions 	on 	the 	business 	practices 	of 	lawyers, 	dentists, 	optometrists,
physicians, and other state-licensed professionals. 	Our goal 	has been 	to identify
restrictions 	that 	impede 	competition 	or 	increase 	costs 	without 	providing
countervailing benefits to consumers. 4 As part of this effort the Commission has
examined 	the 	effects 	of 	public 	and 	private 	restrictions 	limiting 	the 	ability 	of
professionals to contact prospective clients and to advertise truthfully.5
Advertising informs consumers of options available in the marketplace, and
encourages competition among firms seekiag to meet consumer needs. 6 Advertising
3 	The 	Commission's 	staff 	has 	previously 	submitted 	comments 	to 	state
governments 	and 	professional 	associations 	on 	the 	regulation 	of 	professional
advertising, particularly advertising by attorneys. 	See, e.g., Comments of the Federal
Trade Commission Staff on the Florida Rules of Professional Conduct (July 17,1989);
Comments of the Federal Trade Commission Staff on the American Bar Association
Model Rules of Professional Conduct (Nov. 22.1988); Comments of the Federal Trade
Commission staff on the Rules of Professional Conduct of the New Jersey Supreme
Court, submitted 	to 	the Committee on Attorney 	Advertising of the 	New Jersey
Supreme Court (Nov. 9, 1987); Comments of the Federal Trade Commission Staff on
the Code of Professional Responsibility of the Alabama State Bar, submitted to the
Supreme Court of Alabama (March 31, 1987).
4 	See, e.g .• Cleveland Regional Office and Bureau of Economics, FTC, Improving
Consumer Ac,ess to Legal Services: The Case for Removing Restrictions on Truthful Advertising
(1984).
5 	See, e.g., American Medical Association. 94 F.T.c. 701 (1979), affd. 638 F.2d 443
(2d Cir. 1980), affd memo by an equally divided Court, 445 U.S. 676 (1982).
6 	In several cases, the Supreme Court has held that restrictions on advertising
and 	solicitation 	violate 	the 	Constitution. 	See, 	e.g., 	Shapero v. 	Kentucky 	Bar
Association, 108 S. Ct. 1916 (1988) (non-deceptive targeted mail solicitation is protected
by the First Amendment); Zauderer V. Office of Disciplinary Counsel of the Supreme
Court of Ohio, 471 U.S. 626 (1985) (an attorney may not be disciplined for seeking legal
business 	through 	printed 	advertising 	containing 	truthful 	and 	non-deceptive
information and advice regarding the legal rights of potential clients or for using
non-deceptive illustrations or pictures); Bates v. State Bar of Arizona, 433 U.S. 350
(1977) (a state cannot, consistent 	with 	the 	First 	Amendment, absolutely 	prohibit
(continued_)

Albert Bell, Esq., General Counsel
Ohio State Bar Association
Page 3
may be especially valuabl.e for persons first entering a profession, because it enables
them to become known to potential clients and develop business more quickly than
they otherwise might. 	Studies indicate that prices for professional services tend to
be 	lower 	where 	advertising 	exists 	than 	where 	it 	is 	restricted 	or 	prohibited. 7
Empirical evidence also indicates that while restrictions on professional advertising
tend to raise prices, they do not generally increase the quality of available goods and
services.8 	The effects of advertising on price and quality have been found to occur
in the provision of legal services as well as in the provision of other professional
services. 9
This is not to say that advertising is invariably benign. 	It may sometimes be
unfair or deceptive, or may violate other legitimate goals of public policy. 	We
believe, however, that truthful advertising is generally beneficial. 	Therefore, you
may wish to recommend that the Supreme Court of Ohio impose only restrictions Of'
advertising that are narrowly tailored to prevent unfair or deceptive acts or practices,
or to accomplish some other significant objective.
The remaining sections of the letter will apply these general principles to the
specific amendments proposed.
6(_continued)
attorney 	advertising); 	Virginia 	State 	Board 	of 	Pharmacy v. 	Virginia 	Citizens
Consumer Council, 425 U.S. 748 (1976) (a state cannot prohibit price advertising by
pharmacies).
7 	Bond, 	Kwoka, 	Phelan & 	Whitten, 	Effects of Restrictions on 	Advertising and
Commercial Practice in the Professions: The Case of Optometry (1980); Benham & Benham,
Regulating Through the Professions: 	A Perspective on Information Control, 18 J. L. & Econ.
421 (1975); Benham, The Effects of Advertising on the Price of Eyeglasses, 15 J. L. & Econ.
337 (1972).
8 	Bond, supra note 7, at 3. 	See also Benham, Licensure and Competition in
Medical Markets, draft AEI conference paper (1989); Cady, Restricted Advertising and
Competition: 	The Case of Retail Drugs (1976).
9 	See Calvani, Langenfeld & Shuford, Attorney Advertising and Competition at the
Bar, 41 Vand. L. Rev. 761 (1988); Schroeter, Smith & Cox, Advertising and Competition in
Routine Legal Service Markets: 	An Empirical Investigation, 35 1. Indus. Econ. 49 (1987);
Consumer Access to Legal Services, supra note 4; Muris & McChesney, Advertising and the
Price and Quality of Legal Services: 	The Case for 	Legal Clinics, 1979 Am. B. 	Found.
Research 1. 179 (1979).

Albert Bell, Esq., General Counsel
Ohio State Bar Association
Restrictions on Advertising Content: 	DR 2-10HA)(l), (3)-(6).
Page 4
The 	proposed 	rules 	would 	prohibit 	"self-laudatory" 	statements, 	claims
concerning "the quality of 	the 	lawyer's 	legal 	services," emotional 	appeals, client
testimonials, 	any 	claims 	that 	are 	not 	verifiable, 	and 	certain 	kinds 	of 	fee
advertisements. These provisions are similar in that they limit what lawyers can say,
particularly about the quality of their legal services. 	Each of these provisions may
prohibit truthful claims and therefore appears overbroad.
A. 	Representations of Quality and Self-Laudation.
Statements describing the quality of a lawyer's services can convey 	useful
information and may be valued by consumers. 	Moreover, most advertisements are
self-laudatory to some extent. 	The proposed rules could have the effect of banning
virtually all specific claims about the quality of an attorney's work, the convenience
of business hours or billing arrangements, and similar matters. 	A ban on quality and
self-laudatory statements could harm consumers in two ways. 	First, the ban could
make it more difficult for consumers to find lawyers who are suited to their needs.
Second, it could lessen the beneficial rivalry among competing lawyers. 	When a
lawyer cannot truthfully call attention to the desirable aspects of his or her practice,
the incentive 	to improve or 	to offer different services or 	prices is 	likely 	to 	be
reduced.
We recognize that these rules may be intended to prohibit only a narrow class
of overstated and potentially misleading claims. The proposed rules, however, do not
seem sufficiently precise to ensure that they will apply only to those cases. 	As a
result, the potential breadth of the restrictions may deter lawyers from engaging in
activities that are not intended to be prohibited. The Association may therefore wish
to 	recommend 	provisions 	that 	prohibit 	only 	quality 	claims 	or 	self-laudatory
statements that are likely to mislead consumers. Alternatively, the Association might
consider deleting these provisions entirely, allowing such claims to be covered by the
prohibition in the same section against any "false, fraudulent, misleading, deceptive,
or unfair" statement.
B. 	Emotional Appeals.
It is difficult to determine what is covered under this provision. 	Advertising
often appeals to 	the emotions and 	anxieties of some 	persons. 	For 	example, an

Albert Bell, Esq., General Counsel
Ohio State Bar Associaticll
Page 5
admonition 	to seek 	the advice 	of counsel 	for 	work-related accidents might 	well
appeal 	to 	the 	emotions 	of 	one 	recen::y 	injured 	on 	the 	job. 	Yet, 	this 	type 	of
advertisement may encourage such an individual to explore his or her rights to legal
redress by consulting an attorney. The Association may therefore wish to clarify this
prOVIsIOn.
C. 	Client Testimonials.
The 	proposed 	amendments 	would 	prohibit 	any 	public 	communication 	of
testimonials of "past or present clients pertaining to the lawyer's capability:'l0 	The
rule would go beyond the existing Ohio Rule (as well as American Bar Associatioil
Model Rule 7.1), which only prohibits testimonials that are false, misleading, or likely
to create an unjustified expectation about the results a lawyer can achieve.
We 	believe 	that 	consumers 	may 	derive 	useful 	information 	from 	an
advertisement 	featuring 	an 	ordinary 	client asserting 	truthfully 	that 	he 	received
satisfactory service from a particular attorney.1l 	Public advertising in which clients
attest that they use a firm's legal services provides the general public the same type
of 	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 an attorney, and who may have significant assets at stake,
believes a particular lawyer to be effective.
Such testimonials are not inherently misleading, and to prohibit them may
impede the flow of valuable information to consumers. 	We therefore believe that
consumers might benefit if the Association were to consider deleting this suggested
rule and recomr:-:ead tllat all testimonials be covered under the general prohibition
in DR 2-101(AXl) against any "false, fraudulent, misleading, [or] deceptive" statement.
Altcrnativclj', the Association may wish to adopt provisions similar to the Federal
Trade Commission's Guides Concerning Use of Endorsements and Testimonials in
10 We recognize that the provision does not prohibit the traditional inclusion of
a list of clients in legal directories.
11 The restrictions on quality and self-laudatory statements may prohibit valuable
testimonials or endorsements by non-clients as well. 	In its Guide Concerning Use of
Endorsements 	and 	Testimonials 	in 	Advertising, 	the 	Federal 	Trade 	Commission
recognizes 	the 	validity 	of 	expert 	a:ld 	celebrity 	endorsements. 	The 	Commission
suggests, however, 	that "[e]ndorsements must 	always 	reflect 	the 	honest 	opinions,
findings, beliefs, or experiences of the endorser." 	16 c.F.R. § 255.1(a) (1989). 	See also
I d. § 255.2 and § 255.5.

Albert Bell, Esq., General Counsel
Ohio St" te Bar Association
Page 6
AdvertisingY 	Essentially, those guides require that testimonials be reflective oE the
honest opinions of the endorser,13 that, absent adequate disclosure to the contrar~, the
endorser's experience be "representative of what consumers generally achieve[,J" 4 and
that paid endorsements be represented as such. 1S
D. 	Non-Verifiable Claims.
The 	proposed 	rules 	would 	also 	preclude 	advertising 	claims 	that 	are 	"not
verifiable." 	Some claims, however, such as "friendlier service" are not capablc of
verification. Such claims can be readily judged by any consumer utilizing the service
and may not present a significant problem. 	Such claims may indicate qualities that
the attorney seeks to emphasize in his or her practice and that may be important to
consumers. 	Moreover, such communications can attract consumers' attention to the
advertising attorney. 	Even communication that is designed only to attract attention
can inform consumers of a lawyer's presence in a community, which is itself useful
information.
Accordingly, the Association may wish to recommend that these restrictions
on advertising content be removed and replaced by requirements that an attorney
have a reasonable basis for any material objective claims, and that such claims be
truthful and non-deceptive.
E. 	Fee Advertisin~.
Proposed Rule 2-101(A)(6) would limit permissible communications relating to
legal 	fees 	and 	may 	essentially 	prohibit 	reduced 	or 	promotional 	prices. 16
"Un res trainee 	subjec~ive characterization 	of 	rates" 	would 	be 	prohibited, 	but
"restrained subjective characterizations of rates" would be allowed.
12 	16 c.F.R. § 255 (1989).
13 	§ 255.1.
14 	§ 255.2.
15 	§ 255.5.
16 	We recognize that proposed rule 2-101(DXl) would permit rate advertising.
Insofar as that provision would also require that rate advertising be dignified, it
would bear many of the same problems as 2-101(AX6). Therefore, our comments here
apply to both provisions.

Albert Bell, Esq., General Counsel
Ohio State Bar Association
Page 7
The rule gives examples of both restrained and unrestrained characterizations
of rates. 	Even with these examples, however, the distinction between "restrained"
and "unrestrained" is so difficult to make that the rule could be used to deter much
advertising that is truthful and beneficial to consumers. 	It is not clear, for instance,
whether "fair-priced" is restrained or unrestrained.
Moreover, even some of the examples of "unrestrained characterizations" would
be useful to consumers. 	A tax attorney might want to offer reduced fees on tax
preparation for a few weeks prior to the busiest tax season; an attorney might want
to offer for a week a "special low price" on preparation of a will. 	A new attorney
might want to announce the opening of his or her practice with "special introductory
fees." 	Under 	Proposed 	Rule 	2-101(AX6), 	attorneys 	would 	not 	be 	permitted 	to
communicate such information to consumers. 	They may be precluded or deterred
from communicating and employing promotional prices, even where such activity
would facilitate efforts to enter the legal market or to introduce new and innovative
serVIces.
We suggest that the Association exercise caution before placing restrictions on
price information. 	Of course, it is well-recognized that communications relating to
fees that are false or misleading should be prohibited because they would 	harm
consumers. 	Proposed 	Rule' 2-101(AX6), 	however, 	precludes 	non-deceptive
communications relating to legal fees.
Specific Admonition Concernin2 Reliance on Advertisin~ 	DR 2-101(A).
The 	proposed 	amendments 	apparently 	would 	require 	all 	public
communications 	(except 	listings 	in 	the 	telephone, 	city, 	or 	legal 	directories) 	to
conclude with the following admonition:
Deciding whether you need to hire a lawyer and choosing
a 	specific 	attorney 	or 	firm 	to 	represent 	you 	are 	very
important decisions which should not be made only on the
basis of advertising or 	a lawyer's own claims 	to 	be an
expert. 	This 	admonition 	is 	required 	by 	the 	Code 	of
Professional 	Responsibility 	for 	lawyers 	adopted 	by 	the
Supreme Court of Ohio. 	[Emphasis in original.]

Albert Bell, Esq., General Counsel
Ohio Statt:: Bar I ...,sociation
Page 8
Any disclosure obligation might tend to increase advertising costs - 	it may
increase the length of the message and it may force advertisers to forego some other
portion of the 	message 	that 	would 	have 	been delivered 	had 	the space 	not 	been
occupied by the disclosure. 	Unnecessary disclosure requirements can thus result in
a decrease in useful information available to consumers. 	If the Association believes
that the kind of disclosure mandated in the proposed rule is warranted 	in some
circumstances, it might consider a rule drawn narrowly to mandate disclosure only
in those situations. 17 Alternatively, the Association might consider eliminating the
proposed disclosure req u iremen t en tirel y.
Prior Approval of Advertisin~ by Court A~encv: DR 2-101(..\).
The proposed amendments would 	require copies of all advertising, 	if, 	any
form, to be filed with and approved by a court agency (or representative) prior to
dissemination. This provision would go beyond the existing Ohio Rule [DR 2-101(D)],
which requires only that radio and television advertisements be recorded and kept
by the advertising attorney, and it would go beyond the ABA Model 	Rule (7.2),
which requires only that a copy and dissemination record of any adverti~",:._'l.:nt h,...
kept by the attorney for two years.
The State of Ohio certainly has a legitimate interest in deterring deceptive or
misleading advertising by attorneys, and a "prior review" mechanism could be used
to further that interest. Prior approval, however, may also result in a restricted flow
of truthful, valuable information to consumers for two reasons. 	First, the reviewing
agency may err and disapprove of advertisements that contain ~J false or misleading
statements. 	Second, even if a lawyer's planned advertising would be approved, that
approval would be uncertain, and the review process is likely to delay dissemination.
Because of the built-in delay in securing approval and the uncertainty of approval,
the rule's effect may be to discourage attorneys from advertising. 	At the very least,
th·.; 	requirement of prior review would raise attorneys' advertising costs, thereby
potentially increasing costs to consumers. 	The ABA has also cautioned against prior
review obligations: 	"A requirement [of prior review] would be burdensome and
expensive relative to its possible benefits, and may be of doubtful constitutionality:'18
For 	these 	reasons, the 	Association 	may 	prefer 	to address 	the 	issue 	of deceptive
advertising by a general prohibition enforced by sanctions for violations. 	Such a
17 For example, advertisements containing express or implied claims that a person
should make an immediate decision to hire an attorney could arguably warrant a
disclosure.
18 Comment, ABA Model Rule 7.2 (as amended, 1989).

Albert Bell, Esq., General Counsel
Ohio State Bar Association
Page 9
response 	is 	less 	likely 	to deter 	useful 	advertising 	while still 	servIng 	to suppress
misleading communications.
Requirement that Broadcast Advertisin2 Be Non-Dramatic: DR 2-101(8)(3).
The 	proposed 	amendments 	would 	require 	all 	broadcast 	advertising 	to 	be
"articulated 	only 	by 	a 	single 	nondramatic 	voice," 	and 	in 	the 	case 	of 	television
advertising, would provide that "no visual display shall be employed other than that
acceptable for print media." 	This proposed rule would severely restrict all broadcast
advertising. 	The rule would prohibit the use of actors. background music. visual
action, dramatic voices and other features cr-mmno to broadcast advertising.
Advertising 	restraints 	of 	this 	sort 	are 	costly 	to 	consumers. 	Graphics.
dramatizations, re-enactments, and similar techniques can help consumers understand
their legal rights and obligations and can identify attorneys who appear responsive
to 	particular 	needs. 	A 	musical 	slogan, 	an 	image 	of 	animated 	characters. 	or 	a
dramatization may, for mstauce, convey an image to which consumers in need of
legal 	assistance 	can 	relate 	and 	may 	thereby 	enhance 	consumer 	retention 	of
information in an advertisement. 	In addition, these techniques can create a unifying
theme 	for 	a 	firm's 	advertising, 	linking 	the firm's 	various advertisements 	in 	the
consumer's 	mind, 	and 	thereby 	increasing 	the 	impact 	of 	the 	advertising. 	The
unavailability 	of 	such 	techniques 	may 	make 	it 	harder 	for 	consumers 	to 	make
informed decisions about hiring legal counsel. and may limit the effectiveness of
advertising designed to reach persons who are uninformed about their legal rights.
We recognize that the rule is intended, at least in part, to maintain the dignity
and professionalism of the legal community. 	However, any danger to consumers that
might result from the prohibited advertising appears to be largely speculative and
might be outweighed by the benefits expected from the dissemination of truthful
information. 19
19 The ABA has also warned against restricting modes of attorney advertising
and the content of advertisements:
Questions 	of 	effectiveness 	and 	taste 	in 	advertising 	are
matters 	of 	speculation 	and 	subjective 	judgement. ...
Television is 	now one of 	the 	most 	powerful 	media 	for
getting information to the public, particularly persons of
low 	and 	moderate 	income; 	prohibiting 	television
advertising, 	therefore, 	would 	impede 	the 	flow 	of
(continued_)

Albert Bell, Esq., General Counsel
Ohio State Bar Association
Page 10
21
For 	these 	reasons, 	the 	Association 	may 	wish 	to 	consider 	reversing 	the
presumptions 	of 	the 	proposed 	rule. 	Rather 	than 	allowing 	only 	non-dramatic
advertising and 	banning all other forms, 	the 	rule 	might instead 	ban only 	those
specific techniques that have been affirmatively shown to be likely to mislead, and
it might presumptively permit all other techniques?O
In-person and Telephone Solicitation: 	DR 2-10HE)(l).
Proposed Rule 2-101(EXl) would prohibit virtually all forms of in-person and
telephone solicitation by attorneys?1 	While we recognize the Association's concerns
that direct solicitation might lead to abuse. we believe that solicitation can provide
consumers 	with 	helpful 	information 	abolJt 	the 	nature 	and 	availability 	of 	legal
services, and that any potential for abuse can effectively be prevented through more
limited and specific regulatory provisions.
This provision appears to us to have both desirable and undesirable features.
On the one hand, we recognize that the conduct that would be banned has certain
negative effects. 	Injured or emotionally distressed people may be vulnerable to the
exercise of undue 	influence when 	face-to-face 	with a 	lawyer. 	For instance, 	the
Supreme Court in Ohralik v. Ohio State Bar Association,22 held that states may prohibit
in-person solicitation. That case, however, involved particularly egregious conduct -
in-person solicitation of an accident victim still hospitalized. 	The state does have
an interest in monitoring solicitation in order to deter that type of abuse. 	In-person
19(_continued)
information about legal services to many sectors of the
public. 	Limiting the information that may be advertised
has a similar effect and assumes that the bar can accurately
forecast 	the 	kind of information 	that 	the 	public would
regard as relevant.
Comment, ABA Model Rule 7.2 (as amended, 1989).
20 	This 	presumption 	would 	remain 	rebuttable, 	however. 	Any 	advertising
technique could still be banned on an appropriate showing of likely consumer harm.
Although "telephone solicitation" is 	not specifically mentioned, it 	would
appear to be covered by the ban on "in-person" solicitation.
22 436 U.S. 447 (1978).

Albert Bell, Esq., General Counsel
Ohio State Bar Association
Page 11
solicitation is especially difficult to monitor, and so the state might elect to prohibit
this form of solicitation entirely.23
On the other hand, in-person solicitation by lawyers in many instances does
not involve coercion or the exertion of undue influence. 	The Supreme Court in
Ohralik 	noted 	in dicta 	that 	in-person contacts can 	convey 	information 	about 	the
availability and terms of a lawyer's lelal services and, in this respect, may serve
much the same function as advertising. 2 Many lawyers traditionally have built their
law practices through such contacts. 	Under such circumstances, the possibility of
abuse is reduced. 	Such personal contacts present little risk of undue influence, but
do provide the benefit of enabling prospective clients to assess the personal qualities
of attorneys.
The 	Federal Trade Commission considered 	the concerns 	that 	underlie 	the
Ohralik opinion when it decided American Medical Association. 25 After weighing the
possible harms and benefits to consumers, the FTC ordered the AMA to cease and
desist from banning all solicitation, but permitted it to proscribe uninvited, in-person
solicitation of persons who, because of their particular circumstances, are vulnerable
to undue influence. 	Similarly, the Association may wish to consider whether the
danger 	for 	abuse 	warrants 	proscribing 	all 	in-person 	solicitation 	and 	thereby
sacrificing the potential consumer benefits that temperate solicitation may provide.
Telephone solicitation can also provide useful information, and it may preSent
less risk of harm to consumers than does in-person, face-to-face solicitation. 	We
recognize, 	of 	course, 	that 	telephone 	sales 	can 	be 	used 	to 	injure 	consumers.
Consequently, we 	would 	not 	oppose a 	prohibition on 	false, 	unfair or 	deceptive
telephone solicitation. 	However, the use of the telephone to sell goods and services
has become relatively common in contemporary society. 	It is not clear to us that
telephone solicitation by lawyers is necessarily likely to harm consumers.
Thus, we believe that the proposed ban on solicitation may injure consumers,
though we do not believe that more limited restrictions on solicitation directed at
actual abuse would have this effect. 	For example, the Association may 	wish 	to
23 Cf Ohralik, 436 	U.S. at 	466 (Due 	to 	frequent 	lack 	of 	witnesses, "in-person
solicitation would be virtually immune from effective oversight and regulation from
the State.")
24 	436 U.S. at 457.
25 94 F.T.c. 701 (1979), afld, 536 F.2d 443 (2d Cir. 1980), afld //lent. b}' an equally
divided court, 455 U.S. 676 (1982).

Albert Bell, Esq., General Counsel
Ohio State Bar Association
Page 12
recommend a rule 	that prohibits false or deceptive solicitation 26 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 Association may wish to
propose a rule that prohibits solicitation involving, in the language of the comment
to Proposed Rule 2-101(AXl), "undue influence, intimidation, [or] overreaching."27 	So
long as these terms are interpreted fairly and objectively - 	and not applied to ban
solicitations that 	pose 	no danger of abuse - 	such 	a 	provision 	would 	adequately
protect consumers and simultaneously allow them to receive helpful information
about legal services.
CONCLUSION.
We suggest that you consider modifying the rules to permit a wider range of
truthful communications and 	to 	ban only 	those 	that are 	likely 	to 	be 	unfair or
deceptive or otherwise violate significant state objectives in a way that threatens or
causes net injury to consumers. 	As part of this process, you may want to review the
rules to ensure that any prohibitions are drafted narrowly and precisely.
We appreciate this opportunity to give you our views. 	Please feel free to get
back in touch if you have any questions or if we can help in any other way.
Sincerely,
/~/(~/
Mark D. Kindt
Regional Director
Cleveland Regional Office
26 Proposed Rule 2-10l(AX1) already prohibits false or deceptive communications.
27 Different kinds of solicitation may present different risks of abuse, so the
proper interpretation of these terms may depend on whether the solicitation at issue
involves mail, telephone, or face-to-face contact. 	Written advertisements seem to
present little danger of coercion or undue influence. 	Telephone solicitation may
present less potential for abuse than in-person solicitation because telephone calls are
easier to terminate than face-to-face conversations.