FTC Staff Comment Before the Alabama Supreme Court Concerning Proposed Regulations to Restrict Attorney Advertising of Professional Certifications

UNITED STATES OF AMERICA
FElJERAL TRADE COMMISSION
ATLANTA RECIONAL OFFICI::
AooIll 1000
171. PHoMt.. lI'·, N.W.
Attlll'I, o.oro.. 30317
(~)34704~
Robert 	G. 	ESQale
Clerk 	of 	the 	Supreme 	Court
P. 	O. 	Box 	lS7
Montgomery, 	Alabama 	36101
D~ilr M:t·. 	Esdale:
r.l::Jor.::::
COMMISSION
APPROVED
Pf74~5'?
Hal"ch 	.11, 	1987
The 	Federal 	Trade 	Commission 	staff 	is 	pleased 	to 	submit 	th~se
comments 	~oncerning proposed 	amendm~nts to 	the 	Code 	of
Professional 	Responsibility 	of 	the 	Alabama 	State 	Bar.'
Proposed 	Rules 	2-101(D) 	and 	2-112 	would 	restrict 	lawyers 	in
advertiaing 	the 	fact 	that 	they 	hold 	il 	certificate 	from 	a
professional 	certifying 	organization, 	even 	if 	advertising 	the
certification 	would 	pr.ovide 	truthful, 	nond~cQptive informntion 	to
consumers. 	We 	believe 	that 	such 	information 	is 	generally 	helpful
to 	consumers 	in 	making 	purchase 	decisions, 	and 	we 	therefore 	urge
the 	Court 	to 	~liminate these 	restrictions.
The 	Federal 	T~adG Commis5ion 	seeks 	to 	promote 	competition
among 	members 	of 	licensed 	pro!~ssions to 	the 	maximum 	extent
compatible 	with 	other 	legilimate 	state 	and 	feder~l goals. 	For
several 	years, 	the 	Commission 	has 	beEn 	investigating 	the 	effects
of 	restrictions 	on 	the 	businoss 	practices 	ot 	professionals,
inclUding 	lawyers, 	optometrisl~, dentists, 	physicians, 	funeral
directors, 	and 	others. 	Our 	goal 	is 	to 	identify 	and 	seek 	removnl
of 	restrictions 	that 	imped8 	competition, 	increase 	costs, 	and 	hGr~
consumers 	without 	providing 	countervailing 	benefits.
The 	Clerk 	of 	the 	Court 	indicated 	that 	w~ 	may 	also 	submit
comments 	on 	other 	Code 	provisions 	with 	resp~ct to 	which 	W~ 	could
give 	a 	useful 	per$pective. 	We 	thet'~forc 	recommend 	that 	the 	Cour~:
(1) 	modify 	the 	definition 	of 	false 	~nd misleading
communications 	in 	Temporary 	DR 	2-101 	(B) 	(iIlU 	(C) 	to 	avoid
prohibiting 	truthful, 	nondeceptive 	testimonials,
endorsements, 	statements 	about 	a 	lawyer's 	experience, 	and
comparisons 	of 	pilrticular 	lawy~rs and 	their 	servic~s;
This 	letter 	represents 	the 	vi~ws uf 	the 	FTC's 	AtlanLQ
Regional 	Office 	and 	the 	Bur~au~ of 	Competition, 	Consumer
Protection, 	and 	Economics, 	and 	not 	neccssnrily 	those 	of 	the
Commission. 	The 	Commission 	hns, 	however.. 	voted 	to 	CiuLhur'iz~ the
staff 	to 	submit 	these 	comments 	Lo 	you.

Such
G~·mer~"ll
pruvide
(2) 	modify 	TemporarY=OR 	2-102(A) 	to 	eliminate 	the 	list 	of
approved 	"publ,ic 	media" 	that 	lawyers 	may 	use 	to 	advertise;
(3) 	delete 	the 	requirement 	in 	Temporary 	DR 	2-102(E) 	that
every 	communication 	contain 	a 	disclaimer 	as 	to 	quality 	or
expertise~
(4) 	Jtlo-dify 	Temporary 	OF. 	~-l03 	to 	eliminate 	(a) 	the 	broad 	ban
on 	telephone 	solicitation 	except 	fur 	false 	and 	deceptive
solicitation 	and 	solicitatiun 	of 	persons 	who 	have 	expressed
their 	wish 	not 	to 	be 	conlact~d and 	(b) 	the 	restrictions 	on
in-person 	solicitation 	except 	for 	false 	and 	deceptive
solicitation 	and 	solicitation 	or 	persons 	who, 	because 	of
their 	particular 	circumstances. 	are 	vulnerable 	to 	undue
influence 	or 	who 	have 	expressed 	their 	wish 	nat 	to 	be
contact~di
(5) 	mndify TempoL-ary 	OR 	2-10·~ 	to 	avoid 	prohibiting 	l:c"ulh,[ul,
nondec~ptive statements 	about 	a 	lawyer's 	specialty; 	and
(6) 	delete 	Temporary 	D~ 	3-102{A) 	and 	3-103(A) 	und 	(C) (2) 	to
avoid 	preventing 	lawyers 	from 	establishing multi-disciplinary
pr3ctices 	with 	othei profassional~.
Temporary 	DR 	2-101{D} 	und 	2-112(a} 	prohibit. 	any 	~omlUunicoliuu·
by 	a 	lawy~r 	stating 	that 	he 	iscertiried 	by 	an-organization 	unless
the 	General 	Couns~l of 	the 	Alabama 	State 	aar 	has 	approved
adverti~in9 of 	that 	organization's 	certification 	program.
approval 	will 	not 	be 	granted 	under 	DR 	2-112{b) 	unless 	the
Counsel 	rinds 	that 	the 	advertising 	of 	certification 	"will
meaningful 	information 	that 	is 	not 	folse, 	misl~ading, or
d~~~plive. for 	us~ of 	the 	public 	in 	selecting 	or 	retaining 	a
lawyer. "2
We 	agree 	that 	advertising 	shuuld 	not 	be 	false, 	misleading, 	or
deceptive. 	Clearly, 	it 	would 	b~ deceptive 	for 	an 	attorn~y to
Z 	Temporary 	DR 	2-112(0) 	and 	(c) 	provide 	the 	procedures 	for
upproval 	for 	advertising 	of 	certifi~aliun. 	The 	l~ng~age of 	(b)
and 	(cl, 	however, 	discusses 	the 	"approva~ uf 	cortlfY1ng 	.
orQanizations." 	Such 	language 	could 	be 	1nterprete~ t? 	requ1re 	the
approval 	of 	the 	ostablishrnent 	or 	existence 	of 	eert1fYlng
organizations. 	We 	assume 	that 	this 	interpretation 	is 	not
in'tEinded.
2

advertise 	that 	he 	or 	she 	is 	"c~rtified" in 	an 	area 	of 	Jaw 	if 	no
certification~rocedureexists ~r 	if 	the 	a~torney~as nol 	obtained
certification, 	but 	conduct 	of 	that 	sort 	is 	already 	prohibit~d by
the 	general 	rule 	against 	deceptive 	adv~r'lising. 	A lawyer,
however, 	shQuld 	bu 	able 	to 	advertise, 	without 	prior approval 	by
the 	state, 	any 	truthful, 	nondeceptive 	information' about 	any
certification 	that 	he 	or 	she 	has 	obtained, 	regardless 	of 	what
organization 	has 	issued 	the 	certificat~. 	The 	advurtising 	ot
certification 	program~ can 	beneficially 	provide 	consumers 	with
facts 	about 	attorneys' 	special 	skills 	when 	certification
requiremont,s 	are 	l-easonably 	l"c!L,ted 	to 	assurinQ 	proficiency 	in 	the
subject. 	area 	certified. 	On 	th~ 	oth~r 	hand, 	when 	certified
attorneys 	are 	prohibited 	from 	truthfully 	adverlising 	thl!ir
training 	and 	skills, 	consumers 	will 	be 	deprived 	of 	information 	to
help 	them 	~hOQGC among 	qUHljficd 	practitioners 	who 	are 	certifjed
but 	who 	cannot 	advertise 	such 	certification. 	MQreover, 	consumers
could 	be 	led 	to 	believe 	erroneotlsly 	that 	attorneys 	are 	incompetent
to 	handle 	lh~ir legal 	needs 	in 	a 	particular 	field. 	The 	potential
consumer 	misunderstandin~ engendered 	by 	this 	rul~ could 	lessen
competition 	in 	fields 	for 	which 	a 	certificate 	is 	available. 	by
reducing 	the 	number 	of 	practitioners 	LllaL 	the 	public 	will
patronize, 	and 	could 	thereby 	raise 	legal 	services 	~Qst~ 	in 	t!105~
subj~ct areas.
Temporary 	DR 	2-112 	places 	~ 	restraint 	on 	the 	d~velopm~rlt of
private 	c~rtifying organizations. 	Such 	restraint 	may 	also
discourage 	attorneys 	from 	taking 	~ny 	training 	offered 	by 	thos~
org~n~zatiQns whose 	certification 	programs 	have 	not 	been 	approved
for 	adv~rti5ing by 	the 	State 	Bar. 	The 	inefficie~cy and 	injury 	to
competition 	would 	be 	particul~rly ftcut~ where 	the 	r~quir~ment of
Bar 	approval 	for 	purposes 	of 	advortising 	is 	not 	reasonably 	rel~tcd
to 	attaining 	prQfici~ncy in 	the 	specialized 	field. 3
Fnrthcr, 	the 	standard 	for 	npproval 	in 	DR2-112(b), 	based 	on
wh~lh~t' lh~ 	auvt:!rtisin~ of 	ct:!rtificiit.ic..>n 	providt:!s 	"rn~dIliIlg[lll
information. 	. 	for 	use 	of 	th~ public 	in 	selecting 	or 	retaining
a 	lawyer," 	is 	unn~cessarily va~ll~. 	Such 	d 	stanuard 	l:'~quires the
GenGral 	CounsGl 	to 	determine 	what 	kinds 	of 	information 	lhl:! 	public
,:\,s 	a 	whc,lc 	wi 11 	find 	"me:aningful" 	when. 	in 	fact, 	individual
consumers 	may 	place 	differGnt 	vnlu~s on 	different 	kinds 	of.
information.
3 	U.s~ 	u( 	certificates 	that 	arc 	not 	bona 	fide, 	or 	that 	are
issued 	by 	programs 	not 	relat~d to 	iDprovin~ skills 	in 	a 	subject
area, 	would 	be 	prohibited 	under 	the 	rule 	aqainst 	"false 	and
mialeading" 	advertising.
3

We 	therefore 	recommend 	that 	the 	Court 	eliminate 	the
restrwtions 	in 	DR 	2-101(0) 	and 	2-112 	so 	that 	lawyers 	who 	bave:
t~k~n training 	programs 	cUl~inating in 	receipt 	of 	a 	certificate 	be
allowed 	to 	communicate 	that 	fact. 	We 	also 	recommend 	that 	the
Court 	delete 	the 	provision 	for 	Bar 	approval 	of 	the 	advartising 	of
certification 	progr~ms.·
II. 	Communica t i.q,.l}~_ ..CollcerniI)g 	a 	Law:y~_r.·~_. Servi cas
The 	beneficial 	@ff~cts of 	advertising 	are 	widely 	recognized.
Truthful, 	nondec~ptivc advertising 	com~unicates information 	about
individuals 	or 	firms 	offering 	the 	services 	that 	consumers 	may 	wish
to 	purchase. 	Such 	information 	ht::lps 	consumers 	make 	purchase
decisions 	that 	r~flect their 	true 	preferences 	and 	promotes 	the
efficient 	delivery 	of 	s~rvices. 	Before 	advertising 	by 	attorneys
was 	permitted, 	many 	Americans 	failed 	to 	obtain 	the 	services 	of 	an
attorney, 	even 	when 	they 	had 	serious 	leQal 	problems. 1 	h 	r€ccnt
empirical 	:study 	suggests 	that ·the 	n?moval 	of 	r~strictions on 	the
dissemination 	of 	truthful 	inforrr.ation 	about 	lawyer5 	and 	l~gal
services 	will 	tend 	to 	enhanc~ competition 	and 	to 	lower 	prices,
thereby 	improving 	consumer 	access 	to 	the 	legal 	systcm.~ 	Although
~ome have 	voiced 	concern 	that 	advertising 	may 	lead 	to 	lower
quality 	legal 	servic~s, 	the 	empirical 	evidence 	suggest~ that 	the
quality 	of 	legal 	services 	p~ovided by 	firms 	that 	advertise 	is 	at
l~ast as 	high 	as, 	if 	not 	higher 	than, 	that 	provided 	by 	firms 	that
do 	not 	advcrtise. L
False 	and 	deceptive 	advertising, 	however, 	can 	have
significant 	negative 	~ffects-on both 	competition 	and 	consume1 A
welfare. 	Therefore, 	we 	fUlly 	endorse 	the 	view 	that 	such
1 	For 	exarr.ple, 	a 	nation-wide 	surv~y 	in 	1974 	by 	UH,~ l~m~rican
Bar 	Foundation 	ancl 	th~ American 	Bar 	Association 	found 	that 	only 	9
pen:ent 	of 	the 	peof;le 	who 	had 	C1 proper.ty 	damage 	probl ~m, 	10
percent 	of 	thos~ with 	landlord 	problems, 	and 	1 	percent 	of 	those
who 	fel t 	that 	they 	Here 	tht::! 	vic::tims 	of 	t:!lllploymcnt. 	dis<.::rimin;;\lioll
sought 	the 	services 	of 	an 	attorney 	after 	the 	most 	recent
occurrence. 	B. 	Curran, 	!..~_~_~eg.~.:±.Heecl.~ o.t:. ,th.e...PubJ,.ic; 	Th~.r:~n.~:l
~~port of 	a 	National 	Survey 	135 	(1977).
" 	Cleveland 	Regional 	Office 	and 	Bureau 	of 	Economics, 	Federal
Trade 	Commis s ion, 	;tmp'royJng..<:.Cln~~ro.er.Ac;:~c:ss. to 	Lega..l 	~el-vi Cf:5.2._~ h~
C~_~e 	f Cl.r 	Removing 	Restrict i q.~_~__.o!)._r.ruJ.:.h_(~)~ 	Adve:r ti s inq 	(1984).
6 	T. 	Muris 	& F. 	McChesney, 	bgx~rtisinQ and 	the 	Price 	and
Q),.~« It!:Y9C.J,~:g~'\.L~~.~ry_t.~e~U.	__J·.l1~_ ..~.~~~._J.o.r __ .r,..ega 1 eli nj C5 I 	1979 	.7\m. 	B.
Found. 	Research 	J .. 179.
4

I .l>,:..Jl.,:.l
advertising 	should 	be 	prohibited. 	We 	are 	concerned, 	however, 	th~t
Tempornry 	DR -2-101 (B) 	and 	2-101 fe) 	may 	imped~ the 	flow 	af 	truthful
information 	to 	consumers 	without 	providin~ any 	courlt~rvHiling
benefits. 	Subsection 	2-101(B) 	pluhibits 	communication 	that:
Is 	likely 	to 	create 	an 	Ul1j.ustified 	expectatiun 	ubout
results 	the 	lawyer 	can 	achieve, 	or 	states 	or 	implies
that 	the 	lawyer 	can 	achieve 	results 	by 	means 	tha~
violate 	the 	rules 	of 	professional 	conduct 	or 	other 	law.
Similarly, 	subsection 	2-101(C) 	prohibits 	communication 	thnt:
Compares 	the 	quality 	of 	the 	lawyer's 	services 	with 	the
quality 	of 	other 	lawyers' 	services, 	except 	as 	provided
in 	Temporary 	DR 	2-104.
(a) 	~~mporary DR.~~lOl(B):
Temporary 	DR 	2-101(B) 	could 	b~ 	read 	to 	prohibit 	client
endorsements 	and 	truthful 	communications 	about 	an 	attorney's
record 	of 	favorable 	verdict~. 	The 	ABA 	committee 	comments
accompanying 	ABA 	Model 	Rule 	7.1, 	from 	which 	DR 	2-·101(8) 	is
derived, 	suggest 	that 	such 	information 	is 	"likely 	to 	create 	~n
unjustified 	expectation 	about 	results 	the 	lawyer 	can 	achiev~" und
should 	be 	prohibited. 	The 	ABA's 	interpretation 	appe~rs to 	be
unnece~~arily rC3trictive 	and·m~y discourage 	truthful,
nondeceptive 	communications. 	For 	Qxample, 	consumers 	may 	wish 	to
usc 	an 	attorney's 	past 	results 	as 	one 	of 	several 	factors 	to
con9ider 	in 	choosing 	a 	representative. 	"[I]t 	~~ems peculiar 	to
deny 	the 	consumer, 	on 	the 	ground 	that 	the 	information 	is
ineomplete. 	at 	least 	~ome of 	the 	relevant 	information 	needed 	to
I-each 	an 	infot"m~d decision." 	Bates 	v. 	State 	Bar, 	433 	U. S. 	350,
374 	(1977). 	-_.. _-.--
We 	peliev8 	the 	possibility 	that 	advertisements 	containing
client 	endorsements 	or 	information 	about 	past 	successes 	wlll
create 	unjustified 	expectations 	is 	small 	and 	is 	probably
outweighed 	by 	tho 	potential 	benefits 	of 	this 	information 	to
consumers. 	At 	the 	very 	least, 	such 	endorsements 	may 	enhanc~
audience 	attention 	and 	retention 	and, 	cunsequently, 	incre~se th~
effectiveness 	of 	th~ 	advertisement. 	Many 	law 	firms 	list 	r~fer~rlC~S
and 	major 	clients 	in 	the 	Martindal~-Hubbell Law 	Dir~ctory. 	Th~
choic~ of 	the 	listed 	clients 	probably 	reflects 	a 	judgment 	that 	the
representation 	u[ 	a 	major 	bank 	or 	corporation 	will 	5Ugg~St to
potential 	clients 	that 	the 	firm 	can 	handle 	complicated 	l8gal
problems, 	or 	cases 	in 	which 	large 	sums 	of 	mon~y reay 	be 	~l 	ris):.
5

_' ., 	"'"T I ~ ..J' 	r.~.J I
To 	permit 	such 	major 	clients 	to 	endorse 	in 	an 	advDrtisem~nt that
they 	use 	a 	firm's 	legal 	services 	simply 	gives 	lh~ general 	public
the 	same 	information 	that 	is 	availabl~ to 	users 	of 	legal
directories. 	Similarly, 	Whetl 	a 	famous 	athlete 	or 	actor 	appears 	in
..n 	commercial 	to 	say 	truthfully 	that 	he 	uses 	a 	particulCiJ: 	riI-m 	or
attor~ey, 	it 	tells 	consumers 	~hat someone 	who 	can 	spend 	a
substantial~um 	to 	find 	a 	good 	attorney. 	and 	who 	may 	have
significant 	assets 	at 	stake. 	believ~s a 	particular 	lawyer 	to 	by
effective.
Of 	course, 	mani 	attorneys 	do 	not 	have 	large 	corporate 	or
famous 	individual 	clients. 	But 	we 	arc 	not 	aware 	of 	any 	r8ason 	to
believe 	tllat 	it 	would 	be 	har~ful for 	an 	average 	consumer 	to 	lppear
in 	a 	commercial 	and 	to 	say 	truthfully 	that 	he 	received 	prompt 	and
satisfactory 	~crvice from 	a 	particular 	uttorney. 	Although 	many
factors 	other 	than 	an 	attorney's 	skill 	can 	affect 	the 	outcome 	of 	a
caS8, 	there 	is 	no 	reason 	to 	believe 	that 	consumers 	naively 	expect
that 	th~ 	future 	will 	Cilways 	res8ffible 	the 	past. 	Accordingly, 	we
urge 	the 	Court 	to 	dolet~ T~mporary DR 	1-101(B).
COj/\'p_~£.ison Claims
Temporary 	DR 	2-101(C) 	prohibits 	any 	comparison 	of 	the 	quality
of 	a 	lawyer's 	s~rvices with 	that 	of 	any 	other 	lawyer. 	If 	the 	tern1
"quali ty" 	is 	interpreted 	bt'Qudly, 	compcu'i::oons 	of 	<lny 	ldnd 	may 	be
prohibited 	or, 	at 	the 	least. 	discouraoed. 	Information 	that
accuratel~ compares 	the 	particular 	qualities 	of 	competing 	law
firmG, 	however, 	may 	foster 	improvement 	and 	innovation 	in 	the
deliv~ry of 	services 	~nd may 	Rssist 	consumers 	in 	making 	ratiQnnJ
purchase 	decisions. 	Indeud, 	in 	one 	sense, 	such 	consumer
comparisons 	are 	the 	essence 	of 	c(')mrJ(;~ti tion. 7 	or 	course,
7 	In 	its 	statement 	of 	policy 	regarding 	comparative
advertising, 	the 	Federal 	Trade 	Commission 	reco~nized the 	benefits
of 	comp~rative adve~-tising nnd 	indicat~d concern 	about 	standards
set 	by 	self-regulatory 	bodies 	that 	night 	discourage 	the 	usc 	of
such 	advertising:
"On 	occasi on, 	.:1 	higher 	standard 	of 	subs tan tia tion 	by
advertisers 	using 	comparative 	advertisinQ 	has 	be~n
required 	by 	5elf-regulation 	entiti~s. The 	Commi5sion
ev~luates comparative 	adv~rtisinq in 	the 	same 	manner 	as
it 	evaluates 	all 	oth~r advertising 	techniques ...
[I]nterpretations 	that 	impose 	a 	higher 	standard 	of
~ubstantiation for 	compnrative 	claims 	than 	for
6

comparisons 	containing 	fa.lsc 	or 	d~ceptive statem~l1ts of 	fact.
either-about 	~c 	~dvcrtiger ur-u 	rival, 	provide 	no 	benefit 	to
consumor~ and 	can 	be 	harmful, 	However, 	such 	statements 	dr~
already 	prohibited 	by 	Temporary 	DR 	2-101(A),
We 	urge .the 	Court 	to 	modify 	T~mporary DR 	2-101(C) 	to 	require
only 	that 	an 	attorney 	have 	a 	r~dsonable,basis 	for 	any 	materiul"
obj~::ctiv", <.:laims,'
(c) 	Temporary ,O~ 2 -1 0;1 (A L:Pe.rmi t t ed 	t1t:?4i a
We 	are 	concerned 	that 	attorney~ may 	interpret 	tho 	listing 	of
permitted 	media 	in 	Temporary 	DR 	2"102(A) 	dS 	exclusive 	and 	conclude
that 	advertising 	media 	not 	listed 	are 	prohibited. 	'rh~ list 	ot
speci fic 	media 	thi1t 	may 	be 	Dr,(~n in 	advertising 	could 	disco\lT.i1go
innovation 	and 	the 	use 	of 	novc~ forms 	of 	expression 	in 	ways 	not
int~:nd~d by 	the 	COul-t, 	esp~cL::l:l.1.y since 	the 	term 	"public 	mC"dia" 	is
ambiguous. 	For 	example, 	the 	rul~ ~ight be 	interpreted 	to 	prohibit
sponsorship 	of 	mU3eum 	exhibits 	or 	youth 	sports 	teams, 	Moreover,
the 	specificity 	of 	the 	rule 	fails 	to 	nnticipate 	changing
technologies. 	If 	"written 	communication" 	is 	interpreted 	to 	rut~~
only 	to 	physically 	pormanent 	writings. 	advertising 	in 	comput~r
bulletin 	boards, 	un-line 	diroctoric5, 	or 	similar 	media 	may 	be
prohibited, 	We 	urge 	the 	Court 	to 	del~l~ Temporary 	DR 	2-102(~)
Temporary 	DR 	2-102(E) 	r~quircs Inclusion 	of 	a 	disclaimer 	in
all 	advertisements 	tJlat 	no 	representation 	is 	made 	about 	the
quality 	of 	services 	or 	the 	exp~rtisc of 	the. lawyer, 	The 	value 	of
advertising 	i9 	to 	h~lp consumers 	to 	make 	judgments 	about 	qualiLy
and 	expertise, 	which 	will 	assist 	them 	in 	choosing 	a 	lawyer. 	As
long 	as 	truthful, 	nondeceptivc 	statGments 	are 	mad(";, 	how.?v.~'r. 	flU
such 	disclaimor 	i~ 	necessary 	to 	protect 	the 	consumer. 	Almost 	any
informaLion 	in 	nn 	advertisement 	could 	be 	illL~rpreted as 	a
representation 	about 	quality 	or 	exp~rti5c, 	The 	disclaimer 	would
greatly 	diminish 	the 	effectiveness 	of 	advertising, 	and 	l~wyers mAy
be 	discouraged 	from 	advertising 	at 	Qll.' 	In 	addition, 	consumers,
who 	may 	want 	to 	use 	the 	informaliurl 	in 	the 	advertisement 	to 	make 	K
judgment 	about 	quality 	and 	expertise. 	~ay be 	confused 	by 	the
disclaimer 	as 	to 	what 	the 	information 	in 	the 	advertisement 	real.1y
mGuns.
unil.:ltcJ"Cll
revised,"
claims 	are 	.lHdppropriat<.: 	and 	should 	be
16 	C.F.R. 	14.15(c) (2) 	(1986).
7

Moreover, 	any 	di~closure r~quir8nGnt increQses 	adv~rtising
costs. 	Adve~il;!ing space 	or 	media 	tim!; 	is- limited 	and 	any
disclo~ure reduces 	the 	net 	amount 	of 	time 	or 	space 	available 	to
the 	advertiser 	for 	communicating 	the 	primary 	messag~ of 	the
ad~ertisemcnt. 	Disclosure 	requir~mcnts, therefore,-should 	be 	used
sparingly, 	and 	sho~ld not 	be 	required 	by 	tIle 	state 	unless 	there
exists 	evidence 	of 	deception. 	We 	urge 	that 	Temporary 	DR 	2-102(E)
be 	e~iminateq.
Temporary 	DR 	2-103 	prohibits 	solicitation 	of 	a 	prospective
c] ient 	by 	t.clephOllE:! 	or 	in 	person, 	when 	a 	sjgnificant 	motive 	is 	the
lawyer's 	pecuniar.y 	gain. 	The 	interet.t 	in 	pecuniary 	gain 	is
legitimato 	and 	is 	not 	intringicalJy 	harmful 	to 	consumers. 	Because
almost 	any 	contact 	could 	include 	or 	be 	interpreted 	as 	including
pecuninry 	gain 	as 	one 	significant 	motive, 	this 	prohibition 	is
overly 	broad. 	When 	viewed 	in 	conjunction 	with 	DR 	2-102(A),
moreover, 	this 	rule 	could 	also 	b~ 	interpreted 	to 	prohibit 	targeted
mailings 	to 	consumers.
More 	personalized 	forms 	of 	contact 	may 	provide 	many 	of 	thG
same 	benefits 	as 	advertising. 	Truthful, 	nondeceptive 	mail,
telephone 	and 	in-person 	solicitation 	may 	assist 	consumers 	in
learning 	about 	the 	availability 	of 	legal 	services. 	Both 	t~lephone
and 	in-person 	solicitation 	may 	have 	some 	potential 	for 	abuse 	if 	a
lawyer 	contacts 	an 	injured 	or 	emotionally 	distressed 	consumer. 	In
other 	circum~tunce9, howev~r, 	such 	adverse 	effects 	are 	unlikely.
Therefore, 	a 	comprehensive 	ban 	on 	all 	forms 	of 	s~licitation is
unneces$srily 	broad 	and 	may 	harm 	consumers. 	In 	the 	paragraphs
that 	follow~ we 	will 	set 	out 	our 	views 	on 	the 	proper 	standard 	to
apply 	to 	different 	forms 	of 	solicitation.
(a) 	Targeted 	Mail~nSL~
First, 	lawyers 	should 	be 	p8rmitted 	to 	use 	targeted 	~Gilingg
as 	they 	see 	fit. 	Written 	communications 	with 	prospectiv~ clients
known 	to 	need 	legal 	services 	may 	help 	them 	select 	a 	lawyer.
Spe.ncer 	v. 	HonorC:lblt! 	~~~1:~<::_E:S or 	the- 	§.up.~~.m.~_~Q).lrt of 	Pa., 	579 	F.
Supp. 	aao 	(E.n. 	Pa. 	1984), 	~~t~~ mem., 	760 	F.2d 	261 	(3d 	Cir.
1 9 8 S). 	SeEl 	In 	n:!_'y's:> n 	Wi e 9 en, 	6 3 	N. Y. 	;;: d 	16 3, 	4iON . E. 	2cl 	8 J 8, 	4 e1
R.Y.S. 	2d 	40 	(Ct. 	App. 	1984), 	c~~t~_dcnied sub 	nom. 	~q~~i~te~_o~
Professional 	Standarqs 	y. 	Von 	Wiegen, 	105 	S. 	Ct. 	2701 	(1985). 	By
t~;;geting 	lettt1rG 	to 	;-'part-icular 	audiencc:, 	the: 	It\wy~r call 	provide
information 	to 	those 	consumers 	who 	are 	most 	likely 	to 	need 	legal
services 	and 	who 	may 	need 	to 	have 	a 	ldwy~r 	tC:lke 	action
expeditiously 	on 	their 	behalf. 	Tho~e consumers 	are 	most 	likely 	to
benefit 	from 	information 	about 	what 	services 	are 	available.
8

, • l.~.:..J
~9cr, 	579 	F. 	SUPPa 	at 	091. 	As 	the 	court 	stated 	in 	Kuffler_ .. v.
Joint 	Bar 	A~;i.'n, 	51- N.Y. 	2d 	141r, 	J.46. 	412 	N.!:. 	2d 	927, 	931, 	432--
N.Y.S. 	2d 	872, 	875-76 	(Ct. 	App. 	1980), 	~~rt. 	denied, 	450 	U.S. 	102b
(1981) ;
To 	outlaw 	the 	use 	of 	letters 	addressed 	to 	those
most 	likely 	to 	be 	in 	nf;:ed 	of-leqal 	services 	. 	. 	.
ignores 	the-str.on~ societal 	and 	i~dividudl interest 	in
the 	frea 	dissemination 	of 	truthful 	price 	information 	as
a 	mean .. 	of 	assuring 	informed 	and 	rcliabl~ d~cision
making 	in 	our 	frt:!t:! 	enterprise 	system 	.
The 	Seven th 	Circqi t 	reasoned 	sim:i larly 	in 	Adams 	v . _At torney
~,_egistxat:~..o!Li1n<LDJ_~c;:~p)j.r;gFY 	Comm~_n, 	801 	F.2d 	968, 	973 	(7th 	Cir.
1986), 	that 	" [p]rnhibiting 	direct 	mailings 	to 	those 	who 	might 	most
desire 	~nd might 	most 	bunefit 	from 	An 	~ttorney's 	servi~es 	runs
afoul 	of 	the 	concerns 	for 	an 	infurmed 	citizenry 	that 	lay 	at 	the
heart 	of 	Bn t8J!. .. 	M.orr~OV(H·, 	consumers 	who 	choose 	to 	cespond 	to
such 	mailings 	incur 	lower 	se~rch costs 	b8caU~t:! th~y need 	not
contact 	numerous 	lawy~rs 	to 	find 	one 	able 	to 	handle 	a 	spt:!~i[i~
legal 	problem.
T~'I.l-geted muil 	advertising, 	as 	long 	as 	it 	is 	tl'uthful 	and
nondcceptive, 	poses 	little 	danger 	0[ 	consu~er harm. 	It 	is
unlikely 	that 	written 	communications 	will 	be 	coercive 	or 	in~olve
intimidation 	()I" 	duress. 	In 	re 	Von 	Wie~~_n, 	63 	N.Y. 	2d 	.:It 	170, 	470
N.E. 	2d 	at 	84J, 	481 	!'I.Y.S. 	2d 	at 	43; 	~9(V:.~r, 	51 	N.Y. 	2d 	at 	149,
412 	N.E. 	2d 	at 	933, 	432 	N.Y.S 	2d 	at 	877-78. 	When 	a 	consumer
receives 	a 	J~ttcr 	in 	the 	mail 	from 	an 	attorney 	otfering 	l~gal
services, 	no 	immediate 	r~spo~se is 	rt:!quir~d and, 	if 	unwanted, 	the
letter 	can 	cosily 	be 	disc~rde:d. 	Such 	letters, 	however, 	may 	alsu
communica te 	importan t 	inforrna t ion 	that 	consumel'S 	can 	cal." efully
consider 	in 	making 	a 	reasont:!d 	decision 	about 	selecting 	a 	lawyer."
Therefore, 	we 	believe 	that 	targeted 	written 	communication 	should
be 	governed 	by 	the 	same 	falso 	and 	l~isl~ading standard 	u~~d for
other 	advertising. 	We 	also 	hctve 	no 	objection 	to 	prohibiting
mnilings 	to 	persons 	~ho have 	madn 	known 	to 	the 	lawyer 	that 	they 	du
not 	wish 	to 	receive 	communications 	from 	the 	lawyer.
II 	See 	SlCltldin9 	Committee 	or. 	Ethics 	and 	Professional
R.esponsibili ty 	and 	Commission 	on 	Adv~l~lii;>iIl(~, Am<:trican 	Bar
Ansociation, 	Report 	to 	lht:! 	Houst:! 	of 	D~legatus 6 	(1987) 	for 	a
discussion 	of 	th~ b~ncfits to 	consumers 	and 	the 	absence 	of
s:i.;Jni fic:ant 	potential 	for 	abust:! 	dL-ising 	from 	wr-itten
communications. 	Pages 	7-10 	of 	the 	Report 	address 	the
constitutional 	issues, 	which 	we 	do 	not 	discuss.
9

(b) 	Telephone -and 	In-="P(:rson 	Solicit~~ron
Second, 	we 	urge 	that 	the 	Court 	modify 	Tempo~ary DR 	~-103 	tu
permit 	telephone 	and 	in-person 	901i~itation. 	Like 	media
advertising, 	in 	person 	sOlici tat ion 	may 	provide 	infoI:'ITIi:i t ion 	to
consumers 	that 	will 	help 	th~m select 	a 	lawyer. 	As 	the 	Suprem~
Court 	observed 	in 	Ohralik 	v. 	Ohio 	Statg 	Bar 	Ass' n., 	436 	U. S.- 447,
457 	(1978), 	in-person 	contacts 	can 	canvey 	infor~ation ~bout the
availability 	and 	lerrns 	of 	a 	lawyer's 	or 	law 	firm's 	legal 	services
and 	serve 	the 	same 	function 	in 	tlli~ 	respect 	as 	print
advQrtisements:.
We 	recognize 	that 	abuses 	may 	result 	from 	in-person
solicitation 	by 	lawyers. 	Injured 	or 	emotionally 	distressed 	people
may 	b~ 	vulnerable 	to 	the 	exercise 	of 	undue 	influence 	When 	face-to-
face 	with 	a 	lawyer, 	as 	the 	Supr~mc Court 	found 	in 	Ohrnlik, 	436
U.S. 	at 	465. 	We 	do 	not 	believe, 	however, 	that 	this 	is 	a
justification 	for 	a 	broad 	prohibition 	on 	in-person 	solfcitati~n.
The 	Federal 	Trade 	Cammission 	conside~cd the 	concerns 	that 	underlie
the 	Ohrali~ opinion 	when 	it 	<1cc:ided 	American 	Medic~l,A.~~.'n. 94
F.T.C. 	701 	(1979), 	aff'd 	sub 	nom. 	American 	Medical 	Ass'n 	v. 	FTC,
638 	F. 2d 	443 	(2d 	eil:-. 	1980), 	af f.-;·~·rr.e,,~-.-bY a~__ .~g1J_'l*l i_ di-;Id~-~" -
.£.0 u r t, 	4 5 5 	U. S. 	67 6 	(19 8 2). 	1\ f t (~ r. 	t<-ye i go hi n Q 	the 	po 5 sib 1 Eo h arm sand
benefits 	to 	consumers, 	the 	FTC 	ald~red 	the 	AMA 	to 	coase 	and 	desist
from 	banning 	solicitation, 	but 	perm1,ttcd 	the 	AMA 	to 	proscribe
uninvited, 	in-person 	solicitQtion 	of 	person~ who, 	beCgtl5C 	of 	th0ir
particular 	circumstances, 	nr~ 	vulnerable 	to 	undue 	influence.
In-person 	solicitation 	by 	l~wy~rn usually 	dOGS 	not 	involve
the 	exercise 	of 	undu~ influence. 	Lawyers 	often 	encounter
potential 	clients 	at 	meetings 	of 	politic~l and 	business
organizations 	and 	at 	social 	(:vents. 	Indeed, 	ll\ilny 	lawyer'~
traditionally 	hav~ built 	their 	law 	practices 	through 	such
contacts. 	If 	a 	lawyer 	discusses 	his 	or 	her 	legal 	ser~ices with 	a
potential 	client 	und~r such 	circumstances, 	no 	undue 	inf]u~ncc is
lik~ly 	to 	be 	involved. 	In 	such 	a 	situation, 	tho 	potontiql 	client
need 	not 	respond 	immeaiately 	nnd 	can 	SUbsequently 	s~l~ct 	~ 	l~wy~r
should 	a 	need 	for 	legal 	s~rvices arise.
AccordinQlY, 	we 	urge 	that 	Tempor~ry DR 	2-103 	be 	~odifi0d to
prohibit 	(1) 	uninvited, 	in-pe:rson 	SOlicitation 	of 	persons 	~~ho,
because 	of 	their 	particular 	circuInst.ances, 	arc 	vulnerable 	ta 	undue
influence 	and 	(2) 	solicitat.ion 	of 	per£.(ln~ who 	lJCtV~ lIIi::Hle 	known 	to
the 	lawyer 	that 	they 	do 	not 	want 	to 	be 	contacted 	by 	the 	lawyer.
False 	OI' 	d~ceptivc solicitatian, 	as 	already 	indicated, 	should 	also
be 	prohibited. 	Such 	rules 	would 	protect 	consumers 	while, 	at 	the
10

4~4 347 4725 	P.12
same 	time, 	allowing 	them 	to 	recaive 	information 	about 	av~ilable_
-	tegal 	servic"l!s.
Telephone 	~olicitation similarly 	can 	conv~y useful
.inforrnll t-iDn 	to 	consum~rsI 	and 	it 	may 	prcsont 	eVt::'n 	It;'ss 	risk 	of 	the 	...
exercise 	of 	undue 	influence 	than 	does 	in-person 	solicitation. 	In
moat 	cireumstance~, telephone 	solicitation 	appears 	unlikely 	to
res'ul_t 	in 	consumer 	hl'lrm.- 	Consumers 	oX°1;! 	accustomed 	to 	t~lephone -
marketing. 	Th~y receive 	call~ from 	p~rsons offering 	the 	~ale of
v~rious qoods 	and 	services, 	conducting 	surveys 	about 	thG 	products
and 	~t>rvices consumers 	use, 	seeking 	~otltributions to 	cha:r1t.ics,
and 	requesting 	support 	for 	political 	candidates. 	Consumers 	can
easily 	terminate 	Guch 	conv@rsations 	it 	they 	wish.
On 	tho 	other 	hand, 	telf;!phom: 	solicitation 	is 	in 	some 	respects
£imilar 	to 	in-per~OJl solicitQtion 	in 	that 	a 	verLul 	~x~hnngc takes
plac~; 	a 	lawy~r 	might 	be 	abl~ 	to 	persuade 	a 	vulnerable 	person 	to
hire 	the 	1.:Iwyer 	Wh(!Il 	a 	non-ovulnerab10:: 	person 	would 	Hot 	hir.e 	him 	or
her 	undor 	the 	sam~ circumstanc~~. 	Moreover, 	there 	may 	bE 	reasons
why 	restrictions 	on 	t@l~phonc solicitation 	not 	appropriate 	for.
other 	professionals 	may 	appropriately 	b8 	applif;!u 	to 	lawyers.
Cert':linly, 	i1:i).~.e and 	deceptiovc 	telephone· 	solicitation 	tInct
telephone 	soli~il~tion of 	per~ons who 	hava 	mad~ knUW!1 	Lo 	thc
IGwyeto 	lhat 	they 	do 	not 	want 	to 	receive 	~alls 	from 	the 	lawyer 	may
appropriately 	be 	prohibited. 	Althouah 	the 	standard 	tor 	uninvited,
in-person 	~olicitation may 	also 	be 	appropriate 	here, 	wo 	ara 	not
yet 	ready 	to 	conclude 	that 	it 	~h()uld be 	applied 	to 	telephone
° sol i ci ta tion. 	But 	c;~rtninly the 	broad 	ban 	on 	t~ lephc.m~
solicitation 	contained 	in 	Temp~rary DR 	2·-103 	i~ 	unn~ccssarily
rcatrictive.
Temporary 	DR 	2-104 	prohibits 	a 	lawyer 	from 	stating 	or
implying 	that 	he 	or 	she 	is 	a 	sPGcialist.. 	Such 	a 	:rule 	would
prevent 	a 	lawy~r 	from 	using 	the 	word 	"s~c:cialist" in 	making 	a
truthful 	claim 	that 	he 	or 	sh€ 	has 	dev~lop~d skills 	or 	focus~d his
or "her 	practice 	on 	an 	area 	of 	the 	law. 	Yet 	use 	of 	thiB 	If;!l:m 	may
be 	the 	clearest, 	mosl 	~fficicnt way 	to 	communicate 	that
information. 	It 	is 	not 	clear 	lhdt 	a 	claim 	that 	one 	is 	a
~~p~cialist" 	would 	be 	understood 	by 	lay 	per90n~ 	Lo 	imply 	that 	a
lawyer 	has 	obtained 	formal 	recogniliorl 	~s 	a 	specialist. 	The
prohibit.ion 	of 	false 	claims 	of 	certification 	furth~r:- diltl.i.Il.i~hl:.'~
the 	likelihood 	of 	such 	a 	public 	misunder~tanding. 	Temporary 	DR 	2-
104 	eould 	also 	be 	interpreted 	to 	prohibit 	a 	widG 	variely 	o[
truthful 	statements 	about 	exp~ricncc and 	special 	training. 	For
example, 	a 	true 	statement 	thilt 	an 	at tur"Hcy 	i~ 	i;\ 	ml:.'llIber 	C'f 	an
organization 	of 	trial 	lawyers 	might 	be 	int~rpr~tcd by 	some 	as 	an
11

implied 	claim 	of 	specialization, 	even 	though 	it 	also 	informs
consumers 	that 	the 	attornfl:Y 	hn-s 	suffi-ci cnt 	intcrcrst 	in 	td a1
advocacy 	to 	join 	the 	organization 	and 	has 	access 	to 	the
organization's 	training 	and 	materials. 	There 	are 	many 	ways 	to
obtain _expertise,_ 	and 	information 	that 	an 	att.orney 	has 	special
experience 	or 	skills 	in 	a 	particular 	field 	is 	clearly 	us~tul lo
consumers 	needing 	help 	in 	that 	field. 	Nor 	do 	we 	b~iev(~ that
ad~ertisinq as 	a-"specialist" 	wouh1 	ere-ate 	an 	unjustifit:-d
expectation 	about 	the 	results 	that 	a 	lawyer 	can 	achiev~, 	uny 	more
th~n identifying 	oneself 	as 	~ 	cardiovascular 	surgeon 	generates 	an
expectation 	that 	every 	operation 	will 	b~ 	a 	success. 	w~ 	recommend
that 	the 	Court 	remove 	all 	prohibitions 	~gainst truthful 	and
nondeceptive 	claims. 	cxprRSS 	or 	implied, 	that 	a 	lawyer 	is 	a
specialist.
v. 	TelT\porary 	DR - 3-102J A) 	_rtnd_}_~19~Jh) (1.~~:L. (CJ (.2)
Independence 	of 	a 	Lawyer Profess; onal
Temporary 	DR 	]-102(A) 	ctnd 	]-lOJ.A) 	and·(C) (2) 	prohibit 	a
lawyer 	from 	!ormitlg 	a 	pccrlw.:'I"~;ld p 	or 	~haring l~gal Leel:;, 	except
und~r limited 	circumstances, 	with 	~ 	nonlawyer, 	or 	from 	pr~cliciIlg
in 	a 	professional 	corporation 	or 	other 	business 	organization
authorized 	to 	practice 	law 	for 	a 	profit 	if 	a 	nonlawyer 	owns 	~n
interest 	in 	th~ 	organization 	or 	is 	an 	offic~r or 	dire~tor. 	The
rules 	limit 	tho 	ability 	of 	Inwyors 	to 	establish 	multidis~ip]111aty
practices 	with 	otller 	professional~, 9u~h as 	psychologists, 	nurses.
or 	accountants, 	to 	deal 	efficiently 	with 	both 	the 	l~<;Jal ~fld
nonlegal 	aspects 	of 	specific 	problems.
In 	~~E~<:.an J1eq~_C;}!.+._~s.~oc.?::SU:io}1, 94 	F .. T.C. 	701, 	1017-18
(1979), 	aff'd, 	638 	F.2d 	443 	(2d 	Cir. 	1980)-, 	aff'st m~m,PY_._i:1.n.
~qUC:l:LlY._4i'yj.. g~<l_._c_<:>_urL, 	455 	u.s. 	676 	(1982), 	the 	Federal 	Trade.:
Commission 	found 	that 	the 	AHA's 	ethical 	restrictions 	OB 	the
formation 	of 	px·of~ssiotl~l dssociations 	with 	nonphysicians 	had 	an
adverse 	effect 	on 	competition. 	The 	AHA's 	form 	of 	practice
restrjctions 	prcclud~d a 	wid~ 	variety 	uf 	professional 	ventures 	and
economically 	efficient 	business 	formats, 	such 	as 	health
maintenance 	or<;Janiz4tions 	~lld prepaid 	health 	care 	plan~. 	The
Commission 	concluded 	that 	the 	prohibitions 	w~r~ much 	broader 	than
needed 	to 	prevent 	non-physician 	influuIlce 	uv~r medical 	procedures
or 	consurn~r d~c~plion about 	the 	skills 	of 	a 	non-phy~ician 	partner
or 	associate. 	Temporary 	DR 	3-102(A) 	and 	3-103(A) 	and 	(e) (2)
similarly 	limit 	potentially 	procomp~tiliv~ profes5ion~] ventures
and 	innovative 	business 	formnt3. 	Temporary 	DR 	3-103{B) 	and 	Ie) (1)
alone 	should 	adequately 	preserve 	the 	lnwyer's 	ind~pendent
professional 	judgnent, 	Thcn~fQrc, we 	n:~cCJnlln\:!nd 	that 	the 	Committee
delete 	Temporary 	DR 	3-102(A) 	and 	3-103(A) 	and 	(e) (2).
12

VI. 	Conc],usion
- 	-The 	Temporary 	Rules 	approved 	by 	the 	Court 	in 	Octub~1 	1985
g~vo 	lawyers 	a 	greater 	opportunity 	to 	disseminQl~ information
abou.t 	legal 	services 	to 	consumers 	thcu.l" previous.1y.~ We _urge 	that
the 	Court 	eliminate other 	unnecessary 	restrictionS"_on 	competition
amonq 	lawyers 	by:
(l) 	dell:lling 	Temporary 	DR 	2"101(0) 	~nd 	2"112;
(~) 	delating 	Temporary 	DR 	2-101(3);
(~) 	modifying 	Temporary 	DR 	2-101(C) 	to 	require 	only 	th8t 	an
uttorney 	have 	~ 	rea90nabl~ basi3 	for 	any 	material,
objective 	cl~im9;
(4) 	d~leting Temporary 	DR 	2-102(A);
(5) 	deleting 	Temporary 	DR 	2-102(E);
(6) 	modifying 	Te1ltpor~ry DR 	2,-103 	to 	elim:i.!1dtc 	(u) 	thc, 	J:>road
ban 	0:1 	telephone 	solic;itation 	BXCept 	for 	false 	·;iI:5
dcccpt1vC 	solicitdlioXl 	[lnd 	solicitation 	of 	Pl.~r'sons who
have 	expressed 	a 	desire 	not 	to 	be 	contQct€d 	and 	(b) 	th~
restric~ions on 	in-pe~son ~01icitatiun ~xcept [or 	f~ls~
and 	deceptive 	solicitation 	cillU 	501icitation 	of 	perS0ns
who, 	beC'C'luse 	of 	tl1li:i:r 	PdLlictl]ar 	circumstances, 	are
vulnerable 	to 	undu<= 	iI1flu~ncc 	or 	who 	ha.ve 	expressed
their 	wish 	not 	to 	be 	contacted;
(7) 	modifying 	Temporary 	DR 	2-104 	to 	allow 	express 	and
imp]j~d claims 	of 	specialty; 	and
(8) 	delet.ing 	Temporary 	OF. 	3-102(A) 	nnd 	3·-l0.3(A) 	cmd 	(C) (2)
We: 	apprl;ci.,1t"-, 	h<:\vlng 	hCid 	tht.~ opportuni ty 	to 	present 	these
view~.
Harold 	E. 	Kil'
Assistant 	Director
Atlanta 	R8Qional 	Offic8
Sincerely 	yo~~~:---'\
13

•
fc~~~( K .O~'~·~-·IL·kf· 	I'·
Paul 	R. 	Duvis
-f>irector
Atlanta 	Regional 	Office
14
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