FTC Staff Comment Before the Supreme Court of Wisconsin Concerning Attorney Communication With Prospective Clients

UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON. D.C.20S80
February 18, 	1987
Hon. 	Nathan S. 	Heffernan
Chief Justice
Supreme 	Court 	of Wisconsin
231 	East 	State 	Capitol
Madison, 	WI 	53701-1688
Dear 	Chief Justice Heffernan:
The 	Federal 	Trade 	Commission 	staff 	is 	pleased to 	submit
these 	comments 	respecting 	the 	Court's 	consideration 	of 	a 	modified
version 	of 	the 	American 	Bar Association's 	Model 	Rules 	of
Professional 	conduct. 1
The 	proposals 	before 	the 	Court would 	in some 	respects 	permit
more 	attorney communication with 	prospective 	clients 	than 	the
existing 	Supreme 	Court 	Rules 	permit, 	and 	should, 	therefore,
assist 	consumers 	in making 	informed 	choices 	about 	legal 	services.
Some 	of 	the 	proposed 	rules, 	however, 	may 	harm consumers 	by
restraining 	price 	competition, 	restricting 	the 	development 	of
innovative 	and 	potentially more 	efficient 	forms 	of 	legal
practice, 	and 	limiting 	unnecessarily the 	information 	available 	to
consumers.
As 	is 	discussed 	in more 	detail 	below, 	we urge 	the 	Court 	to
(1) 	delete 	proposed Rule 	1.5(a) 	and 	retain 	the 	existing
prohibition on 	excessive 	fees; 	(2) 	eliminate 	the 	restrictions 	in
proposed 	Rule 	5.4 	on practice with 	nonlawyers; 	(3) 	modify
proposed Rule 	7.1 	to make 	clear that 	endorsements 	by 	clients 	and'
nonclients, 	and 	experience, 	success 	and 	comparisoll 	claims 	are 	all
permitted; 	(4) 	change 	proposed Rule 	7.2 	to 	allow 	the 	use 	of 	novel
advertising media 	and 	for-profit 	referral 	services; 	(5) 	modify
proposed Rule 	7.3 	to 	eliminate 	tne 	brOad ban 	on 	telephone
solicitation 	and 	to 	permit 	in-person 	contact 	for 	the 	purposes 	of
obtaining 	professional 	employment with 	all 	but 	those 	who, 	because
of 	their 	particular circumstances, 	are vulnerable 	to 	undue
influence; 	and 	(6) 	alter proposed Rule 	7.4 	to 	allow 	express 	and
implied 	claims 	of 	specialty.
lThis 	letter 	represents 	the 	views 	of 	the 	FTC'S 	Bureaus 	of
Competition, 	Consumer 	Protection, 	and 	Economics, 	and 	not
necessarily 	those 	of 	the 	Commission. 	The 	Commission 	has,
however, 	authorized' submission 	of 	these 	comments .
.'~

Chief Justice 	Heffernan
Proposed 	Rule 	1.Sea): 	Fees
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 	be 	considered 	in determining 	reasonableness. 	The
substitution 	of 	this 	language 	for 	Supreme 	Court Rule 	20.12, 	which
prohibits 	"a 	clearly 	excessive 	fee," 	may 	lead 	lawyers 	to 	infer
that 	the 	new 	rule bars 	"unreasonably low" 	fees. 	Such an
interpretation 	could 	tend 	to 	discourage 	price 	competition among
traditional 	practitioners; 	it 	could 	also 	be 	used 	to 	restrain
competition 	from 	legal 	clinics 	and 	other non-traditional
providers 	of 	legal 	services. 	We 	therefore 	suggest 	that the 	Court
not 	adopt 	proposed Rule 	1.5(a) 	and 	that 	the 	existing prohibition
on 	excessive 	fees 	be 	retained. 	Alternatively, 	accompanying
commentary 	should make 	clear that 	only 	excessively high 	fees
could be 	deemed unreasonable within 	the 	meaning 	of proposed 	Rule
1.5(a).
Proposed 	Rule 	5.4: 	Professional 	Independence 	of 	a 	Lawyer
Proposed Rule 	5.4 	prohibits 	a 	lawyer 	from 	forming 	a
partnership 	or 	sharing 	legal 	fees, 	except under 	limited
circumstances, 	with 	a 	nonlawyer, 	or 	from 	practicing 	in 	an
organization 	authorized 	to 	practice 	law 	for 	a 	profit 	if 	a
nonlawyer 	owns 	an 	interest 	in 	the 	organization or 	is 	an 	officer
or director. 	This 	proposed 	rule 	limits 	the 	ability 	of 	lawyers 	to
establish multidisciplinary practices with 	other professionals,
such 	as 	psychologists 	or 	accountants, 	to 	deal 	efficiently with
both the 	legal 	and 	nonlegal 	aspects 	of 	specific problems.
In American Medical 	Association, 	94 	F.T.C. 	701, 	1017-18
(1979), 	aff'd, 	638 	F.2d 	443 	(2d 	Cir. 	1980), 	aff'd memo 	by 	an
equally divided 	court, 	455 	U.S. 	676 	(1982), 	the 	Federal 	Trade
Commission 	found 	that 	the AHA's 	ethical 	restrictions 	on 	the
formation 	of 	professional 	associations 	with nonphysicians 	had 	an
adverse 	effect on 	competition. 	The AHA's 	form 	of practice
restrictions 	precluded a 	wide variety of 	professional ventures
and potentially economically efficient business 	formats, 	such 	as
health maintenance 	organizations 	and prepaid health care 	plans.
The 	Commission 	concluded 	that 	the 	prohibitions were much 	broader
than needed 	to prevent non-physician 	influence 	over medical
procedures 	or consumer deception 	about 	the 	skills 	of 	a 	non-
physician 	partner 	or associate. 	Proposed Rule 	5.4 	similarly
limits 	potentially procompetitive 	professional ventures, 	novel
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. 	We

Chief Justice Heffernan
therefore 	urge 	the 	Court 	to 	delete 	all 	of proposed Rule 	5.4,
except paragraphs 	(c) 	and 	(d) (3).2
3
Proposed Rule 	7.1: 	Communications 	Concerning 	a 	Lawyer'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
was 	permitted, 	many Americans 	failed 	to 	obtain the 	services 	of 	an
attorney, 	even when they had 	serious 	legal 	problems. 3 	In 	a
Wisconsin 	Bar Association 	survey, 	most 	Wisconsin 	residents
attributed 	the 	failure 	to 	cail 	an 	attorney when 	needed 	to 	a 	fear
that 	the 	legal 	services would 	cost 	too much, 	and 	to 	the 	inability
to 	locate 	a 	lawyer 	SUfficiently skilled 	at 	handling 	a 	particular
problem. 4 	Empirical 	studies 	suggest 	that 	the 	removal 	of
restrictions 	on 	the 	dissemination 	of truthful 	information 	about
lawyers 	and 	legal 	services 	will 	tend 	to 	enhance 	competition 	and
to 	lower 	prices 5 . 	Although 	some 	have voiced 	concern 	that
advertising may 	lead 	to 	lower 	quality 	legal 	services, 	the
empirical 	evidence 	suggests 	that 	the 	quaiity 	of 	legal 	services
provided 	by 	firms 	that 	advertise 	is 	at 	least 	as 	high 	as, 	i~ not
higher than, 	that provided by 	firms 	that 	do 	not 	advertise. o
2While 	there may be 	statutory 	limitations 	on 	forms 	of
practice, 	we 	urge 	the 	Court to 	refrain 	from 	adopting 	rules 	that
compound 	or 	go 	beyond these 	restrictions.
3 	For 	example, 	a 	nation-wide 	survey 	in 	1974 	by the 	American.
Bar 	Foundation and the American 	Bar Association 	found 	that 	only 	9
percent 	of 	the people who 	had 	a 	property damage 	problem, 	10
percent 	of 	those with 	landlord problems, 	and 	1 	percent 	of 	those
who 	felt 	that they were 	the victims 	of 	employment discrimination
sought 	the 	services 	of 	an 	attorney 	after 	the most 	recent
occurrence. 	B. 	CUrran, 	The 	Legal 	Needs 	of 	the 	Public: 	The 	Final
Report 	of 	a 	National 	Survey 	135 	(1977).
4wisconsin 	Bar Association, 	Survey 	2 	(1979).
5Cleveland Regional 	Office and 	Bureau 	of Economics, 	Federal
Trade 	Commission, 	Improving 	Consumer Access 	to 	Legal 	Services:
The 	Case 	for 	Removing 	Restrictions 	on 	Truthful 	Advertising
(1984).
6T• 	Muris 	, 	F. 	MCChesney, 	Advertising 	and 	the 	Price 	and
Quality 	of 	Legal 	Services: 	The 	Case 	for 	Legal 	Clinics, 	1979 Am.
B. 	Found. 	Research J. 	179.

Chief Justice Heffernan
We 	fully 	endorse 	the view that 	false 	and deceptive
advertising 	should be 	prohibited. 	Nonetheless, 	we 	are concerned
that 	the 	definition 	of 	"false 	or misleading" 	contained 	in
proposed 	Rule 	7.1 may prohibit much 	truthful, 	nondeceptive
advertising, 	as 	set 	forth 	below.
"Unjustified Expectations": 	Proposed 	Rule 	7.1Cb)
First, 	the ABA comments with 	respect 	to 	proposed Rule 	7.1,
apparently 	adopted 	by 	the 	Code 	of 	Professional 	Responsibility
Review Committee 	("CPR Review 	Committee"), 	state:
"The prohibition 	in 	paragraph 	(b) 	of 	statements 	that
may 	create 	'unjustified 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 	record 	in 	obtaining 	favorable
verdicts, 	and 	advertisements 	containing 	client
endorsements."
4
The 	comment 	suggests 	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." 	The ABA's 	construction 	of 	the 	prohibition 	of
advertising 	"likely to 	create 	an 	unjustified 	expectation" 	is 	so
broad 	that 	it 	could 	chill 	the 	use 	of much 	truthful 	advertising
that 	is 	beneficial 	to 	consumers. 	For example, 	consumers 	may wish
to 	use 	an 	attorney's 	past 	results 	as 	one 	of 	several 	factors 	to
consider 	in 	choosing 	a 	representative. 	"[I]t 	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, 	433 	U.S. 	350,'
374 	(1977).
We believe 	the 	likelihood 	that advertisements 	containing
client 	endorsements 	or 	information 	about 	past 	successes will
create unjustified 	expectations 	is 	small, 	and 	is 	clearly
outweighed by 	the 	potential 	benefits 	of 	this 	information to
consumers. 	Indeed, 	the 	CPR Review Committee 	recognized 	this 	in
recommending 	that 	the 	Court 	adopt 	proposed 	Rule 	7.1(d) 	to 	permit
client 	endorsements. 	We 	therefore urge 	the 	Court to 	disavow 	the
ABA commentary with 	respect 	to 	proposed 	Rule 	7.1(b).
Comparison 	Advertising: 	Proposed 	Rule 	7.1Cc)
Second, 	proposed Rule 	7.1(c) 	provides 	that 	a 	lawyer 	shall
not 	compare 	"the 	lawyer's 	services 	with 	other 	lawyers' 	services,
unless 	the 	comparison 	can be 	factually 	substantiated."
Information 	that 	accurately 	compares 	the 	particular 	qualities 	of
.'~

Chief Justice 	Heffernan
competing 	law 	firms 	may encourage 	improvement 	and 	innovation 	in
the 	delivery of 	services 	and 	assist 	consumers 	in making 	rational
purchase 	decisions. 	Indeed, 	in 	one 	sense, 	such 	consumer
comparisons 	are 	the 	essence 	of 	competition. 	Of 	course,
comparisons 	containing 	false 	or deceptive 	statements 	of 	fact,
either 	about 	the 	advertiser 	or a 	rival, 	provide 	no 	benefit 	to
consumers 	and 	can be harmful. 	However, 	such 	statements 	are
already prohibited by proposed Rule 	7.1(a).
5
We 	are 	concerned 	that proposed Rule 	7.1(c) 	may 	deter 	the 	use
of 	such 	advertising 	and preclude 	truthfUl, 	nondeceptive
statements 	merely because 	they 	are 	not 	amenable 	to 	empirical
testing. 7 	Examples 	of 	such 	statements 	are 	"Friendlier service"
or 	"More 	convenient hours." 	Such 	statements 	are 	not 	readily
subject 	to 	verification, 	but 	their benefits 	may 	outweigh any
possible 	harms 	because they 	indicate 	the 	qualities 	that 	the
advertiser 	deems 	important.
We 	urge 	the 	Court to 	modify proposed Rule 	7.1(c), 	to 	require
only 	that 	an 	attorney have 	a 	reasonable 	basis 	for 	any material,
objective 	claims.
Testimonials 	and 	Endorsements: 	Proposed 	Rule 	7.1Cdl
We 	applaud 	the 	general 	thrust 	of the 	CPR Review 	Committee's
proposed Rule 	7.1(d), 	permitting the use 	of 	testimonials 	and
endorsements 	in 	advertising. 	Such 	advertising 	traditionally 	has
been 	recognized 	as 	effective by 	sellers 	of 	goods 	and 	services.
For example, 	the 	choice 	of 	the 	clients 	listed 	in 	the 	Martindale-
Hubbell 	directory 	generally 	reflects 	an 	intuition that 	the
representation 	of 	a 	major bank 	or 	corporation suggests 	that 	a
firm 	can 	handle 	complicated 	legal 	problems 	in 	cases 	in which
7 In 	its 	statement of 	policy regarding 	comparative
advertising, 	the 	Federal 	Trade 	Commission 	recognized 	the 	benefits
of 	comparative 	advertising 	and 	indicated 	concern 	about 	standards
set 	by 	self-regulatory bodies 	that might 	discourage 	the use 	of
such 	advertising:
"On 	occasion, 	a 	higher 	standard of 	substantiation by
advertisers 	using comparative 	advertising 	has 	been
required 	by 	self-regulation 	entities. 	The 	Commission
evaluates 	comparative 	advertising 	in 	the 	same manner 	as
it 	evaluates 	all 	other advertising 	techniques. 	The
ultimate 	question 	is 	whether 	or not 	the 	advertising has
a 	tendency 	or capacity to 	be 	false 	or deceptive. 	.
[I]nterpretations 	that 	impose 	a 	higher 	standard 	of
substantiation 	for 	comparative 	claims 	than 	for
unilateral 	claims 	are 	inappropriate 	and 	should be
revised." 	16 C.F.R. 	14.15(c)(2) 	(1986).

Chief Justice Heffernan 	6
large 	sums 	of money may be 	put 	at 	risk. 	Advertising using
clients 	who 	attest 	truthfully 	that 	they 	use 	a 	firm's 	legal
services 	simply gives 	the 	general 	public 	the 	same 	information
that 	is 	available 	to 	users 	of 	legal 	directories. 	Similarly, 	an
advertisement 	in which 	a 	famous 	athlete 	or actor states
truthfully 	that he 	or 	she 	uses 	a 	particular 	firm 	or 	attorney,
tells 	consumers 	that 	someone who 	can 	spend 	a 	substantial 	sum to
find 	a 	good 	attorney, 	and who may 	have 	significant 	assets 	at
stake, 	believes 	a 	particular 	lawyer to 	be 	effective. 	At 	the very
least 	such 	an 	endorsement may make 	the 	advertising more 	effective
by 	attracting 	and 	retaining 	consumer attention.
We 	are 	concerned, 	however, 	about 	the 	restrictive 	effect 	of
some 	aspects 	of 	proposed Rule 	7.l(d). 	First, 	it 	is 	not 	clear
whether proposed Rule 	7.l(d) 	prohibits 	any 	testimonial 	or
endorsement by 	a 	nonclient, 	or 	simply requires 	disclosure 	that 	a
testimonial 	or 	endorsement 	is 	not 	made 	by 	a 	client. 	Any
requirement 	that 	testimonials 	and 	endorsements 	be 	given 	only 	by
actual 	clients 	is 	more 	restrictive 	than 	is 	necessary 	to protect
consumers 	because 	it 	is 	quite 	possible 	to 	form 	honest 	opinions
about 	a 	lawyer 	or 	firm without 	having 	been 	a 	client. 	For
example, 	a 	well-known 	and 	respected 	attorney 	could 	state
truthfully 	in 	an 	advertisement 	that he 	has 	worked wit~ the
advertising 	attorney 	and 	found 	him to be 	competent 	and
professional. 8
In 	addition, 	the 	requirement 	in proposed Rule 	7.l(d) 	that
any payment be 	disclosed may 	actually 	cause 	consumer confusion 	by
creating a 	false 	impression 	that 	the 	testimonial 	or 	endorsement
was 	given 	only because 	of 	the 	payment, 	and 	did 	not 	reflect 	the
endorser's 	true 	beliefs. 	Consumers 	are 	used 	to 	seeing this 	type
of 	advertising 	for 	other products 	and 	services 	and 	could be
expected to 	realize 	that 	endorsers 	are 	usually paid 	for 	their
time 	and 	effort 	in 	appearing. 	Compelled 	disclosure 	of 	such
payment may unnecessarily 	cast doubt upon 	the 	truthfulness 	of 	the
content 	of 	the 	advertisement.
We 	urge 	the 	Court to modify proposed Rule 	7.I(d) 	to make
clear 	that 	truthful 	testimonials 	and endorsements 	are not 	limited
8 	In 	its 	Guide 	concerning Use 	of 	Endorsements 	and
Testimonials 	in 	Advertising, 	the 	Federal 	Trade 	Commission 	defines
testimonials 	and 	endorsements 	synonymously 	and 	broadly, 	and does
not 	seek 	to 	limit 	endorsements 	to 	"actual 	consumers." 	The
Commission 	recognizes 	the 	validity of 	expert 	and 	celebrity
endorsement. 	Instead 	of 	suggesting a 	limit to 	the 	parties 	who
can give 	endorsements, 	the 	Commission 	suggests 	that
"[e]ndorsements must 	always 	reflect 	the 	honest 	opinions,
findings, 	beliefs, 	or 	experience 	of the 	endorser." 	16 	C.F.R.
255.1 (a) 	(1986).

Chief Justice Heffernan
to 	actual 	clients 	and to 	eliminate 	the 	requirement that 	the 	fact
of payment be 	disclosed.
Proposed Rule 	7.2: 	Advertising
7
We 	are 	concerned 	about 	the 	list 	of media 	in 	proposed Rule
7.2(a) 	because 	attorneys may 	interpret 	it 	as 	exclusive 	and
conclude 	that 	advertising 	in media 	not 	listed 	is 	prohibited. 	The
listing 	of 	specific media 	that may 	be used 	in 	advertising could
discourage 	innovation 	and 	the 	use 	of novel 	forms 	of 	expression 	in
ways 	not 	intended by 	the 	Court, 	especially since 	the 	phrase
"public media" 	is 	ambiguous. 	For 	example, 	the 	rule might be
interpreted 	to 	prohibit 	sponsorship 	of museum 	exhibits 	or youth
sports 	teams. 	In 	addition, 	the 	specificity 	of 	the 	rule 	fails 	to
anticipate 	changing technologies. 	For 	example, 	the 	rule might
be 	interpreted 	to 	exclude 	advertising 	in computer bulletin
boards, 	on-line 	directories, 	or similar media 	that may become
increasingly 	important 	in 	these 	days 	of 	office 	automation.
Proposed Rule 	7.2(c) 	appears 	to 	preclude the use 	of 	for-
profit 	lawyer 	referral 	services 	or 	other 	legal 	service
organizations. 	Such 	organizations 	allow 	lawyers 	to 	pcol 	their
advertising 	resources, 	yet maintain 	independent 	practices.
Also, 	rather 	than having 	to make 	a 	random, 	uninformed 	choice,
consumers 	benefit 	from 	the 	knowledge 	such 	services 	possess 	about
the 	partiCUlar 	expertise 	of 	each member 	attorney. 	The 	profit
motive 	benefits consumers 	by 	creating an 	incentive to 	refer
attorneys 	who 	can most competently and 	efficiently handle 	the
case, 	because dissatisfied customers will 	not 	continue 	to
patronize 	services 	giving poor 	referrals. 	As 	a 	result, 	the
interests 	of 	for-profit 	referral 	services may 	coincide with 	those
of 	consumers 	to 	a 	greater degree 	than 	is 	the 	case with 	nonprofit
bar association 	referral 	services, 	which may be 	obliged to 	give·
referrals 	on 	an 	equal 	basis 	to 	all 	attorneys. 	We 	urge 	the 	Court
to 	delete 	the 	requirement 	in proposed Rule 	7.2(c) 	that 	lawyer
referral 	services 	and 	similar 	legal 	service 	organizations 	be 	not-
for-profit.
Proposed 	Rule 	7.3: 	pirect 	Contact with 	Prospective 	Clients
We 	concur 	in 	the 	CPR Review Committee's 	conclusion, 	in
proposed 	Rule 	7.3(a), 	that 	targeted 	direct mailings 	do 	not 	unduly
invade 	the 	privacy 	of 	prospective 	clients 	and 	should be
permitted. 	We 	hope 	that 	other 	states may benefit 	from 	the
approach 	suggested by the 	committee. 	It 	is 	our view, 	however,
that proposed Rule 	7.3(b) 	is 	too 	restrictive 	in prohibiting,
except 	under very 	limited 	circumstances, 	telephone 	and 	in-person
contact 	for 	the 	purpose 	of 	obtaining professional 	employment.
This 	provision would 	restrict 	the 	flow 	of 	information more 	than
is 	necessary 	to 	protect 	consumers, 	because 	it would 	preclude

Chief Justice Heffernan 	8
truthful, 	nondeceptive 	communications 	in 	circumstances that pose
little 	or no 	risk 	of undue 	influence.
In-person 	contact may 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
proposed 	legal 	services 	and, 	in this 	respect, 	serve much the 	same
function 	as 	print advertising.
We 	recognize that 	abuses 	may 	result 	from 	in-person
solicitation by 	lawyers. 	Injured 	or 	emotionally distressed
people may be vulnerable 	to 	the 	exercise 	of undue 	influence when
face 	to 	face 	with a 	lawyer, 	as 	the u.S. 	Supreme Court reasoned 	in
Ohralik, 	436 	U.S. 	at 	465 	(1978). 	We 	do 	not believe, 	however,
that 	this 	is 	a 	justification 	for 	a 	broad 	prohibition on 	in-person
solicitation. 	The 	Federal 	Trade 	Commission 	considered the
concerns 	that underlie 	the 	Ohralik 	opinion when 	it 	decided
American Medical 	Association, 	94 	F.T.C. 	701 	(1979), 	aff'd, 	638
F.2d 	443 	(2d 	Cir. 	1980), 	aff'd memo 	by 	an 	equally divided 	court,
455 	U.S. 	676 	(1982). 	After weighing 	the 	possible hares 	and
benefits 	to 	consumers, 	the 	FTC 	ordered 	the AHA 	to 	cease 	and
desist 	from 	banning 	solicitation, 	but permitted 	it to 	proscribe
uninvited, 	in-person 	solicitation of persons Who, 	because 	of
their particular circumstances, 	are vulnerable 	to 	undue
influence.
In-person 	solicitation by lawyers 	usually does 	not 	involve
the 	exercise 	of undue 	influence. 9 	Lawyers 	encounter potential
clients 	at meetings 	of political 	and business 	organizations 	and
at 	social 	events. 	Indeed, 	lawyers 	traditionally have 	built their
law practices 	through 	such 	contacts. 	Under 	such circumstances,-
the 	possibility of undue 	influence 	is minuscule, 	and the 	.
potential 	client need not 	respond 	immediately. 	Similarly,
lawyers 	present 	speeches 	and 	seminars 	to 	prospective 	clients 	that
establish goodwill 	and help 	attendees 	to 	understand 	the 	law and
identify 	situations 	in which 	they might 	need 	a 	lawyer. 	Such
personal 	contacts 	present 	little 	risk 	of undue 	influence 	and
provide 	the 	benefit 	of 	enabling prospective 	clients 	to 	assess 	the
personal 	qualities 	of 	attorneys.
Accordingly, 	as 	to 	in-person 	contact, 	we 	urge 	that the 	Court
modify proposed Rule 	7.3(b) 	to prohibit 	only: 	(1) 	uninvited, 	in-
person 	solicitation 	of 	persons Who, 	because 	of 	their partiCUlar
circumstances, 	are vulnerable 	to 	undue 	influence; 	(2)
9To 	the 	extent 	that 	attorneys 	rely 	on 	client 	goodwill 	to
obtain 	referrals, 	a 	strategy 	of 	overreaching 	to 	gain 	clients
would 	seem 	to 	be 	counterproductive.

Chief Justice Heffernan
solicitation 	involving 	false 	or deceptive 	communications 	(which
are 	properly 	prohibited by proposed Rule 	7.1): 	and 	(3)
solicitation 	of 	a 	person who 	has 	made 	known 	to 	the 	lawyer a
desire 	not 	to 	receive 	a 	communication 	from 	the 	lawyer 	(as
recommended by the 	CPR Review Committee 	in 	proposed Rule
7.3(c) (2». 	Such 	rules 	would 	protect 	consumers 	while, 	at 	the
same 	time, 	allowing 	them to 	receive 	information 	about 	available
legal 	services.
9 	.
Telephone 	solicitation similarly can 	convey useful
information 	to 	consumers, 	and 	it may present 	even 	less 	risk 	of
the 	exercise 	of undue 	influence than does 	in-person 	solicitation.
In most 	circumstances, 	telephone 	solicitation appears 	unlikely 	to
result 	in 	consumer harm. 	Consumers 	are 	accustomed 	to 	telephone
marketing. 	They 	receive 	calls 	from 	persons 	offering the 	sale 	of
various 	goods 	and 	services, 	conducting 	surveys 	about products 	and
services, 	seeking 	contributions 	to 	charities, 	and 	requesting
support 	for 	political 	candidates. 	Consumers 	can 	easily terminate
offers 	of 	legal 	services 	communicated by 	telephone.
Telephone 	solicitation 	is 	in 	some 	respects 	similar to 	in-
person 	solicitation: 	a 	lawyer might 	be 	able 	to 	persuade 	a
vulnerable 	person 	to 	hire 	the 	lawyer. 	But there 	are 	also
differences 	between 	the 	two 	forms 	of 	solicitation. 	A telephone
solicitor may 	be 	less 	able 	to 	exercise 	undue 	influence 	than 	an
in-person 	solicitor, 	and 	it may be 	easier 	for 	the 	recipient 	of 	a
telephone 	solicitation 	to 	terminate 	a 	conversation 	than 	it 	is 	for
a 	potential 	client who 	is 	solicited 	in 	person. 	Perhaps 	there 	are
reasons 	that 	restrictions 	on telephone 	solicitation 	not
appropriate 	for 	other professionals 	could properly be 	applied 	to
lawyers. 	Although 	the AHA standard may be 	suitable, 	we 	are 	not
yet 	ready 	to 	conclude 	that 	it 	should be 	applied 	to 	telephone
solicitation. 	Certainly, 	telephone 	solicitation containing 	false
or deceptive 	communications may appropriately 	be prohibited, 	and
it 	is 	reasonable 	to 	prohibit telephone 	contact with 	a 	person who
has 	made known 	to 	the 	lawyer a 	desire 	not 	to 	receive 	a
communication 	from 	the 	lawyer 	(as 	provided 	in proposed Rule
7.3(c) (2». 	But the 	broad ban 	on telephone 	solicitation
contained 	in proposed Rule 	7.3 	is 	unnecessarily 	restrictive.
Proposed Rule 	7.3(c) (3): 	"Coercion. 	Duress 	or Harassment"
Proposed Rule 	7.3(c) (3) 	prohibits 	written 	communication 	or
telephone 	or 	in-person 	contact 	if 	"the 	communication 	involves
coercion, 	duress 	or harassment." 	Such 	a 	prohibition may 	be
appropriate, 	depending upon 	the 	interpretation of 	its 	terms.
Licensing 	boards 	and 	private 	associations 	in 	other professions
have 	often 	interpreted these 	or 	similar terms 	broadly 	and have
applied 	them 	to 	ban 	solicitation under 	circumstances 	that 	pose 	no

Chief Justice Heffernan
danger 	of harm to 	consumers. lO 	So 	long as 	these 	terms 	are
interpreted 	fairly 	and 	objectively, 	the 	proposed Rule would
adequately protect consumers 	and 	simUltaneously allow them to
receive 	truthful 	information. ll
Proposed 	Rule 	7.4: 	Communication 	of 	Fields 	of 	Practice
10
Proposed Rule 	7.4 	and 	its 	accompanying ABA comment would
prohibit the 	use 	of 	the 	terms 	"specialist," 	"practice 	limited
to," 	or 	"practice 	concentrated 	in" 	particular 	fields, 	in making
truthful 	claims 	that 	an 	attorney has 	developed 	skills 	or 	focused
his 	or her practice on 	a 	specific 	area 	of 	the 	law. 	The use 	of
such terms may be 	the 	clearest, 	most 	efficient way to 	communicate
such 	information. 	Because Wisconsin has 	no 	formal 	certification
program, 	it 	is 	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.
Such 	an 	implication 	seems 	even 	less 	likely 	to 	arise 	from 	a 	claim
that 	an 	attorney 	"limits" 	a 	law practice 	or 	"concentrates" 	in 	a
field 	of 	law.
The 	proposed 	rule prohibits 	an 	attorney 	from 	even 	implying
that 	he 	or 	she 	is 	a 	specialist, 	and 	therefore 	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, 	even though 	it 	informs 	consumers 	that 	the
attorney has 	sufficient 	interest 	in trial 	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 	attorney has 	special 	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 operation will 	be 	a 	success. 	We
recommend that 	the 	Court 	remove 	all 	prohibitions 	against truthful
and 	nondeceptive 	claims, 	express 	or 	implied, 	that 	a 	lawyer 	is 	a
specialist.
lOAS 	suggested previously, 	the 	potential 	for 	abuse may vary
among written 	communication, 	telephone 	contact, 	and 	in-person
contact.
llIt 	is 	likely 	that 	proposed Rule 	7.3(c) (2) 	adequately
guards 	against 	harassment 	by prohibiting 	further 	communication
with 	persons 	who 	have 	made 	known 	to 	the 	lawyer 	a 	desire 	not 	to 	be
contacted.
. ...

Chief Justice Heffernan
Conclusion
11
It 	appears 	that 	the 	proposed 	rules 	will 	allow the
dissemination 	of more 	information 	about 	legal 	services than the
current Wisconsin Supreme 	Court Rules 	and will 	thereby benefit
consumers 	of 	legal 	services. 	We 	urge 	that the 	Court 	eliminate
the 	remaining unnecessary 	restrictions 	on 	competition among
attorneys 	by: 	(1) 	modifying proposed Rule 	1.5 	to prohibit 	only
excessive 	fees; 	(2) 	deleting 	all 	of 	proposed Rule 	5.4, 	except
paragraphs 	(c) 	and 	(d) (3); 	(3) 	modifying proposed Rule 	7.1 	to
eliminate 	disclosure 	requirements, 	to make 	clear that 	nonclient
endorsements 	and 	success 	and experience 	claims 	are permitted, 	and
to 	require 	only that an 	attorney have 	a 	reasonable basis 	for 	any
material, 	objective 	claims; 	(4) 	amending 	proposed Rule 	7.2 	to
allow use 	of 	new 	advertising media 	and 	for-profit 	referral
services; 	(5) 	modifying 	proposed Rule 	7.3 	to 	permit 	in-person
contact with 	all 	but 	those Who, 	because 	of 	their particular
circumstances, 	are vulnerable 	to 	undue 	influence 	or have
expressed 	their wish 	not 	to 	be 	contacted and 	to 	eliminate 	the
broad ban 	on 	telephone 	contact; 	and 	(6) 	amending proposed Rule
7.4 	to 	allow 	express 	and 	implied 	claims 	of 	specialty.
Sincerely yours,
e 	fr 	I. 	Zuckerman
Director
Bureau 	of 	competition