October 5, 2006
Posted by Mike Frisch
State Bar regulations with respect to lawyer advertising vary widely among the many jurisdictions. Perhaps the most restrictive state is Iowa, where lawyers are prohibited from advertising "unverifiable" claims and may not "rely on emotional appeal or [make] any statement or claim relating to the quality of the lawyer's services." Iowa Rule 7.1. A recent letter from the Federal Trade Commission's Office of Policy Planning, Bureau of Consumer Protection and Bureau of Economics commenting on proposed amendments to ethics rules governing New York attorneys suggests that state regulation may be overly broad and restrictive. The letter lends credence to the suggestion that consumers benefit from "robust competition among attorneys and from important price and quality information that advertising and solicitation can provide." It will be interesting to see the effect of the FTC's position on the proposed New York rules and to see if the anaysis emboldens attorneys in restrictive jurisdictions to challenge bar regulation on the grounds of First Amendment protections.
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Mike, I do hope the state bars considering such regulation consider the FTC paper you cite and whether the public shares this kind of 'ethics' focus by the bar. For an example of reporting requirements run wild, there's the comment one poster from Alabama made about blogging as advertising, at http://lawprofessors.typepad.com/legal_profession/2006/09/blogging_as_adv.html#comments
Posted by: Childress | Oct 5, 2006 11:28:17 AM
The FTC staff has been sending virtually identical versions of this Letter since at least October 2002, when it addressed proposed Alabama lawyer advertising restrictions. See http://www.ftc.gov/opa/2002/10/alabamalaw.htm . So far, the Commission advocacy has not had any apparent effects on regulators or attorneys. Instead, we see attacks on advertising by the Dignity Police in more and more states, in the name of protecting consumers, but in reality in order to project the notion of Professional Dignity and to dampen competition.
Of course, ABA Model Rule 7 basically takes the same position as the FTC staff. http://www.abanet.org/cpr/mrpc/rule_7_1_comm.html (see, especially, the Comments to 7.1 and 7.2)
For more coverage of this topic, at f/k/a, see the posting http://blogs.law.harvard.edu/ethicalesq/2005/09/26/missouri-newsflash-legal-consumers-are-really-stupid/ and http://blogs.law.harvard.edu/ethicalesq/nysba-disses-lawyer-advertising/ [apologies for the formatting nightmare in that posting], as well as
Posted by: david giacalone | Oct 17, 2006 5:59:48 PM