Any Restrictions Should be Tailored to Prevent Unfair or Deceptive Acts or Practices
Restrictions on attorney advertising should be tailored to prevent unfair or deceptive acts or practices, according to comments submitted to the Alabama Supreme Court by the Federal Trade Commission's Office of Policy Planning, Bureau of Consumer Protection, and Bureau of Economics. In response to the Court's request for comments, the FTC staff sent a letter on September 30 regarding proposed revisions to the section of the Alabama Rules of Professional Conduct titled "Information About Legal Services." The proposed rule revisions would, among other things, prohibit the appearance of people other than lawyers in television and radio ads for attorneys and require that the lawyer appear either in front of a bookcase or in his or her law office.
According to the FTC staff comments, "it is best for consumers if concerns about misleading advertising are addressed by adopting restrictions on advertising that are tailored to prevent unfair or deceptive acts or practices. . . . [I]mposing overly broad restrictions that prevent the communication of truthful and nondeceptive information is likely to inhibit competition and to frustrate informed consumer choice." As the Commission staff noted in a 1994 comment to the American Bar Association's Commission on Advertising, "research has indicated that overly broad restrictions on truthful advertising may adversely affect prices paid by consumers, especially for routine legal services."
The proposed changes to the Rules also would prohibit references to past successes or results, testimonials, descriptions of quality, and visual or verbal portrayals not objectively related to the selection of an attorney. The FTC staff cautioned, "banning all assertions that are self-laudatory or that relate to the quality of services offered may be unnecessarily broad and thus prohibit messages that consumers find useful in choosing a lawyer." In addition, "the rules against comparative claims could also be too broad."
Regarding how attorneys are portrayed in ads, the staff commented, "in discussing the issue of dignity in attorney advertising, [the 1994 comment] urged careful examination of the basis for concerns that such advertising would undermine public confidence in the justice system. It also observed that . . . some consumers are most effectively reached by advertising that may be considered undignified . . . and that the interest of effectively communicating the availability of legal services to such consumers should not be ignored."
Specific provisions of the rules intended to prevent deception will likely benefit consumers. The FTC staff noted, "The proposed revision on misleading or deceptive factual statements seems tailored to prevent advertising that may be unfair or deceptive."
"Consumers benefit from truthful advertising that allows them to make informed choices," said J. Howard Beales, Director of the FTC's Bureau of Consumer Protection. "Attorneys shouldn't be exempt from the price competition that can come from vigorous truthful advertising," added Ted Cruz, Director of the FTC's Office of Policy Planning.
The comment concluded, "In sum, the Commission staff believes that, while deceptive and unfair advertising by lawyers should be prohibited, restrictions on advertising that are specifically tailored to prevent unfair or deceptive acts or practices provide the optimal protection for consumers. Consumers benefit from robust competition among attorneys and from important price and quality information that advertising can provide. Rules that unnecessarily restrict that competition or the transmission of truthful and nondeceptive information are likely to harm consumers in the state of Alabama."
The Commission vote authorizing the staff to issue the letter responding to the request from the Alabama Supreme Court was 5-0.
NOTE: The views expressed in the letter are those of the staff of the FTC's Bureaus of Consumer Protection and Economics and the Office of Policy Planning, and do not necessarily represent those of the Commission or any individual commissioner.
Copies of the comment to the Alabama Supreme Court are available from the FTC's Web site at http://www.ftc.gov and also from the FTC's Consumer Response Center, Room 130, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580. The FTC works for the consumer to prevent fraudulent, deceptive and unfair business practices in the marketplace and to provide information to help consumers spot, stop and avoid them. To file a complaint, or to get free information on any of 150 consumer topics, call toll-free, 1-877-FTC-HELP (1-877-382-4357), or use the complaint form at http://www.ftc.gov. The FTC enters Internet, telemarketing, identity theft and other fraud-related complaints into Consumer Sentinel, a secure, online database available to hundreds of civil and criminal law enforcement agencies in the U.S. and abroad.
(FTC File No. V020023)
Director, Office of Policy Planning