The Kentucky Bar Association appears to be taking a giant step back into the nostalgic and fictional land of “professional dignity,” where all lahwyahs were gentleman who wouldn’t dirty their patrician hands with advertising — or competition! As Carolyn Elefant at MyShingle.com pointed out yesterday, KBA seems about to enact strict regulations on lawyer advertising, using the ancient excuse that they are “
“Ads that use props, such as damaged vehicles and checks with the implication they were involved in a legal case, would be prohibited. The new rules would disallow any ad that suggests a client more likely would win by picking a certain firm and would prevent firms from using certain testimonials concerning actual quality of service and suggestion that a firm has been more successful than others. An attorney’s ad also would not be able to state the dollar amount of a judgment, verdict or settlement in most legal matters.”
MyShingle.com correctly suggests that having a little more faith in the intelligence of the public, and perhaps helping to better educate the public on how to be intelligent consumers of legal services and advertising seems to be a far more enlightened and (to my perspective) client-centered brand of self-regulation. I bet the Federal Trade Commission is already preparing a bit of “competition advocacy” right now, to help educate KBA on the subject of regulating lawyer advertising in a manner that comports with the needs of consumer protection, without violating the First Amendment or antitrust laws.
Just in case the FTC staff hasn’t targeted KBA’s little conspiracy to restrain competition, I suggest the Association take a close look at a 16-page, fully annotated, letter sent by the FTC to the Alabama Supreme Court just last September, addressing proposed restrictions almost identical to those being considered by KBA. There’s a good Press Release, too (Oct. 3, 2002), if the KBA advertising committee is too busy for footnotes.
Here’s an excerpt from the FTC Press Release:
“[I]t 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.”
As to the “dignity of the profession” argument, the FTC’s Alabama Letter concluded: “[B]road rules to enforce criteria of ‘dignity’ may prevent the communication of useful, nondeceptive information and thus inhibit competition and consumer choice. Strict rules to enforce ‘dignity’ may not give consumers enough credit, for consumers apparently respond more positively to advertising that would be considered ‘dignified.’ And consumers appear to be less offended by certain supposedly undignified methods than professional themselves are.”
Two Cents from Jackie Cliente: Here’s some truth in advertising about Your Editor: His lowest grade in law school (B-) was in Professional Ethics (in 1975). The entire grade was based on a term paper, in which the budding consumer/competition advocate argued that a lawyer should be able to engage in any advertising that is truthful and nondeceptive — even if annoying as hell. Especially galling to the traditionalist professor was Editor’s conclusion that, despite centuries of banned advertising, “The public appears to respect General Mills more than the Attorney General.” Thought you’d want to know.
Update (filed 6/16/03): Bert Foer at the American Antitrust Institute sent over a copy of Comments submitted on May 30, 2003, by Public Citizen to the Kentucky Bar association’s commission on advertising rules. In a Press Release dated June 2, 2003, Public Citizen announced and described the filing, with links to the 29-page (pdf.) submission, as well as letters sent on May 30th to antitrust officials at the Department of Justice and Federal Trade Commission, asking for investigation of the rules. Dealing with each of the proposed restrictions on advertising, Public Citizen argues in great detail that the new rules would prevent truthful and nonmisleading advertising and stifle competition (especially from plaintiff’s attorneys who use tv to attract clients), resulting in violations of both the First Amendment and antitrust laws.
Update: The Kentucky proposals were in fact adopted, resutling in the following Advertising Regulations.