FTC Staff Comment Before the Florida Bar Concerning Proposed Changes to the Florida Rules of Professional Conduct on Computer-Accessed Communications

1 This letter expresses the views of the Federal Trade Commission’s Office of Policy Planning, Bureau of
Consumer P rotection, Bureau of Competition and Bureau of Econo mics. The letter does not necessarily represent
the views of the Federal Trade C ommission or of any individual Comm issioner. The Co mmission has, however,
voted to authorize us to submit these comments.
2 The Propo sed R ule is available at http://www.floridabar.org/T FB/TFB Resources.nsf/Attachments/
30A 240 687 33B 904 C8525 726 F00 7C5E80/$ FILE /4-7.6%2 0ap proved%2 0by% 20b og% 20fo r%20p ublication% 201 -2
6-06.doc?O penElement. We understand that the modifications to Rule 4-7.6 have been approved by the Bar’s Board
of Governors, who have invited public comm ent. We further understand that the Proposed Rule follows the Supreme
Court of Florida’s rejection of proposed changes to Rule 4-7.6 in November, 2006. See In re: Amendments to the
Rules Regula ting the Florida B ar - Advertising, 200 6 W L 30 931 26, *2 (Fla., N ov. 2, 200 6) (T he Court stated it
would, “consider the regulation o f Internet communications when the Bar files the rep ort of the special com mittee,”
and “request[ed] that the B ar und ertake an additional and contem porary study of lawyer advertising, which shall
include public evaluation and comments about lawyer advertising[.]”)
UNITED STATES OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON, D.C. 20580
Office of Policy Planning
Bureau of Consumer Protection
Bureau of Competition
Bureau of Economics
March 23, 2007
Elizabeth Clark Tarbert, Esq.
Ethics Counsel
The Florida Bar
651 E. Jefferson Street
Tallahassee, FL 32399-2300
Re: The Florida Bar’s Proposed Changes to the Florida Rules of Professional
Conduct Regarding Computer-Accessed Communications
Dear Ms. Tarbert:
The staff of the Federal Trade Commission’s (“FTC” or “Commission”) Office of Policy
Planning, Bureau of Consumer Protection, Bureau of Competition, and Bureau of Economics1 is
pleased to submit these comments regarding the Florida Bar’s Special Committee on Website
Advertising’s (“Committee”) Proposed Changes to Rule 4-7.6 of the Florida Rules of
Professional Conduct regarding Computer-Accessed Communications (“Proposed Rule”).2 As a
general principle, it is important to protect consumers of legal services from deceptive and
misleading advertising. The Proposed Rule, however, unnecessarily restricts truthful and non-
misleading advertising, may result in higher prices paid for legal services and less consumer
choice. This letter briefly summarizes the Commission’s interest and experience in the

Elizabeth Clark Tarbert, Esq.
March 23, 2007
Page 2 of 7
3 Although this letter focuses on the policy implications of the Propo sed Rule with respect to consumers and
com petition, the Bar may wish also to evaluate the Rule’s p rohib itions und er First A mendme nt criteria. See, e.g.,
Bates v. State Bar of Arizona, 433 U.S. 350 (1977) (striking down bar p rohib itions against attorney ad vertising in
general); Central Hud son G as & Elec. Corp. v. Pu blic Serv. Co mm ’n of New York, 447 U.S. 557, 566 (1980)
(com mercial speech regulations must be narrowly tailored to directly advance a substantial government interest); see
also Florida Bar v. Wen t for It, 515 U.S. 618 , 632 (1995) (commercial speech regulations must be in pro portion to
the interest served and be factored against other less-burdensome alternatives).
4 Federal Trade Commission Act, 15 U.S.C. § 45.
5 Specific statutory authority for the FTC’s advocacy program is found in Section 6 of the FTC Act, under
which Congress authorized the FT C “[t]o gather and comp ile information concerning, and to investigate from time to
time the organization, business, conduct, practices, and management of any person, partnership, or corporation
engaged in or whose business affects commerce,” and “[t]o make public from time to time such portions of the
information obtained by it hereunder as are in the public interest.” Id. § 46 (a), (f).
6 See, e.g., Letter from FTC Staff to the Rules of Professional Conduct Committee, Louisiana State Bar
Association (Mar. 14 , 200 7), ava ilable a t http://w ww.ftc.gov /opa /200 7/03 /fyi072 25.h tm; Letter fro m FT C Staff to
the Office of Court A dministration, Supreme C ourt of New York (Sept. 14, 200 6), available at http://www.ftc.gov/
os/2006/09/V060020-image.pdf; Letter from FTC Staff to the Professional Ethics Committee for the State Bar of
Texas (M ay 26, 200 6), ava ilable a t http://www.ftc.gov/os/2006/05/V060017C ommentsonaRequestforAnEthics
OpinionImage.pdf; Letter from FTC Staff to Committee on Attorney Advertising, the Supreme Court of New Jersey
(M ar. 1, 2006 ), available at http://www.ftc.gov/be/V060009.pdf; see also, e.g., Letter from FTC Staff to Robert G.
Esdale, Clerk of the Alabama Supreme Court (Sept. 30, 200 2), available at http://www.ftc.gov/be/v020023.pdf. In
addition, the staff has provided its comments on such proposals to, among other entities, the Supreme Court of
Mississippi (Jan. 14, 1994); the State Bar of Arizona (Apr. 17, 1990); the Ohio State Bar Association (Nov. 3,
198 9); the F lorida Bar Bo ard o f Governo rs (July 17, 19 89); and the State B ar of G eorgia (M ar. 31 , 198 7). See also
Submission of the Staff of the Federal Trade Commission to the American Bar Association Commission on
Advertising (June 24, 1 994 ) (available online as attachment to Sept. 30, 20 02, L etter to A labam a Sup reme Court,
supra).
regulation of attorney advertising and provides an analysis of the anticipated effects on
consumers and competition of the Proposed Rule.3
Interest of the Federal Trade Commission
The FTC enforces laws prohibiting unfair methods of competition and unfair or deceptive
acts or practices in or affecting commerce, which includes primary responsibility for stopping
deceptive advertising.4 Pursuant to its statutory mandate, the Commission encourages
competition in the licensed professions, including the legal profession, to the maximum extent
compatible with other state and federal goals. In particular, the Commission seeks to identify
and prevent, where possible, business practices and regulations that impede competition without
offering countervailing benefits to consumers.5 The Commission and its staff have had a long-
standing interest in the effects on consumers and competition arising from the regulation of
lawyer advertising and solicitation.6 The FTC believes that while false and misleading
advertising by lawyers should be prohibited, imposing overly broad restrictions that prevent the
communication of truthful and non-misleading information that some consumers value is likely
to inhibit competition and frustrate informed consumer choice. This position is supported by

Elizabeth Clark Tarbert, Esq.
March 23, 2007
Page 3 of 7
7 See, e.g. Tim othy J. M uris, California Dental Association v. Federal Trade Commission: The Revenge of
Footnote 17, 8 Supreme C ourt Economic Re view 265, 293-304 (2000) (discussing the empirical literature on the
effect of advertising restrictions in the professions); In the Matter of Polygram Holdings, Inc, et al; FTC Docket No.
929 8 (F.T .C. 20 03), at 38 n.52 (same); Frank H. S tephen & James H. Love, Regulation o f the Lega l Professions,
586 0 Encycloped ia of Law and Eco nomics 987, 99 7 (1999 ), availab le at http://encyclo.findlaw.com/5860book.pdf
(Empirical studies demonstrate that restrictions on attorney advertising have the effect of raising fees); Submission
of the Staff of the Federal Trade Commission to the American Bar Association Commission on Advertising, June 24,
199 4, at 5-6 (available online as attachment to Sept. 30, 20 02, L etter to A labam a Sup reme Court), supra.
8 See Rule 4-7.6(b)(3).
9 The Com ment to Proposed Rule 4-7.6 distinguishes a homepage from other webp ages (compare Rule 4-
7.6(b)(1) and Rule 4-7.6(b)(2 )) based on the degree of consumer initiation required to obtain the co ntent provid ed.
Thus, Rule 4-7.6 (b)(2 ) allows attorneys to place testimonials, statements of pa st success, and descriptive statements
on “websites except for homepages,” as long as they are accompanied by specified disclosures. For information on
how to present online disclosures most usefully to consumers while not unnecessarily burdening attorneys and law
firms, the C omm ittee may wish to consult FTC guidance con cerning how to disclose clearly and conspicuo usly
information in the on-line context. See g enerally, Federal Trade Commission, Dot Com Disclosures: Information
abo ut Online Ad vertising (May 2000) availab le at http://www.ftc.gov/bcp/conline/pubs/buspubs/dotcom index.pdf.
10 See Rule 4-7.2(c)(1)(I).
11 See Rule 4-7.2(c)(2).
12 See Rule 4-7.2(c)(1)(F).
13 See Rule 4-7.2(c)(1)(J).
14 W e also note that application o f these restrictions to other fo rms of attorney adve rtising is also likely to
deprive Florida consumers of truthful, non-misleading information.
research indicating that overly broad restrictions on truthful advertising may adversely affect
prices paid and services received by consumers.7
Likely Effects of the Proposed Rule
Currently the rule regarding computer-accessed communications classifies all Internet
websites as “information provided to a prospective client at the prospective client’s request.”8
The Proposed Rule would subject homepages, websites except for homepages (“websites”),9
emails, and other computer-accessed communications to rule 4-7.2 regarding attorney
advertising, which prohibits attorney advertisements from containing: (1) unverified comparisons
of the lawyer’s or law firm’s services with other lawyer’s services,10 and descriptive statements
describing or characterizing the quality of the lawyer’s services; 11 (2) statements referring to past
successes or results obtained;12 and (3) testimonials.13 Although the Proposed Rule exempts
websites from some of the restrictions in Rule 4-7.2 if specific disclaimers are made, FTC Staff
believes that it is likely to restrict unnecessarily the dissemination of truthful and non-misleading
information on homepages and websites.14 The Florida Rules of Professional Conduct already
prohibit false, misleading, or deceptive communications and prohibit attorneys from engaging in

Elizabeth Clark Tarbert, Esq.
March 23, 2007
Page 4 of 7
15 See Rule 4 -7.2(c)(1) and R ule 8.4 (c), resp ectively.
16 See Rule 4-7.2(c)(1)(I) as applied through Rule 4-7.6.
17 Prop osed R ule 4-7.6(b)(2)(C) states that web sites may contain factually verifiable statements describing or
characterizing the quality of the lawyer’s services if, either alone or in the context in which they appear, such
statements are not otherwise misleading.
18 See Letter from Federal Trade Commission to the New Jersey Supreme Court’s Committee on Attorney
Advertising (No v. 9, 19 87), available at 198 7 W L 87 459 0.
19 In addition, it is not entirely clear whether literally accurate descriptions (such as advertising that an
attorney is listed among “Super Lawyers” or “America’s Best Lawyers,” or that a lawyer has earned a “highest”
“AV ” ranking awarded by Ma rtinda le-Hubb ell) that may appear on a lawyer’s homepage, website, e-mail or other
advertisement will now be barre d either as imp roper compa risons o r as descriptive monikers that imply an ability to
obtain future results. Such information may benefit consumers so long as it is neither false nor misleading.
20 Pro posed R ule 4-7.6(b)(2)(A ) would allow statements of pa st success on websites except for home pages if
that statem ent is accomp anied by the following disclaim er: “Not all results are provided, the results are not
necessarily representative of results obtained by the lawyer, and a prospective client's individual facts and
circumstances may differ from the matter in which the results are provided.”
any dishonest, fraudulent, and deceitful conduct and misrepresentations.15 Because the Bar has
safeguards in place to protect consumers, FTC Staff recommends adopting a less restrictive
alternative than those proposed which constrain truthful, non-misleading statements in computer-
accessed communications.
First, the Proposed Rule would prohibit comparative claims that have not been
objectively verified from appearing in any forms of computer-accessed communications16 and
prohibit descriptive statements from appearing on computer-accessed communications other than
websites.17 Comparative advertising can encourage improvement and innovation in the delivery
of services and benefit consumers with assistance in making rational purchase decisions.18
Requiring that comparative claims be substantiated can, of course, serve consumers by helping to
ensure that claims are not misleading. But if substantiation is demanded for representations that,
although not misleading, concern subjective qualities that are not easy to measure and for which
substantiation may not normally be expected, then messages that consumers may find useful may
be barred. To the extent that the Proposed Rule’s broad restrictions might be based on a concern
that unsubstantiated comparisons and descriptions could mislead consumers, the concern would
be better addressed by a rule requiring that advertising claims that consumers would normally
expect to be substantiated, must be substantiated.19
Second, the Proposed Rules would prohibit reporting past success on homepages and
electronic solicitations, pursuant to Rule 4-7.2(c)(1)(F).20 Many lawyers and law firms (including
both Florida-based law firms and multi-jurisdictional law firms with offices in Florida) post on
main homepages announcements, press releases, and other stories that involve client
representations that consumers may find informative. Similarly, lawyers often announce their

Elizabeth Clark Tarbert, Esq.
March 23, 2007
Page 5 of 7
21 Proposed Rule 4-7.6(b)(2)(B) would allow testimonials on websites except for homepages if the testimonial
is acco mpa nied b y the following disclaimer: “Not all clients have provided testimonials, the results are not
necessarily representative of results obtained by the lawyer, and a prospective client's individual facts and
circumstances may differ from the matter in which the testimonials are provided.”
22 See generally Federal T rade Commission, G uide C oncerning the Use of E ndorsements and Testimonials in
Advertising, 16 C.F.R. Part 255. As part of the Commission’s regulatory review of its Endorsement Guides, the
Com mission is presently seeking public comm ent to the Guides.
23 See Rules 4-7.7.6(c), 4 -7.7, and 4-7 .8. This concern extends to all form s of advertising that are subject to
review, pre-approval, and approval under Rule 4-7. The FTC Staff recommends that the Bar address the impact of
this rule on consumers when it undertakes the “additional and contemporary study of lawyer advertising” as
mandated by the Supreme Court of Florida.
24 See, e.g., Deborah Platt Majoras, “Self Regulatory Organizations and the FTC,” Address to the Council of
Better Business B ureaus (Apr. 11, 2 005 ), (available at http://www.ftc.gov/speeches/majoras/050411selfregorgs.pdf).
25 Our concern about the policy and competitive constraints it imposes extends to the screening and approval
requirements of all attorney advertising as described in Rule 4-7.7.
achievements via e-mail and web-log (“blog”) reporting. Such communications may be truthful
and non-misleading and can help consumers in assessing the caliber or personal style of a lawyer
or law firm.
Third, the Proposed Rule would prohibit attorneys from using any testimonials on their
homepages and electronic solicitations.21 Testimonials and information about previous
representations can convey valuable information to consumers and help spur competition.
Accordingly, the FTC Staff recommends that they be prohibited only if the endorsement,
testimonial, or other information deceives consumers. As explained in the FTC’s Endorsement
Guides, a consumer testimonial is likely to be deceptive if the experience described is not the
consumer’s actual experience or is not representative of what consumers generally experience.22
The FTC Staff is also concerned that the Proposed Rule would require all computer-
accessed communications except for homepages and websites to be filed with and reviewed by
the Bar, which is comprised of competing attorneys, for compliance, evaluation and approval.23
Bar opinions of non-compliance with the Proposed Rule will result in the attorney being notified
that dissemination of the computer-accessed solicitation may result in professional discipline. In
this manner, the advertising rules likely compel substantial compliance because non-complying
attorneys would face serious risks to their livelihoods.
The FTC supports legitimate industry self regulation because, when implemented
properly, it can benefit consumers and competition.24 However, there are risks to competition
when one group of competitors regulates another. For example, attorneys reviewing
advertisements and solicitations may have the incentive, and would have the ability, to limit
advertising by competitors to soften competition rather than to protect consumers.25 This is

Elizabeth Clark Tarbert, Esq.
March 23, 2007
Page 6 of 7
26 Due to the risk of anticompetitive behavior, a leading antitrust treatise advocates subjecting any
governmental agency made of members of the profession that it regulates to direct and active governmental
supervision. See AREEDA & HO V EN K AM P, I ANTITRUST LAW ¶227a, at 5 00 (2d ed. 20 00) (“W ithout reasonable
assurances that the body is far more broadly based than the very persons who are to be regulated, outside supervision
seems required.”)
especially true given that advertisements and solicitations as defined may include those sent by
out-of-state attorneys to Florida residents. The FTC Staff is concerned that any potential benefits
from such extensive filing, disclosure, and review requirements would be outweighed by the
detrimental effect that such a regulatory obligation might have upon competition.26 The FTC
Staff encourages the Committee to revise the Rules so as to exclude such communications from
this form of review.
* * *
In conclusion, the FTC Staff believes that while deceptive and misleading advertising by
lawyers should be prohibited, restrictions on advertising that are specifically tailored to prevent
nothing other than deceptive claims provide the optimal level of protection for consumers.
Consumers benefit from robust competition among attorneys and from important price and
quality information that advertising and solicitation can provide. Rules that unnecessarily restrict
the dissemination of truthful and non-misleading information are likely to limit competition and
harm consumers of legal services in Florida.
Respectfully submitted,
Maureen K. Ohlhausen, Director
Office of Policy Planning
Lydia B. Parnes, Director
Bureau of Consumer Protection

Elizabeth Clark Tarbert, Esq.
March 23, 2007
Page 7 of 7
Jeffrey Schmidt, Director
Bureau of Competition
Michael A. Salinger, Director
Bureau of Economics