FTC Staff Comment to S. Guy deLaup, Esq., President, Louisiana State Bar Association, Concerning Proposed Rules on Lawyer Advertising and Solicitation

1 	This letter expresses the views of the Federal Trade Commission’s Office of Policy Planning, Bureau of
Consumer Protection, Bureau of Competition, and Bureau of Economics. The letter does not necessarily represent
the views of the Federal Trade Commission or of any individual Commissioner. The Commission has, however,
voted to authorize us to submit these comments. A copy of Ms. Schnabel’s letter is enclosed.
2 	On March 14, 2007, the Commission Staff submitted Comments to the Louisiana Bar, which are enclosed
and are available at http://www.ftc.gov/be/V070001.pdf. The Proposed Rules were revised on March 21, 2007, and
are available at http://www.lsba.org/committees/ ethicrulescomments.asp.
3 	Bates v. Ariz. State Bar, 433 U.S. 350, 364 (1977).
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
August 10, 2007
S. Guy deLaup, Esq.
President
Louisiana State Bar Association
601 St. Charles Avenue
New Orleans, LA 70130-3404
Re: 	Louisiana State Bar Association Rules of Professional Conduct
Committee Request for Comments Regarding Proposed Rules on
Lawyer Advertising and Solicitation
Dear Mr. deLaup:
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 Economics
write in response to a letter from Marta-Ann Schnabel, immediate past-President of the
Louisiana State Bar Association (the “Bar”), dated May 21, 2007.1 In her letter, Ms. Schnabel
invited our further comments regarding the Louisiana State Bar Association’s Rules of
Professional Conduct Committee’s (“Committee”) Revised Proposed Rules on Lawyer
Advertising and Solicitation (“Revised Proposed Rules”). 2 We understand that the Bar already
has submitted the Revised Proposed Rules to the Court for its review and therefore also will
submit a copy of this letter to the Court. This letter briefly identifies our outstanding concerns
about the Revised Proposed Rules.
Truthful advertising performs an indispensable role in the allocation of resources in a free
enterprise system because it makes it easier for consumers to compare the price and quality
offered by competing suppliers. 3 Empirical research has found that restrictions on attorney

S. Guy deLaup
August 10, 2007
Page 2 of 4
4 	See Frank H. Stephen & James H. Love, Regulation of the Legal Professions, 5860 ENCYCLOPEDIA OF L. &
ECON. 987, 997 (1999), available at http://encyclo.findlaw.com/5860book.pdf (discussing empirical studies
demonstrating that restrictions on attorney advertising have the effect of raising fees); James H. Love & Frank H.
Stephen, Advertising, Price and Quality in Self-Regulating Professions, 3 INT’L J. ECON. B US . 227, 237 (1996)
(“There is very little evidence that advertising lowers the quality of service offered to the public, or that restricting
its use by professionals is likely to raise quality.”).
5 	See, e.g., Peel v. Attorney Registration & Disciplinary Comm’n of Ill., 496 U.S. 91, 110 (1990) (“A state
may not . . . completely ban statements that are not actually or inherently misleading.”).
6 	See generally id. at 108 (“[D]isclosure of truthful, relevant information is more likely to make a positive
contribution to decision making than is concealment of such information”); see also In re R.M.J., 455 U.S. 191, 201-
03 (1982) (explaining that states may not absolutely prohibit potentially misleading information, but may require a
disclaimer or explanation (citing Bates, 433 U.S. at 375)); Bates, 433 U.S. at 376 (“correct but incomplete”
information does not render attorney advertising inherently misleading and “the preferred remedy of a potentially
misleading omission is more disclosure, rather than less”); Pearson v. Shalala, 164 F.3d 650, 657 (D.C. Cir. 1999)
(holding that the commercial speech doctrine embodies “a preference for disclosure over outright suppression”).
7 	Specifically, the Revised Proposed Rules prohibit non-deceptive and non-misleading advertising that
includes references to and testimonials about past results (Rule 7.2(c)(1)(D)); promises results (Rule 7.2(c)(1)(E));
includes portrayals of clients by non-clients or re-enactments of events that are not actual (Rule 7.2(c)(1)(I));
includes portrayals of judges or juries and portrayals of fictitious lawyers (Rule 7.2(c)(1)(J)); resembles a legal
document (Rule 7.2(c)(1)(K)); involves the use of nicknames, monikers, mottos or trade names that imply an ability
to obtain results (Rule 7.2(c)(1)(L)); or uses a “recognizable” spokesperson (Rules 7.5(b)(1)(C) & 7.5(b)(2)(C). The
Revised Proposed Rules also prohibit unsubstantiated comparative advertising (Rule 7.2(c)(1)(G)), even for non-
misleading comparisons involving subjective qualities that are not easy to measure and for which substantiation may
not normally be expected. Moreover, the Rules are not identical to those adopted by the New York State Unified
Court System in January 2007. For example, the New York rules permit testimonials regarding past results; clients
and attorneys to be portrayed by actors; advertisements that are reasonably likely to create an expectation of results a
lawyer may achieve; and the use of recognizable spokespersons. We also note that, even though the New York
Court adopted rules less restrictive than those proposed, a federal district court recently found unconstitutional the
rules’ prohibitions on testimonials about pending matters; irrelevant advertising techniques; portrayals of lawyers
exhibiting characteristics unrelated to legal competence; nicknames, trade names, mottos and monikers that imply an
ability to achieve results; portrayals of fictitious law firms; portrayals of judges; and pop-up advertisements. See
Alexander v. Cahill, 2007 WL 2120024 (N.D.N.Y. 2007).
advertising lead to higher prices for legal services and there is little evidence that restricting
attorney advertising is likely to raise the quality of legal services.4 Accordingly, while false and
deceptive advertising by lawyers should be prohibited, FTC Staff believe consumers are worse
off when states ban an entire class of attorney advertising without any evidence that such
advertising is either actually or inherently deceptive or misleading. 5 Rather, consumers benefit
when concerns about potentially deceptive advertising are addressed by requiring attorneys to
provide more information, such as disclosures, rather than through prohibitions restricting the
flow of truthful information to consumers.6
Despite some modifications, the Revised Proposed Rules still appear to prohibit forms of
advertising that are not inherently or actually misleading. 7 Because the Rules already prohibit
deceptive and misleading advertisements, we suggest that rather than broadly banning those
specific forms of advertising prohibited by the Rules, the Bar and the Court consider providing

S. Guy deLaup
August 10, 2007
Page 3 of 4
8 	The Indiana State Bar Proposed Rules on Attorney Advertising have very few prohibitions on speech but
provide substantial guidance on how subjective forms of advertising may be deceptive. See Indiana State Bar,
Proposed Amendments to Rules Governing Attorney Conduct, available at http://www.in.gov/judiciary/rules/
proposed/2007/pcr-isba(jan).pdf. Although the FTC Staff does not endorse the Indiana Proposed Rules or their
comments entirely (see Letter from FTC Staff to Indiana Superior Court (May 11, 2007), available at
http://www.ftc.gov/be/V070010.pdf), these Rules are an example of how to provide guidance to attorneys on
avoiding deceptive advertising without prohibiting certain forms of advertising altogether.
9 	As we noted in our March 2007 letter, although disclosures may cure some informational defects,
unnecessary disclosures can deter some advertising and increase costs to consumers. See generally Letter from
Federal Trade Commission to the New Jersey Supreme Court’s Committee on Attorney Advertising (November 9,
1987), available at 1987 WL 874590.
guidance on how some advertising may be deceptive 8 and how to cure such potential deception
through clear disclosures. 9 Such a policy both informs attorneys of potential pitfalls in
advertising while not foreclosing the free flow of truthful information to consumers.
Finally, with respect to the safe harbor provisions adopted in Rule 7.8, by exempting
several forms of communication from the screening requirement, the safe harbor provisions are
likely to benefit consumers by increasing the flow of useful information concerning the market
for legal services. As stated in our March letter, however, when one group of attorneys has the
ability to determine whether their competitors’ advertisements conform to the Rules, there are
risks to competition. Accordingly, we recommend that the Bar forgo the filing and screening
components altogether or that the Rules at least ensure that the Review Committee as a whole,
and its members individually, are fully subject to federal and state antitrust laws.
We appreciate the invitation for further comment. Please do not hesitate to contact us
with any questions.
Respectfully submitted,
Maureen K. Ohlhausen, Director
Office of Policy Planning

S. Guy deLaup
August 10, 2007
Page 4 of 4
Lydia B. Parnes, Director
Bureau of Consumer Protection
Jeffrey Schmidt, Director
Bureau of Competition
Michael R. Baye, Director
Bureau of Economics
enc.
cc: 	Hon. Pascal F. Calogero, Jr., Chief Justice, Supreme Court of Louisiana