Kentucky’s Proposed Lawyer Advertising Rules Go Too Far

June 2, 2003

Kentucky’s Proposed Lawyer Advertising Rules Go Too Far

Regulations Would Violate First Amendment and Raise Antitrust Concerns, Public Citizen Tells Kentucky Bar

WASHINGTON, D.C. — New regulations that would sharply limit the ability of Kentucky lawyers to use effective advertising techniques would violate the First Amendment, Public Citizen told Kentucky’s Attorneys’ Advertising Commission in comments today. Because the regulations have been issued by a commission of lawyers answerable to the Kentucky Bar Association and are not subject to approval by the Kentucky Supreme Court, the regulations may also run afoul of antitrust laws, Public Citizen said.

Among other things, the regulations would limit the use of actors and props in commercials, ban client testimonials and references to results achieved in particular cases, and prevent ads from mentioning claims for damages “unless they provide mind-numbing descriptions of the legal principles applicable to those claims,” said Scott Nelson, an attorney with Public Citizen, a national, nonprofit consumer advocacy organization.

In the comments, Public Citizen points out that the rules would prevent attorney advertising that is not false or misleading and that may provide valuable information to consumers. The U.S. Supreme Court has repeatedly held that such advertising is protected by the First Amendment.

“The idea that consumers will be misled by any commercial using a prop or an actor is ridiculous,” added Nelson. “These regulations assume that consumers are stupid.”

By barring attorneys from providing consumers with information about results they have achieved in prior cases and from identifying clients for whom they have provided satisfactory services, the regulations also would deprive consumers of information that may be critical to their choice of a lawyer.

“This is exactly the kind of truthful information that prospective clients need and that ethical lawyers try to provide,” Nelson said. “Many of Kentucky’s largest and most prominent law firms make similar information available to prospective corporate clients on their Web sites. Lawyers who advertise to consumers should have the right to give them the same kind of information that the big firms dish out on their Web sites and brochures.”

Because the regulations, which seem aimed primarily at plaintiffs’ attorneys who use broadcast advertising to reach consumers, would have the effect of stifling competition in the market for legal services, they may also run afoul of antitrust laws, Public Citizen said. The U.S. Supreme Court has held that rules promulgated by state bars are not protected from antitrust lawsuits unless they are prescribed by the state courts or some other government body.

The Advertising Commission’s rules have not been approved by the state Supreme Court and thus may be subject to a private treble damages action under the Sherman Act or to a federal government enforcement action by the Justice Department or the Federal Trade Commission (FTC). Simultaneously with the submission of its comments to the Kentucky’s advertising commission, Public Citizen forwarded them to the Justice Department’s Antitrust Division and to the FTC’s Bureau of Competition for review.

“We hope that the Advertising Commission will reconsider these proposed regulations,” Nelson said. “If not, the federal courts may have to step in.”

Click here to view Public Citizen’s comments. The letter to the Justice Department is available here and the letter to the FTC is available here

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