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Is the Legal Profession Violating State
and Federal Consumer Protection Laws?
Elena S. Boisvert
Alaw firm's endeavors can be divided into
two categories: the professional aspect,
which is and ought to be governed by the
Rules of Professional Conduct; and the
business aspect-the getting and billing of
clients. The latter is and ought to be governed by
the same rules that govern other industries engaged
in similar efforts.1 However, the legal profession is
largely self regulatory, with most of that emphasis
on the professional aspects of lawyer behavior and
relatively little attention paid to
the business end. The purpose of
this paper is to suggest that the [it has not ye]
profession has developed certain
business practices which, if of them to in
engaged in by other businesses, fellow
would immediately bring about
the furor of the Federal Trade
Commission, the state attorneys
general and the legislative bodies. As those organi-
zations tend to be staffed by lawyers who have
been trained to accept law firm business practices
as a natural part of the profession, it has not yet
occurred to any of them to investigate their fellow
lawyers.
The Federal Trade Commission Act prohibits
unfair or deceptive practices in or affecting com-
merce and defines unfairness as a practice that
causes or is likely to cause substantial consumer
injury to consumers which is not reasonably avoid-
able by consumers themselves and not outweighed
by countervailing benefits to consumers or to com-
petition.2 While the application of the deception
prohibition is fairly self evident, the meaning of
unfairness mav be more elusive. In its 1980 Policy
t 0
rve
la
Statement on Unfaimess, the Commission issued a
concise but descriptive explanation of the term. It
said:
Sellers may adopt a number of practices
that unjustifiably hinder such free market
decisions. Some may withhold or fail to gen-
erate critical price or performance data, for
example, leaving buyers with insufficient
information for informed comparisons ....
Some may engage in overt
coercion, as by disman-
tling a home appliance for
ccurred to any inspection and refusing
stigate their to reassemble it until a ser-
vice contract is signed ....
wyers, And some may exercise
undue influence over high-
ly susceptible classes of
purchasers, as by promoting fraudulent
cures to seriously ill cancer patients ....
Each of these practices undermines an essen-
tial precondition to a free and informed con-
sumer transaction, and, in turn, to a well func-
tioning market. Each of them is therefore
properly banned as an unfair practice under
the FTC Act .... [citations omitted]3
The standards against which these provisions are
measured may vary somewhat between state and
federal law. Traditionally, consumer laws were
believed to protect that vast multitude which
includes the ignorant, the unthinking and the credu-
lous,4 and many states still follow that standard. In
an October 14, 1983 letter to The Honorable John
D. Dingell, then Chairman of the House Committee
on Energy and Commerce, however, the
Commission wrote that it would consider a practice
Continued on page 4
November 1997
Volume 9
Issue Number 1](ViewImageLocal?handle=hein.journals/proflw9&div=1&collection=&method=preview&ext=.png&size=3)
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