1. 2007 APRL Mid-Year Meeting Miami Beach, Florida February 9, 2007
BEYOND ETHICS & DISCIPLINE: REGULATING THE PRACTICE OF LAW VIA CONSUMER PROTECTION & DECEPTIVE TRADE PRACTICES LEGISLATION
2007 APRL Mid-Year Meeting
Miami Beach, Florida
February 9, 2007

2. A BRIEF HISTORY Federal Antitrust Legislation
Sherman & Clayton Acts
Section 5, FTC Act of 1914; amended in 1938
Little-FTC Acts
Most mirror language of FTC §5; courts instructed to follow federal precedent
Private right of action (except Iowa); treble/punitive damages and recovery of attorney’s fees in most jurisdictions

3. COMMON ELEMENTS “Unfair or deceptive acts or practices”
In “trade or commerce”
Intent sometimes required
In many jurisdictions, “capacity to deceive” is sufficient
Reliance not generally required (causation is)
Most courts require injury in fact
A few states impose a “public interest” requirement

4. STATUTORY “LEARNED PROFESSIONAL” EXEMPTIONS
No “learned profession” exemption in Sherman Act (Goldfarb, 1975)
Exempt by statute in some states; e.g.,
OH: exempts “transactions between attorneys and their clients”
NC: exempts “professional services rendered by a member of a learned profession”
MD: exempts “professional services” of specified professionals, including lawyers
Courts have applied “regulated professional” exemption provisions in a few states
Exempt by supreme court decision in IL & NJ

5. APPLICATION TO LAWYERS: POLICY ISSUES
Implied exemptions as “elitism”
Insufficiency of discipline system in protecting consumers
Mechanism to compensate clients victimized by their lawyers’ deceptive conduct
Separation of powers
Unconstitutional legislative intrusion on judiciary’s exclusive authority to regulate the practice of law and discipline lawyers?

6. MODERN TREND: LIMITED APPLICATION TO LAWYERS
Consumer protection statutes apply only to “entrepreneurial” aspects of law practice, not to “professional services” or “actual practice” of law
By supreme court decision in CT and WA
By statute in TX (indirectly): exempts claims based on “the rendering of a professional service, the essence of which is the providing of advice, judgment, opinion, or similar professional skill”

7. THE “EASY” ONES
Generally, consumer protection claims must be asserted by clients (i.e., not by adversaries or other third parties)
Statutes apply to lawyers’ separate or ancillary business activities
Generally, consumer protection statutes don’t apply to malpractice claims
BUT . . .

8. COLORADO: A SCARY PLACE
Crowe v. Tull, 126 P.3d 196 (Colo. 2006)

9. THE “HARD” ONES Advertising/Solicitation
Affirmative misrepresentations, puffing
Omissions, implied representations
Billing & Collecting Activities
Including advance fees denominated “nonrefundable,” “earned upon receipt”
Conflicts of Interest

10. LESSONS
Consumer protection law is an important part of the law of lawyering in almost every jurisdiction
Some troubling “outlier” cases
An evolving area of law, moving in the direction of expanded liability for business aspects of professional practice