Forty-Six State Bars Join New York Bar in Red Flags Brief
Filing Supports American Bar Association Effort
The New York State Bar Association, along with 54 state and local bar associations, today filed an amicus curiae brief that supports the American Bar Association’s filing in American Bar Association v. Federal Trade Commission.
At issue is whether lawyers are considered “creditors” under the so-called FTC’s Red Flags Rule, and would thus be required to develop programs identifying, detecting, and responding to the warning signs (“red flags”) of identity theft.
Running the gamut from the Alabama State Bar to the Wyoming State Bar, the state and local bars signed as amici as a way of seeking to “serve both their members and their communities by preserving and enhancing the integrity and high professional standards of lawyers and thus promoting the administration of justice.”
American Bar Association President Stephen N. Zack hailed the widespread support. “This is a critical issue to lawyers and their clients across the nation. For so many state and local bars to come together is extraordinary. The reason for this exceptional unity is because the idea of applying red flags to law practice is so clearly wrong-headed.”
On Aug. 27, 2009, the ABA filed suit against the FTC in the U.S. District Court for the District of Columbia. On Oct. 29, 2009, the ABA’s motion for summary judgment for declaratory and injunctive relief from the Rule’s application to lawyers was granted. On Dec. 1, 2009, Judge Reggie Walton issued his full opinion in support of the ABA’s motion, the principal arguments of which are supported by the state and local bar amici.
The newly filed amicus curiae brief stated that adhering to the Rule, if it goes into affect and is applicable to lawyers, would be particularly detrimental to small firms and solo practitioners, “The burden to create such a plan will fall disproportionately upon small law firms and solo practitioner lawyers in this country who represent the great majority of clients and whose time and resources are already spent serving the needs of their clients.”
The state and local bars also emphasized the historical regulation at the state level of lawyer conduct and the “sacrosanct confidentiality of client financial information.”