Earlier this week, on Monday, June 22, 2009, the American Bar Association (ABA) President H. Thomas Wells, Jr. issued a public statement urging Congress and the FTC to exempt lawyers from the requirements of the federal Red Flags Rules, stating:
The Rule, adopted under the Fair and Accurate Credit Transactions Act, or FACT Act, is noble in its intent. However, the Commission’s application of the Rule to lawyers is unnecessary and not supported by law. Lawyers are not engaged in the type of commercial activity that Congress was attempting to regulate with the FACT Act and should not be considered creditors under the Red Flags Rule.
In support of this position, the ABA President references federal caselaw suggesting that lawyers are not "creditors" under federal law and suggests that forcing lawyers to comply would be costly and pointless. "Compliance with the Act would complicate client arrangements and require a major commitment of lawyers’ time, yet the FTC has failed to identify a single case of identity theft in the legal service context, suggesting that such a scenario is far-fetched, if not impossible."
As we reported in our earlier post on this topic, the ABA has been considering what action to take since it asked the FTC to delay enforcement of the Red Flags Rules in April and the FTC complied, postponing broad enforcement until August 1, 2009. The ABA statement further suggests that the ABA may already be lobbying Congress behind the scenes to relieve the legal industry from the burden of compliance.