The Canons of Ethics have long governed the way lawyers advertise for clients, evolving as necessary to best serve the needs of the profession and its clients.
In fact, legal advertising was largely prohibited until Bates v. State Bar of Arizona, 433 U.S. 350 (1977), when the U.S. Supreme Court decided that lawyers could advertise their services.
The ruling recognized that the First Amendment protects lawyer advertising and held that states can't constitutionally prohibit a lawyer's advertisement for fees for routine legal services, but it also required that the communication is not false, deceptive or misleading.
Over the past 50 years or so, as legal advertising has increased, it has been largely self-regulated within the broad bounds of the Bates decision.
However, in the areas of class actions or mass tort litigation, the "don't mislead" standard in Bates is no longer adequate. States (usually in the person of State Bar Associations) have trended to less regulation and a more permissive attitude concerning advertisements.
As a result, a broader standard requiring more than mere truthfulness is required, as lawyer advertisements now have the potential to do real harm when casting about for class action plaintiffs.
We've all seen the ads telling of some horror in the well-being of a taker of a prescribed medicine which has an unusual side-effect.
A law firm will advertise, asking the sufferers of the side-effect to contact them while they build the class to sue the manufacturer.
The listener to the advertisement may develop a natural aversion to the medicine fearing that the side-effect may afflict them.
Without a physician's advice, the person taking the medicine may stop taking it on their own initiative endangering his or her health.
This effect certainly tramps on the grounds of the physician — however unintentional this may be. This can also be a direct harm to the viewer of the advertisement.
One might hope that the lawyers will self-regulate their actions and be extra careful when talking about patients and their medicines.
But the allure of the huge dollars coming with a successful class action suit makes the space very desirable and competitive among law firms.
Chances will be taken.
Also, the trending specter of third parties funding lawsuits and the advertising that build those suits is increasingly real.
These third parties fund possible class actions against drug manufacturers for business reasons, competitive advantage, or just plain greed as they seek to secure a big payday.
With this backing, the amount of advertising that can be purchased to recruit plaintiffs can increase considerably.
In fact, one billion dollars were spent in 2021 on advertising related to mass tort litigation. Clearly, this is not a small, side issue of only esoteric importance.
It's a large dollar situation.
Given the money involved and the fact that lives are literally at stake, the canons of ethics of the legal profession require updating in this area. In fact, they have required a comprehensive approach for a long while.
But there are no discernable efforts within the legal profession to curb any of these ills – especially with regards to class action advertisements regarding prescription drugs.
State bar associations haven't aggressively developed standards and practices for this type of advertisement, so it appears that lawmakers will have to intervene to protect the consumer.
State legislatures in Florida, Kansas, South Carolina, and Louisiana all had some form of legal advertising restrictions moving during recent legislative sessions.
Federal reforms have also been periodically discussed by Congress and there may be an opportunity for the White House to step up and tackle the advertising problem.
In fact, on Sept. 9, of this year, President Trump issued a White House memorandum directing the secretary of Health and Human Services (HHS) to crack down on pharmaceutical advertising.
The focus was limited to drug company marketing, but the rationale behind the action should sound familiar.
The White House cited concerns that these ads mislead the public, intervene in the doctor-patient relationship, and present materially incomplete information.
Those criticisms apply even more forcefully to legal advertising — especially in the mass tort space — so President Trump would do well to extend his consumer protection efforts to include attorney advertising as well.
For too long, attorneys have operated in a permissive advertising environment with little accountability—and they've shown no appetite for change.
The legal profession has had decades to police its own excesses and has chosen not to.
If lawyers won't act, lawmakers must.
States are already starting to move, and with President Trump leading the charge on pharmaceutical advertising reform, there's a clear opening to do the same for legal advertising.
The trial bar has had a long leash. It's time to rein it in.
Mike Flanagan represented the 5th District of Illinois in the U.S. House of Representatives. For More of his Reports — Click Here Now.
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