There are a little less than 40 days until Christmas, so I decided to look under the Sick of Lawsuits (SoL) Christmas tree to see what they’re giving folks for the holidays. In an unsigned scrawl from October 31, 2016, our tort-reform friends blast a headline that screams, “Anything Goes With Personal Injury Lawyer Ads.”
What results is a torrent of half-truths, faulty logic, and a general misunderstanding of how the regulatory framework surrounding different types of advertising works. Moreover, the anonymous scribe at SoL conveniently ignores the fact that legal advertising is heavily regulated by the State Bar of Texas, or the relevant state bar association, depending on where you live. In many instances, State Bar rules for legal advertising are more strict than similar rules for service providers in other fields or manufacturers of goods.
Don’t get me wrong, I’m not naive enough to think that all advertising in the legal community is ethical or above board. There are attorneys who cross lines and break rules in their advertising, but guess what? The State Bar of Texas has a process set up to resolve these grievances and hold bad actors accountable.
At Grossman Law Offices we believe in the ethical practice of law and that unethical attorneys should answer for their behavior. In that spirit, we’re more than happy to direct people to the Grievance Information Helpline, which those who suspect that an ad violates ethics rules can call at (800) 932-1900. For a full run-down of the grievance rules in Texas, check out the Bar’s grievance brochure.
Sick of Lawsuits and other Chamber of Commerce backed tort-reform groups have had a campaign for a good portion of this year attacking attorney advertisements. Some people may argue that attempts to restrict attorney advertising is an attack on free speech. Those people would be wrong, because we have long differentiated between political speech and commercial speech. The former is held to the strictest scrutiny in our court system, while courts have held that the latter can be regulated in a reasonable manner.
1st Amendment considerations aside, it is important to counter the lies and distortions of groups like SoL, because the public outrage they attempt to manufacture, along with the money the raise off of such outrage, ends up funneled to politicians who restrict our access to the courts and the freedom of juries to decide appropriate compensation based upon the facts in a given case. The purpose of these rules is to shield large swaths of industry from the consequences of their negligence when they break the rules.
How Sick of Lawsuits Gets Legal Advertising Wrong
Our tort-reforming friends are purportedly up in arms that the regulation of legal advertising is not done by some federal agency like the Federal Trade Commission (FTC) or in the case of prescription drugs, the Food and Drug Administration (FDA). According to Sick of Lawsuits, if an agency like the Federal Trade Commission was involved then legal advertisements would have to:
Be truthful and non-deceptive
Have evidence to back up claims
Not be unfair, and
Include only accurate testimonials that disclose any information that might influence buyers
The funny thing is that each and every one of these requirements is part of the advertising rules enforced by the State Bar of Texas. In fact, in many instances the requirements of the Bar far exceed those of the federal trade commission.
For example, many products and services use testimonials from former clients or users of a product. Most of the time testimonials for products or services are either procured through paying participants in the ads or hiring professional actors. The FTC requires that companies who use these techniques disclose that those giving the testimonials are paid or being portrayed by actors.
If that is the standard that tort-reformers would like to see applied to attorneys, they’re advocating for even looser rules than what lawyers already are subject to. The State Bar of Texas strictly regulates the use of actors in legal ads. The lawyer you see on a television ad has to be practicing and planning to litigate the cases he is advertising for. If they aren’t, it has to be clearly stated that they’re an actor and not an attorney. If you ever wonder why a less than photogenic lawyer doesn’t just hire someone to portray him, now you know why. The use of actors to portray clients is strictly prohibited.
Rule 7.02(a)(7)[A communication is false or misleading if it:] uses an actor or model to portray a client of the lawyer or law firm.
Paragraph (g) prohibits lawyers from misleading the public into believing a nonlawyer portrayer or narrator in the advertisement is one of the lawyers prepared to perform services for the public. It does not prohibit the narration of an advertisement in the third person by an actor, as long as it is clear to those hearing or seeing the advertisement that the actor is not a lawyer prepared to perform services for the public.
Unlike other advertising, legal advertising is also held to a higher standard regarding what is the truth. Unlike FTC regulations, which only concern themselves with whether or not the content of an ad is truthful, attorneys in their advertising not only have to be truthful, but also have to be completely truthful. What I mean by this is that if you sell a normal product, as long as their isn’t something factually incorrect in your claims, you’re in the clear. If you’re an attorney, even if your statements are all correct, if you omit something that changes the meaning of your advertisement, you’ve violated the Bars advertising rules.
For example, let’s suppose a lawyer obtains $500,000 dollars in a settlement for a client. They figure that this will be an advertising coup and he wants to advertise the verdict. The default position of the bar (Rule 7.02(a)(1)(i-iv)is that “A communication is false or misleading if it: (2)contains any reference in a public media advertisement to past successes or results obtained unless(emphasis added):
(i)the communicating lawyer or member of the law firm served as lead counsel in the matter giving rise to the recovery, or was primarily responsible for the settlement or verdict,
(ii)the amount involved was actually received by the client
(iii)the reference is accompanied by adequate information regarding the nature of the case or matter and the damages or injuries sustained by the client and
(iv)if the gross amount received is stated, the attorney’s fees and litigation expenses withheld from the amount are stated as well;
Put more simply, an attorney has to check off all of those boxes if she wishes to advertise a verdict. That’s just the start though. An attorney is not allowed to intimate that they can obtain more compensation through unlawful or unethical means and they have to be clear that the facts of each case are independent, so past compensation cannot be used to gauge what a particular case is worth.
The SoL folks point out that the FTC and FDA ensure the truthfulness of advertising, even going so far as to highlight the rigorous testing that the FDA requires for efficacy claims. The problem is that they fail to mention who supplies this information to the FDA. In most instances, it is the manufacturer of the drug or medical device. This is why we often see stories of drugs that have been marketed for years, like Xarelto, having undisclosed side effects that result in litigation.
Favoring one set of rules for your business and a different set for others has a name, hypocrisy.
It’s not that the FTC or FDA didn’t do their jobs in these situations, it’s that the companies being regulated provide all of the relevant data. If one stops to think about the situation for a second, there really is no alternative. In a country that produces over $17 trillion worth of goods and services every single year, a government agency that could effectively monitor every claim made in the marketplace would be impractical and a serious constraint on the economy, due to the long time it would take to obtain regulatory approval for advertisements.
Even in this area, lawyers exceed others in the marketplace for the scrutiny their advertising faces. Almost every single radio, television, magazine, and billboard ad is subject to approval by the state bar. No other industry that I am aware of is subject to such regulation. While some may scoff at the notion of lawyers regulating themselves, in practice the system works very well. Lawyers are loathe to see a competitor gain an advantage by breaking the rules. That is why the bar association makes such strict rules and enforces them.
I am fairly certain that the business folks over at SoL and their Chamber of Commerce backers would scream bloody murder if their advertising were subject to the same scrutiny that lawyers face. Favoring one set of rules for your business and a different set for others has a name, hypocrisy.
Fighting Back Against Dishonest Lawyer Advertisements
If the folks at Sick of Lawsuits are interested in cleaning up what they perceive to be the dirty practices of lawyer advertising, they would do well to direct people to the Bar’s Grievance Hotline (800-932-1900, if you missed it earlier) and encourage people to file complaints regarding objectionable advertising.
SoL waged a campaign against attorney advertising dating back to January of this year. One has to ask, what do they have to gain from it? Surely they don’t believe that absent advertising there would be fewer lawsuits against their members? After all, even if one were to greatly restrict lawyer advertising more than it already has been, the word is already out that when you’re injured an attorney may be able to help you deal with any legal issues arising from that injury.
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I agree with folks at Sick of Lawsuits and other tort reform organizations that misleading lawyer advertisements is a problem that should be fought (personally, I’d extend the fight to all dishonest advertising, but that might come back to bite some Chamber of Commerce members). I don’t agree that the problem is as bad as they claim it is, but whatever the case may be, the only way we’ll truly tackle the problem is if those who are targeted by ads report ads they believe to be misleading.
What makes the Sick of Lawsuits piece dishonest is that from reading it, one would gather that ordinary citizens are powerless to stop misleading advertising. This is simply not true. People have the power to force the Texas Bar to more closely scrutinize advertising. I believe that the best among us use their platforms to show people how to make a difference if that is their inclination. The worst recklessly cultivate a sense of powerlessness and despair. The latter groups are the ones who say that problems don’t have solutions. They’re too big for the average Joe to tackle.
An engaged citizenry could make life so miserable for lawyers who engage in improper advertisement that they would be driven out of practice. The Texas Bar takes grievances seriously. Each and every one is given due consideration and when the circumstances merit it, lawyers are subject to sanctions, including possible disbarment. There are few other areas of American life where the penalty for misleading advertising can include the loss of one’s ability to make a living. I’m not suggesting that the State Bar of Texas regularly disbars attorneys for misleading advertising, but that nuclear option is always on the table.
If you believe that you have witnessed false advertising from an attorney, you could read the piece over at Sick of Lawsuits and wonder what it is that you can do, or you could report the ad to the State Bar of Texas who will helpfully talk you through the grievance process. In case you missed it, the number is (800) 932-1900.
The post Does Anything Really Go With Personal Injury Lawyer Ads? appeared first on Grossman Law.