From time to time I like to check in on Sick of Lawsuits, one of many fake grassroots tort-reform organizations set up by the Chamber of Commerce. They must have been in the Halloween spirit with the article they published October 31st, because while trying to trick the public, they treat us to their commitment to lies and half-truths in the service of their cause, which is limiting the access of ordinary Americans to relief from courts.
There article declares that "anything goes with personal injury lawyer ads." They go on to detail how there is absolutely no oversight for lawyer ads. Unlike every other good and service in our economy that is regulated by an organization like the Federal Trade Commission (FTC), the Food and Drug Administration (FDA), or some other regulatory agency, Sick of Lawsuits claims that no one regulates lawyer ads. Unfortunately for Sick of Lawsuits' argument, there are people who regulate how lawyer advertise, the State Bar. 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. In fact, in Texas there are 22 pages worth of regulations that lawyers have to follow in order to advertise.
Either the unnamed author of the Sick of Lawsuit article doesn't have the first clue about the ethics rules that govern lawyer advertising, or they're willfully lying to the public in order to push their agenda. Tort reformers and Sick of Lawsuits have been on a crusade this past year against what they believe to be unethical legal advertising. However, the way they portray the problem is that they, or anyone else, are powerless to do anything about unethical ads. This is designed to whip people into a frenzy, so that they'll back whatever part of the tort reform agenda Sick of Lawsuits and the Chamber of Commerce dream up next.
I plan to chronicle and correct the lies and distortions in Sick of Lawsuits' piece about attorney advertising. However, just doing that much doesn't address their underlying concern that some lawyer ads are unethical. Instead of just pointing out deception, I'll go the extra mile that the tort reformers won't, by pointing out how victims of deceptive advertisements can file complaints and stop unethical lawyer ads. (One of the benefits of working at a law firm is that I get to ask attorneys like Michael Grossman, Keith Purdue, or Cory Carlson what the relevant ethics rules are and they point me where I need to go.)
Some may wonder, what is the big deal? After all, tort reformers aren't the only groups who resort to lying to push their agenda. This is true, but what makes this a matter of such importance is that most groups are not pushing agendas that attack fundamental rights, guaranteed by the U.S. Constitution, like the right to have disputes settled by a jury of our peers. Further, when people spread untruths about the law and the practice of law, it undermines people's confidence in our most important institution. You don't have to work in the legal field to see that once people lose faith in the law, it erodes the bedrock foundation of our country as "a government of laws, not of men."
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.
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. He figures 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.
FTC and FDA regulation is so effective that we never see allegations of defective products like this, this, this, or even this.
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 actual resources designed to stop the practice. Believe it or not, private citizens have the means to solve this problem.
If you believe that a lawyer's ad violates ethics rules, your best resource is 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.
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.
I mention all of this not because I believe that there is an epidemic of dishonest advertising by lawyers, but because I realize that there are some people who think there is. Doesn't it serve those people and the public better to disseminate the tools to fix the problem instead of railing as the tort reformers do against it, while ignoring means to change it?
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.
For 3 decades, the Chamber of Commerce and tort reform front groups like the American Tort Reform Association (ATRA), Sick of Lawsuits, and various Citizens Against Lawsuit Abuse (CALA) groups have waged a campaign of disinformation. This latest piece for Sick of Lawsuits is just the latest salvo in a war of demonization, which is designed to protect business owners from the consequences of their actions. It's goal is to reduce the costs to businesses for their negligence.
The thinking behind this campaign is that if the Chamber of Commerce and its members can undermine the trust we place in our courts, we'll voluntarily vote to give away one of our most treasured rights, that of a trial by jury in civil matters. That their movement has stalled, and states aren't placing restrictions on damages and access to the courts as they were 10 years ago has made these people desperate. In that desperation they resort to ever lower means.
Since not every one has a family or religion, court access is the one institution of social cohesion that is open to every single individual regardless of belief or circumstance. Our courts are how we level the playing field without the dangerous and transformative social engineering projects of our friends in Europe and around the world. When folks like tort reformers seek to undermine or limit that institution, and they do so through lies and half-truths, it is the obligation of each citizen to do their part to expose these frauds for what they really are. Yes, lawsuits for negligent behavior cost Chamber of Commerce members significant amounts of money, but that pales in comparison to the price tort reformers seek to the extract from the rest of us in our most precious currency, our liberty.