October 12, 2017

ABA president addresses issues surrounding lawyer advertising

ABA President Linda A. Klein, responding March 23 to an inquiry from House Judiciary Committee Chairman Bob Goodlatte (R-Va.), said that a working group of the ABA Standing Committee on Ethics and Professional Responsibility is reviewing the issue of attorney advertising.

Goodlatte’s request for information was prompted by a recent resolution adopted by the American Medical Association that supports a requirement that attorney commercials that may cause patients to discontinue medically necessary medications have appropriate warnings that patients should not discontinue medications without seeking the advice of their physicians. He asked the ABA president to describe the steps the association is taking to address these types of ads, including possible amendments to the association’s Model Rules of Professional Conduct.

“The ABA, of course, does not sanction misleading or untruthful advertising – by lawyers, doctors, pharmaceutical companies or anyone else,” Klein wrote.

She said the review by the ABA working group is based on a report by the Association of Professional Responsibility Lawyers (APRL), which has recommended making state rules more uniform and focusing on the “’false and misleading” standard. A 2015 APRL report, which found that complaints about lawyer advertising are rare and usually made by other lawyers, recommended that lawyers should not be subject to discipline for “potentially misleading” advertisements.

The working group is focusing on three points.

•Many people are injured or killed each year from taking prescription drugs and would benefit from having a lawyer help them or their families determine whether they are entitled to compensation for the harms caused, and they might not otherwise know where to turn were it not for a lawyer’s advertisement.

•The Supreme Court held in 1977 that the right of lawyers to advertise is protected as commercial speech under the First Amendment. A compelling interest would have to be found by state supreme courts and the ABA Model Rules to regulate advertising beyond a concern that some members of the public might misunderstand an advertising message that is not misleading.

•Every state already has a rule prohibiting lawyer advertising that is “false and misleading” and a version of Model Rule 8.4(c) that prohibits lawyers from conduct that involves “dishonesty, fraud, deceit or misrepresentation.”

“While the AMA resolution and explanation state that attorney ads have the potential to frighten people and thus cause them to discontinue taking their medicine, it does not allege that those ads are false, misleading or deceptive,” Klein said. She explained that there is a procedure for filing a complaint against specific lawyer advertising within each state's disciplinary agency.

 

 

Back to the April 2017 Washington Letter