The House Judiciary Subcommittee on the Constitution and Civil Liberties held a hearing June 23 to examine the issues raised by attorney advertising that is alleged to harm patients by leading them to discontinue their prescribed medications.
The hearing followed a request from House Judiciary Committee Chairman Bob Goodlatte (R-Va.) seeking comments from the ABA and 51 state bars regarding lawyer commercials.
During the hearing, Goodlatte acknowledged that based on the responses received by the committee so far, “it appears that there are few if any reported complaints of lawyer misconduct regarding their commercials.”
He added, however, that the lack of complaints “does not diminish the fact that severe injury and death resulting from these commercials are being reported to the Food and Drug Administration.”
Lynda C. Shely, immediate past president of the Association of Professional Responsibility Lawyers (APRL), testified that she agreed with the ABA and the state bars that existing rules regulating lawyer advertising are sufficient to protect the public from false and misleading claims.
“In brief, further regulation of lawyer advertising will not prevent misunderstanding by a few members of the public about advertisements that are neither false nor misleading,” she said.
Shely noted that APRL – a national organization of lawyers, judges, professors and in-house counsel – advises lawyers on legal ethics matters and recently made recommendations to the ABA for updating the ABA Model Rules of Professional Conduct.
Her testimony focused on state regulation of lawyer advertising, under which each jurisdiction has a rule prohibiting lawyer advertising that is “false or misleading.” A 2015 survey of all state lawyer regulation agencies found that the vast majority of the 34 responding jurisdictions confirmed that virtually all of the complaints about lawyer advertising were from other lawyers – not consumers.
Shely also pointed out that the 1977 Supreme Court decision in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), held that lawyer advertising is commercial speech protected by the First Amendment.
The House Judiciary Committee began examining the lawyer advertising issue after the American Medical Association adopted a resolution calling for new legislation or regulations requiring “…attorney commercials which may cause patients to discontinue medically necessary medications to have appropriate warnings that patients should not discontinue medications without seeking the advice of their physician…”
In the ABA’s earlier response to the committee in March, ABA President Linda A. Klein said that a working group of the ABA Standing Committee on Ethics & Professional Responsibility is reviewing the issue of lawyer advertising, including the APRL recommendations to make state rules more uniform. As part of that process, the ABA working group is considering possible revision of the ABA Model Rules of Professional Conduct governing lawyer advertising. In her letter, Klein also assured Chairman Goodlatte that the ABA “…does not sanction misleading or untruthful advertising – by lawyers, doctors, pharmaceutical companies or anyone else.”
Other witnesses at the hearing, including several physicians, called for more restrictions on lawyer advertising and cited instances where patients were harmed when they discontinued medications after seeing attorney advertisements about pharmaceutical side effects. Members of the subcommittee also discussed whether more oversight is needed over lawyer advertising and how advertisements could be improved to avoid consumer confusion, but so far no legislation has been introduced.