Legal Advertising Crisis: Call for Updated Ethics in Class Action Ads

By Michael Flanagan

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, as legal advertising has increased, it has been largely self-regulated within the broad bounds of the Bates decision. However, in areas of class actions or mass tort litigation, the “don’t mislead” standard in Bates is no longer adequate. States (usually through State Bar Associations) have trended toward less regulation and a more permissive attitude concerning advertisements. As a result, a broader standard requiring more than mere truthfulness is needed, as lawyer advertisements now have the potential to do real harm when casting about for class action plaintiffs.

Examples include ads detailing horrors of prescribed medicines with unusual side effects, prompting listeners to stop medications without medical advice and endangering their health. This tramples on the physician-patient relationship and causes direct harm. While lawyers may self-regulate, the lure of huge profits in class actions has led to increased competition. Third parties funding lawsuits further amplify this issue, as seen in the $1 billion spent on mass tort litigation advertising in 2021.

The legal profession’s ethics canons require updating in this area, yet no discernible efforts exist to curb these issues, particularly regarding prescription drug class action ads. State bar associations have not developed clear standards, leaving lawmakers to intervene. Recent legislative moves in Florida, Kansas, South Carolina, and Louisiana highlight growing scrutiny. Federal reforms have also been discussed, with President Trump’s recent memorandum targeting pharmaceutical advertising. While focused on drugs, the rationale applies equally to legal advertising, which similarly misleads the public and disrupts medical decisions.

For too long, attorneys have operated in a permissive environment with little accountability. If lawyers won’t act, lawmakers must. States are already moving, and with federal attention on advertising reform, there’s an opportunity to address legal ads as well. The trial bar has had a long leash—now is the time to rein it in.