Predatory and Misleading Legal Advertisements: You’ll Know It When You See It By Gwyn Taylor Editor’s Note: Speaking of a family thing, this white paper was originally submitted as a research paper and has been edited for content/length. Ms. Taylor is a student at Baylor University and the daughter of FTA Board of Directors member J.W. Taylor. So, if you’re nervous about the next generation of leaders in the trucking industry, I think we’ll be in good hands. “Call me, Jim Adler, the Texas Hammer. A car struck my client, and he fractured his femur and tibia. I fought and got $788,00 for his wreck… get what you deserve!” This misleading legal advertisement relies upon the misuse of rhetoric by appealing to the emotions of injured and vulnerable potential plaintiffs. The lack of policy and enforcement of regulation allows for misleading advertisements like this one to manipulate the message and usurp overall justice. With such inflammatory rhetoric in these legal promotional materials, is it possible to determine if the message has been distorted? Some law firms utilize many strategies, such as clickbait and the reptile theory, in their advertisements to persuade their audience to reach a decision about hiring an attorney based upon fear and the threat of danger. Because of their deceptive nature, these misleading advertisements greatly impact people not just in the field of law, but also lay people and businesses due to asymmetric information, nuclear verdicts, and the overall trivialization of the judicial system. In order to avoid these negative consequences, each state Bar should adopt a policy like the ruling in the 20 | SUMMER 2021
U.S. Supreme Court case Jacobellis v. Ohio, which is “you’ll know it when you see it,” and enforce this policy to protect the people and the judicial system. This problem first arose when attorney advertisements were legalized in 1977 during the U.S. Supreme Court case Bates v. the State Bar of Arizona. John Bates and Van O’Steen, two lawyers from Arizona, offered their legal services at very low prices and wished to advertise their budget-friendly services. In February of 1976, these two lawyers published an advertisement in the Arizona Republic that stated “Do you need a lawyer? Legal services at very reasonable fees” and continued to list their services and prices. This action, which was strictly forbidden by the State Bar of Arizona, caused the Bar to recommend suspending the lawyers for at least six months. After appealing to the Arizona Supreme Court, this court upheld the previous verdict, so the lawyers took their case to the U.S. Supreme Court where the Justices decided that legal advertisements were classified as commercial speech and therefore protected by the First Amendment. The Supreme Court claimed that the allowance of law promotional material would benefit society by making services more accessible and improve justice. After hundreds of years of not permitting lawyer advertisements, this case singlehandedly legalized this kind of media and consequently created a market for misleading attorney advertisements. Three years after Bates v. the State Bar of Arizona, the U.S. Supreme Court established a four-part test to determine the constitutionality of restrictions on commercial speech in the case Central Hudson Gas and Electric v. the Public Service Commission of New York. The first qualification that commercial speech must satisfy is that of the First
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Amendment. In addition, this first qualification states that the commercial speech cannot be misleading or deceptive: “At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading”. Since Bates v. the State Bar of Arizona established that legal advertisements are protected under the First Amendment, the only qualification that attorney advertisements must satisfy is that the information is true and accurate. However, advertisements can contain accurate information and still mislead its audience through the use of emotional appeals and other strategies that manipulate the message. Even though this case does not directly involve attorney advertising, it holds importance because it determined the constitutionality of restrictions on commercial speech. Since 1977, law firms have been releasing legal advertisements that arguably contain misleading information, and it is each State Bar’s job to regulate these promotional materials. The Florida Bar most recently updated its “Handbook on Lawyer Solicitation and Advertising” on August 19, 2020. This recent update indicates that misleading legal advertisements are still a prevalent issue. According to this handbook, Rule 4-7.15(a) titled “Manipulative Appeals” defines an advertisement as misleading if it is “designed to solicit legal employment by appealing to a prospective client’s emotions rather than to a rational evaluation of a lawyer’s suitability to represent the prospective client”. Essentially, deceptive attorney advertisements rely on emotional appeals that are not rooted in logic or facts. An example of a manipulative appeal occurred when two lawyers from Ft. Lauderdale, Florida, utilized a pit bull as their logo and displayed the phone number
