Predatory and Misleading Advertisements

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 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 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

“1-800 PIT BULL” in their legal advertisements. These commercials resulted in the Florida Supreme Court disciplining the lawyers for violating the Florida Bar advertising rules. These advertisements specifically violated the rules because the pit bull had no correlation to the services provided by the law firm. Since the commercial did not indicate that this law firm specialized in dog bite cases, “the image and words ‘pit bull’ are intended to convey an image about the nature of the lawyers’ litigation tactics.” Because of this, the Supreme Court ruled that the advertisements improperly described the law firm’s services and was thereby not protected by the First Amendment. Even though this imagery is subliminal throughout this commercial, it conveys the message that these attorneys are fierce and will fight in court like a pit bull. Due to the Florida Bar’s regulation and enforcement, this manipulative appeal was removed, and the lawyers were disciplined for their actions. In addition, the Florida Bar conducted a survey in 2006 to support its petition for the Florida Supreme Court to amend advertising regulation. This survey asked participants if they believed that legal advertisements were accurate, and thirty-six percent of respondents stated that they firmly do not believe that these advertisements are accurate, and thus misleading. Furthermore, seventy-three percent of participants stated that lawyers should be required to submit their advertisements for review prior to airing or publication. This survey conveyed the people’s opinions regarding attorney advertising in Florida. The people overwhelmingly believed that legal advertisements were deceptive, and lawyers should be required to receive approval for their advertisements. In order to more effectively persuade their audience, law firms often insert clickbait in their advertisements and utilize a strategy known as the reptile theory to influence its audience towards hiring the firm. Clickbait, which originated in journalism, is a strategy where companies intentionally design advertisements so that they attract attention and encourage the audience to click on the ad, a situation which leads to increased publicity. A well-known caveat regarding this strategy is that the content is usually misleading and deceptive. The three aspects that would qualify an advertisement as clickbait are the deliberate omission of important information from the headline, exaggeration, and the utilization of techniques that are created to generate curiosity gaps. Based upon these qualifications, misleading legal advertisements can be considered clickbait because they omit important information, exaggerate, and use techniques that create curiosity gaps. Clickbait from misleading legal advertisements has become such a problem that many companies have to take the initiative to stop the spread of deceptive information. In June 2020, Google updated its advertising policies regarding misrepresentation, and many sources suggest that these policies were enacted due to misleading legal advertisements. Google explicitly states that clickbait is the “use [of] negative life events such as death, accidents, illness, arrests or bankruptcy to induce fear, guilt or other strong negative emotions to pressure the viewer to take immediate action.” Another strategy that law firms employ in misleading advertisements is called the reptile theory. This strategy, which is typically used in litigation, activates the juror’s survival instincts so that they will reach a decision based upon fear rather than logic. The reptile theory relies upon establishing a danger within the community, which is the defendant, and relays that the jurors have the power to protect their community and eliminate the danger. Even though the reptile theory is typically utilized in litigation, this strategy can also be seen in misleading legal advertisements, especially in commercials. Regardless of whether the audience is jurors or simply people watching a commercial, this theory relies upon its audience making a decision based upon fear and the threat of danger. To achieve this kind of persuasion, misleading legal advertisements often use negative life events to influence the audience towards quickly taking action instead of rationally evaluating the lawyer’s credentials and their ability to provide legal guidance. As seen through the use of clickbait and the reptile theory, the goal of deceptive attorney advertising is to convince the audience to hire the lawyer through any means possible. The overall result of misleading legal advertisements is the trivialization of the judicial system. Asymmetric information, frivolous lawsuits, and nuclear verdicts all factor into the discrediting of the justice system. The lottery-like legal advertisements have conditioned society to think that the court system is trivial and meritless. This leads to a carnival mentality, which creates a cultural atmosphere that desensitizes the audience to the search for truth in the judicial system, thereby averting justice and impacting the audience through manipulating the message. One of the biggest goals of advertising is for the audience to retain information from the advertisement. Misleading legal advertisements rely on deceptive tactics in hopes that the audience will remember what they saw. In order to effectively promote their law firm, attorneys often resort to these kinds of misleading advertising so that the audience will hopefully remember the content of the advertisements. Consequently, this all results in the trivialization of the judicial system because these ads are not rooted in truth and justice. Through using the “you’ll know it when you see it” method, it is possible to determine whether the message within legal advertisements has been distorted. Once the distorted message is identified, then change can be enacted through petitioning the state Bar and raising awareness within communities. This method will cause the number of misleading advertisements to decrease, therefore eliminating the negative consequences that impact everyone. Remember, you’ll know it when you see it, and when you see it, do something about it.