In Search of Mass Tort Plaintiffs: Advertising and Its Impact on the Targeted Populations, Potential Jury Pools, and Our Clients.

AuthorHolmstrand, Jeffrey A.

MANY people see the television ads flashing warnings, the FDA logo, "recall" notices, and of course, the toll-free number to call for "more information." Fewer see the miniscule text (if, indeed, there is any such text) indicating the ads seek personal injury clients, often for mass tort litigation. This article briefly reviews the landscape of legal advertising and the First Amendment issues legal advertising raises. This article then turns to the world of masstort advertising and its potential effects, particularly the effects of those advertisements seeking clients for claims involving pharmaceutical products and medical devices. Finally, it concludes by describing recent efforts to mitigate some of the risks posed by these ads while respecting the recognized First Amendment rights of the advertisers.

  1. Background

    On September 24, 2019, the Federal Trade Commission announced it sent letters to seven undisclosed law firms and lead generators "expressing concern" that some television advertisements soliciting clients for personal injury lawsuits against drug manufacturers "may be deceptive or unfair under the FTC Act." (1) The FTC's concerns included possible misrepresentations of the risks associated with certain pharmaceuticals and the "false impression" that physician-prescribed medications had been recalled when they had not. (2) Several states have enacted or introduced legislation addressing the same concerns. These advertisements can have real repercussions: there is some evidence of patients discontinuing prescribed medications after viewing the advertisements and suffering adverse consequences. To appreciate how we have reached this point, it is useful to revisit the historical issues surrounding the advertisement of legal services.

  2. Legal Advertising and the First Amendment

    Attorney advertising has been around far longer than many may realize. Abraham Lincoln's firm advertised in the 1850's. (3) Attitudes changed over the next few decades, and by the early 1900's, ethical rules essentially banned all forms of advertising beyond business cards (and even those were simply "not per se improper"). (4) In 1963, the ABA issued an ethics opinion stating that lawyers could not send holiday greeting cards to clients or other lawyers but only to personal friends; and even there, the card could not identify the law firm or be signed in a way that identified the sender as a lawyer. (5) As the First Amendment's protections were originally not understood to extend to "commercial speech," (6) there was little reason to question the constitutionality of restrictions on legal advertising. A series of Supreme Court decisions would change all of that.

    In 1976, the Court decided Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. (7) and held some level of First Amendment protection extended to commercial speech. There, consumers challenged a statutory prohibition on pharmacists advertising prescription drug pricing. Plaintiffs claimed that they were entitled to receive information that pharmacists wished to advertise concerning the price of medication. As the majority opinion noted, "The 'idea' [the pharmacist] wishes to communicate is simply this: 'I will sell you the X prescription drug at the Y price.'" (8) Thus, the case squarely presented the question of whether the First Amendment's protections applied to purely commercial speech. The majority held that they did under the circumstances before it. (9) The majority opinion pointed out there was no claim the speech at issue was "false or misleading." This was important because:

    Untruthful speech, commercial or otherwise, has never been protected for its own sake. Obviously, much commercial speech is not provably false, or even wholly false, but only deceptive or misleading. We foresee no obstacle to a State's dealing effectively with this problem. The First Amendment, as we construe it today, does not prohibit the State from insuring that the stream of commercial information flow cleanly as well as freely. (10)

    The very next term, in Bates v. State Bar of Arizona, (11) the Court addressed one of the questions it reserved in Virginia State Board of Pharmacy and squarely held the First Amendment's protections extended to some forms of attorney advertising, overturning Arizona's categorical ban. It reiterated, though, that the protection would not extend to "[a]dvertising that is false, deceptive, or misleading." (12) The Court further held the First Amendment permitted "reasonable restrictions on the time, place, and manner of advertising." (13)

    The Court continued to flesh out the contours of the First Amendment protections for commercial speech in Central Hudson Gas & Electric Corp. v. Public Service Commission. (14) With respect to commercial speech that is neither false nor misleading, Central Hudson established a three-part inquiry. First, does the government assert a substantial interest in support of its regulation? Second, can the government demonstrate that the restriction on commercial speech directly and materially advances that interest? Finally, is the regulation narrowly drawn? (15) This basically established an intermediate level of Constitutional scrutiny for commercial speech. (16)

    In Zauderer v. Office of Disciplinary Counsel of Supreme Court, (17) the Court held the First Amendment protected a lawyer's newspaper advertisements soliciting clients with potential Dalkon Shield claims (including an accurate illustration of the device and an accurate description of the types of injuries allegedly caused by its use). The Court invalidated a public reprimand based on disciplinary rules that purportedly prohibited such content in legal advertising. The Court noted, "An attorney may not be disciplined for soliciting legal business through printed advertising containing truthful and nondeceptive information and advice regarding the legal rights of potential clients." (18) The application of the...

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