By Michael Flanagan
The Canons of Ethics have long governed how lawyers advertise for clients, evolving to meet professional and client needs. Legal advertising was largely prohibited until the 1977 U.S. Supreme Court ruling in Bates v. State Bar of Arizona, which protected lawyer advertising under the First Amendment while requiring it to be truthful, not deceptive, or misleading. Over the past five decades, legal advertising has expanded, with self-regulation prevailing within these boundaries.
However, in areas like class actions and mass tort litigation, the “don’t mislead” standard from Bates is insufficient. States have increasingly relaxed regulations, allowing more permissive attitudes toward advertisements. This shift risks significant harm when law firms solicit plaintiffs for lawsuits. For example, ads highlighting rare side effects of medications may lead patients to discontinue treatment without medical advice, endangering their health. Such campaigns intrude on the doctor-patient relationship and pose direct risks to consumers.
Despite these dangers, legal professionals have shown little willingness to self-regulate. The financial incentives for class-action lawsuits—often funded by third parties with competing interests—have fueled an explosion in advertising. In 2021 alone, over $1 billion was spent on mass tort litigation ads. This trend underscores the urgent need for updated ethical standards and stricter oversight.
While state bar associations have largely ignored these issues, lawmakers are beginning to act. Recent legislative efforts in Florida, Kansas, South Carolina, and Louisiana reflect growing concerns. President Trump’s recent directive targeting pharmaceutical advertising highlights the broader need to address similar abuses in legal marketing. If lawyers refuse to hold themselves accountable, legislators must step in to protect public welfare.
The trial bar has operated with minimal constraints for years. It is time to enforce stricter ethical guidelines and limit the influence of unchecked advertising in mass tort litigation.
