Some law firms are utilizing clickbait, the Reptile Theory and other misleading advertising strategies to persuade their audiences to hire an attorney out of fear and threat of danger. You know it when you see it.
“Call me, Jim Adler, the Texas Hammer. A car struck my client, and he fractured his femur and tibia. I fought and got $788,000 for his wreck…get what you deserve!” (“Jim Fight Fight Fight”).
Misleading legal advertisements like this rely on deceptive tactics in hopes the audience will remember what they saw. People will remember a hammer, but what does a hammer have to do with law and justice? Since the hammer does not correlate to this attorney’s services, this advertisement is misleading because it relies on an emotional appeal — the hammer — instead of logic.
A lack of policy and enforcement of existing regulations has allowed some attorneys to manipulate advertising in ways that usurps and trivializes the justice system with asymmetric information. This is contributing to the rise of nuclear verdicts (in excess of $10 million) in the trucking industry.
Attorney advertisements were first legalized in 1977 in the U.S. Supreme Court case Bates v. the State Bar of Arizona. The Justices decided that legal advertisements were classified as commercial speech and protected by the First Amendment.
This landmark case gave law firms new leeway to release legal advertisements that arguably contain misleading information. To reverse course, each state Bar should adopt a policy similar to the ruling in the U.S. Supreme Court case Jacobellis v. Ohio for identifying misleading advertising: “you’ll know it when you see it.” This policy will need to then be enforced to protect the people and the judicial system.
The Florida Bar, for example, most recently updated its Handbook on Lawyer Solicitation and Advertising on August 19, 2020. In the handbook, Rule 4-7.15(a) titled “Manipulative Appeals,” now states that an advertisement is 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.”
