Attorney Advertising: The Good, the Bad, and the Ugly

If it seems there are more billboards advertising legal services on our highways and in our cities, it’s because there are. The number of radio spots and outdoor ads taken out by individual attorneys and legal firms has soared by 260 percent since 2017. More than $2.5 billion was spent on 26.9 million ads in 2024 alone. In addition to billboards and radio, this type of advertising appears on fully wrapped city buses, television, phones, and the internet.

R Street research has identified attorney advertising as a driver of inflating civil litigation awards. All consumers end up bearing the costs of excessive court verdicts, judgments, and settlements, as insurance companies respond to such trends by raising liability insurance premiums across the board. At a time when insurance is deemed unaffordable in many areas, we don’t need out-of-control court awards exerting upward pressure on premiums.

This piece surveys the changing legal advertising landscape and proposes recommendations to prevent legal service advertising from pouring gasoline on a fire that raises plaintiff expectations for ever-increasing awards and distorts liability markets. 

The Good
Legal services advertising may have value for individuals seeking monetary compensation from parties that allegedly caused them harm. People in lower economic brackets who otherwise would not know where to find an attorney are the most likely to respond to these ads; meanwhile, insurance companies defending suits brought by third parties don’t typically find their outside panel counsel via billboards.

Like other categories of civil litigation, awards in personal injury suits can have three components: compensatory medical expenses and lost wages, non-economic damages (“pain and suffering”), and in rare cases, punitive damages. Attorney advertising contributes toward expectations for inflated numbers in the latter two categories, violating the notion that civil litigation is meant to compensate the plaintiff rather than punish the defendant. 

Legal services advertising was prohibited in the United States beginning in 1908, when the American Bar Association (ABA) condemned the practice as “undignified.” During this time, the only permissible advertising practice was distributing business cards or pens featuring a law firm’s name and specialties.

This changed in 1977, when the landmark Bates v. State Bar of Arizona decision allowed attorneys to advertise. The main argument was that legal services advertising constitutes commercial speech, “which serves individual and societal interests in assuring informed and reliable decision making, [and] is entitled to some First Amendment protection.” Other arguments supporting these ads included the notion that allowing attorneys to advertise would increase the number of attorneys, thereby stimulating competition and lowering legal services costs. 

The ABA now recognizes some benefit to attorney advertising; however, it does offer cautionary notes on the practice, maintaining that misleading, deceptive, undignified, unprofessional ads sully the judicial system’s reputation. Free speech does not mean untrammeled speech. 

While critics of certain forms of legal advertising maintain it has cheapened the legal profession, others argue it has democratized access to justice. Harlan Schillinger, “the grandfather of legal advertising” and one of the handful of attorneys who began advertising immediately post-Bates, holds that we must “give access to the courtroom for the little guy.” 

The Bad
Traditionalists like Schillinger maintain that today’s competitive environment should drive attorneys to focus on compassion, credibility, and taking care of their clients. However, these qualities are hardly in evidence in many legal services ads, most of which emphasize money and appeal to a prospect’s greed. This has resulted in a race to the bottom, with television ads like this one from a Philadelphia firm:

“After my accident, I called one law firm. They told me they was gonna give me justice. I’m like — wrong answer. I ain’t looking for justice. I’m looking for money. And lots of it. I hung up on ’em, called TopDog Law.”

Among the most offensive legal services ads was one in the Alabama market that featured a racist caricature. While it is over a decade old and no longer on television, it does live on the internet (though we will not link to it here).

New Vistas in Attorney Advertising
Whether via call centers or outdoor signs, the purpose of attorney advertising is to increase intake. Call centers with intake specialists paid on the order of $20/hour vet incoming calls stimulated by advertising and send qualified prospects to a law firm that uses their services. While this business model continues to generate potential clients, the internet has made new forms of marketing possible. These include blogs, podcasts, and in some states, “live person-to-person contact,” which includes text messaging. Pennsylvania recently tightened its rules for professional legal conduct, one of which now implements controls on unsolicited text messages. 

Among the most powerful of the new models is search engine optimization (SEO). SEO entails tweaking websites to appear at the top of a search list to attract more internet traffic. SEO is so powerful that many law firms are shifting some of their marketing budget to fund it. 

States have legal grievance or disciplinary committees that review allegations of ethical violations of acceptable practice, such as exaggerating what the advertiser can do or promise. Here’s a list of violations that led to disciplinary action in North Carolina as an example:

• A television ad implied that insurance companies cheat in claim adjusting by showing someone cheating at poker. 
• A newspaper ad for a mortgage lawyer falsely guaranteed that buyers would pay no closing costs.
• A phone book ad for a law firm declared it had been serving customers “for over 40 years” even though it had not existed for that long. (The number actually came from the combined 40 years of experience among its attorneys.)
• A newspaper ad listed a toll-free phone number and a list of four cities where the firm claimed to have offices. The ad ran in all four cities; unfortunately, no offices existed there.

These violations led to mild admonitions (e.g., letters of caution), which declare a lawyer’s conduct improper without limiting their right to practice. The relative lack of consequences for running deceptive, misleading, and false ads only contributes further to their outrageous quality.  

The Ugly
One of the most compelling arguments against untrammeled attorney advertising is the fact that some ads have led to unnecessary deaths. In these cases, attorney ads misled people whose doctors had prescribed a certain drug into believing that the drug would harm them. Individuals who subsequently stopped taking the drug experienced various adverse consequences, including death.

Two physicians testified as expert witnesses at a 2017 hearing of the House Judiciary Subcommittee on the Constitution and Civil Justice titled “Examining Ethical Responsibilities Regarding Attorney Advertising,” sharing the stories of patients whose medical conditions worsened as a result of stopping medications. In letters to federal and state bar associations, Judiciary Chairman Bob Goodlatte opined that “much of this advertising is designed to frighten patients” and argued that patients should be warned not to discontinue medication without advice from their physician. Since then, the Food and Drug Administration has issued more warnings for pharmaceuticals.

In a 2017 survey, 25 percent of respondents said they would stop taking a prescribed medication portrayed critically in a legal ad without informing their doctor. A majority of respondents taking one of 12 medications targeted for lawsuits and/or mentioned in ads reported concerns about their safety.

Solutions
The torrent of attorney advertising unleashed by Bates has had some unintended (and undignified) results, ranging from cheapening the legal profession with offensive ads to misleading people into expecting enormous legal awards. Rule 7.1 of the American Bar Association’s Model Rules of Professional Conduct holds that legal services advertising may not be “false or misleading.” Here are four suggestions for adding guardrails to this practice:

• State Grievance Committees should step up and penalize attorneys whose ads are deceptive, misleading, or false.
  
• States should enact similar legislation to Texas’ SB 1189 and related laws in Florida and Louisiana that prohibit legal advertising from being presented as a medical alert, health alert, consumer alert, or public service announcement.

• States should also raise awareness of the lack of correlation between ad volume and legal service quality due to mass advertising and SEO, following Georgia’s example of tort reform and measures to educate the public about legal system abuse.

• Law firms should reject non-attorney ownership. According to Attorney Rule of Professional Conduct 5.4, all American law firms (except those in Arizona and Utah), must be owned by attorneys. This prevents outside investors from interfering with attorney-client privilege.

With reforms such as these, it may be possible to apply the brakes to unseemly, deceptive advertising that has turned our courts into a casino where plaintiffs seek outsized awards that are borne by consumers

The dissents in Bates by Chief Justice Warren E. Burger and Justices Lewis F. Powell Jr. and William H. Rehnquist are worth noting for their prophetic quality. Burger warned that the majority’s decision “will only breed more problems than it can conceivably resolve.” Joined by Justice Potter Stewart (best remembered for his definition of obscenity: “I know it when I see it”), Powell opined that Bates “will effect profound changes in the practice of law, viewed for centuries as a learned profession.” Indeed, the Bates decision allowed attorney advertising content to degenerate into a race to the bottom. Now 48 years on, it looks like the dissenters were right.