The ABA/BNA Lawyers’ Manual on Professional Conduct™ is a trusted resource that helps attorneys understand cases and decisions that directly impacts their work, practice ethically, and...
By Samson Habte
Members of the U.S. House’s judiciary committee heard competing testimony June 23 about whether Congress should step in to regulate what one witness described as “1-800-BAD-DRUG” attorney advertisements.
Proponents of congressional regulation say that these ads, in which plaintiffs’ attorneys solicit clients for drug product liability suits, have scared some patients into discontinuing vital medication regimens without consulting their doctors. But opponents say existing state advertising rules are sufficient to protect the public, and any congressional regulation could infringe upon state sovereignty and attorneys’ free speech rights.
The testimony was the latest development in an emerging fight that pits a segment of the plaintiffs’ bar against big drug makers and medical device manufacturers—and, more unusually, the American Bar Association against the American Medical Association.
The witnesses and legislators at the June 23 hearing focused most of their attention on one category of advertisements: television commercials soliciting clients for lawsuits against the makers and marketers of the blood thinner Xarelto.
Critics say the ads targeting Xarelto are misleading and dangerous. The drug’s manufacturer, Janssen Pharmaceutical, commissioned a 2016 study that said two people died and 28 others suffered serious medical problems after they saw the lawsuit ads and stopped taking Xarelto.
Pharmaceutical companies—and the AMA, which supports federal restrictions lawyer advertising—were cheered when the judiciary committee’s chairman, Rep. Bob Goodlatte (R-Va.), sent letters asking every state bar association to adopt self-imposed limits on drug ads. Those ads, Goodlatte said, should include disclaimers warning patients not to stop taking medications without consulting their doctors.
“Based on the responses we have received so far from state bars, it appears that there are few if any reported complaints of lawyer misconduct regarding these commercials,” Goodlatte said at June 23 hearing. “The lack of complaints, however, does not diminish the fact that severe injury and death resulting from these commercials are being reported to the Food and Drug Administration.”
But Democrats on the subcommittee, and a former bar official and legal ethics expert who testified before the panel, questioned the necessity of federal action and expressed concerns about the constitutionality of any congressional efforts to restrict the content of the advertisements.
“[T]oday’s hearing presents a new topic for us, but it’s old wine in a new bottle,” said Rep. Steve Cohen (D-Tenn.). “It’s another attack on trial lawyers. And the beneficiaries of this attack on the plaintiffs' bar are well-heeled corporate interests.”
Cohen also cited two potential constitutional restraints on congressional intervention on this issue.
Federalism principles were one restraint. “Regulation of lawyers has traditionally fallen within the authority of state supreme courts or state bars,” Cohen noted, and Congress would be “intruding on state sovereignty” if it tried to guide the work of state bar authorities or “attempt to intimidate them and to do some of [Congress’s] bidding.”
The First Amendment was another potential obstacle, Cohen said.
Lawyer advertising is protected commercial speech that under existing First Amendment doctrine may only be prohibited if it is “false or misleading,” Cohen said. There has been “little evidence” that the complained about ads are false or misleading, he said.
Lynda C. Shely, an ethics attorney and former bar regulator who practices in Scottsdale, Ariz., echoed Cohen’s concerns.
Shely said she “never once heard a consumer complaining” about attorney advertisements during her 24 years in the profession.
“Actually, I’ve not seen any doctors submit advertisements to the state bar complaining, and you all know that everybody has standing to complain about a lawyer ad—it does not have to be someone who’s been harmed,” said Shely.
“I ask that this committee simply submit any ads that you are concerned about to the appropriate state regulator so they can take appropriate action,” Shely said. “Because the current system does work in regulating against false and misleading advertising.”
Some witnesses took issue with the assertion that the drug ads, particularly those targeting Xarelto, were not false or misleading.
One of those witnesses was Dr. Shawn Fleming, a vascular surgeon who said he treated a patient who died after a frightening lawyer ad convinced him to stop taking the medication.
“[T]he tone and content of these advertisements imply a qualitative judgment about these medications that’s just not true,” said Fleming. “When you say call 1-800-BAD-DRUG, that clearly implies it’s a bad drug, which runs counter to current medical evidence and also to the FDA’s recommendations.”
“These advertisements imply a false choice, where patients can either decide to not take this medicine and be just fine, or take the medicine and potentially spontaneously bleed to death,” Fleming said. That is misleading because patients who don’t take the medicine “are more likely to die,” Fleming said, and “that is not ever mentioned in these commercials.”
Fleming said drug lawsuit ads also drive a wedge between doctors who prescribe the drugs and patients who see advertisements that imply the drugs are seriously dangerous.
“[I]f they believe that I have prescribed them a drug that may kill them, then six months later when I need to give them a different drug, they’re resistant,” Fleming said. “When I tell them I need to put them to sleep and do surgery on them, they’re resistant, because they no longer trust me.”
The witnesses at the committee hearing did include one member of the legal profession who largely sided with the doctors on the panel.
“[W]e cannot stick our heads in the sand and act as though these ads are the same as an ad for soap or for candy bars,” said Elizabeth Tippett, a University of Oregon law professor who has studied drug injury advertising.
Tippett said her research revealed that drug injury advertising has exploded. Approximately 53,500 drug ads were aired on national cable and broadcast networks in a one year period spanning July 2015 to July 2016, Tippett said, at a cost of about $114 million.
“Many of these advertisements were transparent about the fact that they were from a lawyer, and that they were trying to find people for a legal claim,” Tippett said. “But some of them were not.”
“Some of the ads looked essentially like a dystopian public service announcement, and had language like ‘consumer alert,’ and ‘medical alert,’ and ‘warning,’” Tippett told the committee. “And sometimes from these ads it was difficult to tell if they were sponsored by a lawyer.”
Linda A. Klein, the president of the ABA, issued a lukewarm response to Goodlatte’s proposal after receiving his letter.
In a March 23 reply letter, Klein raised three issues: the potential benefits that the much-criticized ads hold for the “many people [who] are injured or killed each year from taking prescription drugs”; the First Amendment restraints on limiting lawyer advertising; and the fact that “false and misleading ads are already regulated.”
In her committee testimony, Tippett acknowledged that even if state bars were willing to do more to regulate these ads, they might run into some difficulty “because the entities that sponsor the advertising are different from the lawyers who litigate these claims.”
“And part of the solution may be to have an impartial rating system for advertisers, so the lawyers who are litigating these claims can vote with their dollars and choose their referrals from advertisers that are the most ethical,” Tippett said.
“As attorneys we have the privilege and duty of self-regulation, and I don’t think we have taken that duty seriously enough,” Tippett said. “We need to invest more time and resources to understanding and addressing this problem.”
To contact the reporter on this story: Samson Habte in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: S. Ethan Bowers at email@example.com
Copyright 2017, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)