By: Jarrad Wright
When the U.S. Supreme Court decided the seminal case of Bates v. State Bar of Arizona, 430 U.S. 350 (1977), that held that lawyer advertisements were protected by the First Amendment, it would have been hard to imagine our modern world where television, print and online advertisements from lawyers inundate audiences. Today, audiences routinely are exposed to lawyer advertisements in topics that range from taxes to personal injury to mass tort litigation, and everything else in between. The exponential growth of lawyer advertisements have also caused an equally expanding and changing array of restrictions on those advertisements from state legislatures, bar associations, and courts. This field is every changing and lawyers must tread carefully to ensure that they do not overstep their bounds.
Recently, in Recht v. Morrissey, 32 F.4th 398 (4th Cir. 2022), the Fourth Circuit Court of Appeals reversed the district court and upheld West Virginia’s new law restricting what can be said in lawyer advertisements involving pharmaceutical products. West Virginia and other states, including Texas and Tennessee have enacted various limitations on what can be and cannot be included when a lawyer advertises in cases involving prescription drugs. In the case of the West Virginia statute, advertisements were restricted from using the phrases “consumer alert” or “health alert”. In addition, the state statute limited the use of the word “recall”. Specifically, the statute only permits the use of the word “recall” in the pharmaceutical context when a product had actually been ordered recalled by a government agency or was being recalled by agreement between a manufacturer and a government agency. As such, the term cannot be used when addressing voluntary recalls. The purpose of the statute is to prevent consumer confusion as the average consumer may not be aware of such distinctions. Similarly, the statute prohibits lawyer advertisements to include the logo of a government agency to prevent consumers from believing that the law firm is endorsed by such an agency. Finally, the statute requires advertisements to contain a warning that people should not discontinue using prescribed medications without first consulting with a doctor.
While the district court granted summary judgment on the grounds that such consumer protections violate an attorney’s free speech rights under the First Amendment, the unanimous Fourth Circuit disagreed. The Fourth Circuit explained that the Supreme Court’s strict scrutiny standard is “improper when reviewing laws that regulate commercial speech” and that instead intermediate scrutiny applies to such commercial speech. Intermediate scrutiny requires a determination that the expression is generally protected by the First Amendment, but “for commercial speech to come within that provision, it at least must concern lawful activity and not be misleading.” Recht, 32 F.4th at 408 (quoting Central Hudson Gas & Elec. Corp. v. Public Ser. Comm’n of N.Y., 447 U.S. 557, 566 (1980)). Next, the court will look to whether a governmental interest is substantial. If so, the question becomes “whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.” Id. Importantly, the government is not required to use the least restrictive means possible, but a court will consider their reasonableness. In Recht, the Fourth Circuit found that the restrictions were not unreasonable and that they advanced a significant government interest. As such, the restrictions on commercial speech where allowed.
Similar regulations in other jurisdictions are likely to spread in the pharmaceutical context and perhaps to other issues of public interest in which lawyers advertise. The historical trust the public has had in lawyers means that bar associations and legislatures will for the foreseeable future impose regulations and rules on lawyer’s commercial speech whenever there is a perception that the public’s trust could be compromised. Accordingly, it is important for firms to regularly check the current status of such regulations, statutes, and ethics opinions concerning each industry and in each jurisdiction that they operate. The rules concerning lawyer advertising have continued to evolve with communications.
The professionals at DiMuroGinsberg, P.C. have decades of experience advising clients about the changing legal ethics environment, including advertising issues. If you’d like to know more about this subject, contact Jarrad Wright at firstname.lastname@example.org.