Attorney Advertising Research Articles

Social Media and the New York Rules of Professional Conduct: Is LinkedIn Attorney Advertising?

Social Media and the New York Rules of Professional Conduct: Is LinkedIn Attorney Advertising?

Federal Appeals Court Responses to Supreme Court Precedent

This manuscript examines how federal appeals courts respond to precedent, in this case, Central Hudson Gas & Electric Corporation v. Public Service Commission. This account includes a comprehensive theory that examines attitudinal factors that relate to Central Hudson, specific relevant legal factors that relate to the case, as well as strategic considerations. We additionally argue that federal appeals courts may reasonably ignore Central Hudson in certain specific instances (most notably when other highly relevant cases are available for lower federal court judges to use). Our results show partial support for several portions of our theory, including a lower propensity for federal appeals courts to positively treat precedent when ideological distance is high. We also find support for one of our factual-based hypotheses (regarding cases that involve drugs and attorney advertising, where other U.S. Supreme Court precedents are readily available for appeals court judges to use).

Deregulation and the Lawyers' Cartel

At one time, the legal profession largely regulated itself. However, based on the economic notion that increased competition would benefit consumers, jurisdictions have deregulated their legal markets by easing rules relating to attorney advertising, fees, and, most recently, nonlawyer ownership of law firms. Yet, despite reformers’ high expectations, legal markets today resemble those of previous decades, and most legal services continue to be delivered by traditional law firms. How to account for this seeming inertia? We argue that the competition paradigm is theoretically flawed because it fails to fully account for market failures relating to asymmetric information, imperfect information, and negative externalities. In addition, the regulatory costs imposed on sophisticated consumers such as corporate purchasers of legal services differ radically from those imposed on ordinary consumers who use legal services infrequently. Merely increasing the number and types of legal services providers cannot make legal markets more efficient. We illustrate our theoretical account with evidence from the United Kingdom, Europe, and Asia. For legal markets to better serve the public, regulators must tailor solutions by segment. Regulators should seek to minimize negative externalities associated with the delivery of legal services to the corporate segment and confront information asymmetries that lead to the maldistribution of legal services in the consumer segment. Deregulation alone is insufficient and may in fact exacerbate existing market failures.

Experimental study of consumer responses to different sources of information about prescription drugs

Abstract Consumers receive risk information about prescription drugs from many sources, including from largely unregulated attorney advertisements. This experiment measures subjective risk beliefs about prescription drugs and subjects’ drug-taking behavior in an incentivized setting. Results of the experiment are used to estimate a Bayesian learning model to ascertain the risk levels implied by different information sources and the informational weights subjects place on these sources. Even after people have received scientifically based drug risk information from a doctor and product label, attorney litigation advertising boosts risk beliefs about side effects by an average of 16 out of 100 cases, which is roughly a 50% increase over baseline risk beliefs. Risk beliefs have a significant effect on drug-taking behavior in an incentivized environment. Experience with taking the drug also feeds back into the learning process about risk beliefs. Our experimental results help formalize how consumers update risk beliefs and suggest ways to encourage a learning environment that avoids alarmist updating based on information sources like attorney advertising.

Experimental Study of Consumer Responses to Different Sources of Information about Prescription Drugs

Consumers receive risk information about prescription drugs from many sources, including from largely unregulated attorney advertisements. This experiment measures subjective risk beliefs about prescription drugs and subjects’ drug-taking behavior in an incentivized setting. Results of the experiment are used to estimate a Bayesian learning model to ascertain the risk levels implied by different information sources and the informational weights subjects place on these sources. Even after people have received scientifically based drug risk information from a doctor and product label, attorney litigation advertising boosts risk beliefs about side effects by an average of 16 out of 100 cases, which is roughly a 50% increase over baseline risk beliefs. Risk beliefs have a significant effect on drug-taking behavior in an incentivized environment. Experience with taking the drug also feeds back into the learning process about risk beliefs. Our experimental results help formalize how consumers update risk beliefs and suggest ways to encourage a learning environment that avoids alarmist updating based on information sources like attorney advertising.

Settlement implications of lawyer advertising

This paper explores how informative attorney advertising influences the settlement probability and/or offer, using a screening framework. Plaintiffs are privately informed about the expected judgment and their level of ability in controlling the lawyer. More attorney advertising increases case filings by plaintiffs with high or low ability to different extents such that the defendant's beliefs about the plaintiff's type change with the level of attorney advertising. How attorney advertising influences settlement outcomes then depends on whether the defendant offers a higher settlement offer to more able plaintiffs.

Does Attorney Advertising Stimulate Adverse Event Reporting?

Lawyers frequently sponsor television advertisements that publicize the risks associated with a particular drug. The relationship between adverse event reporting and attorney advertising is heavily contested in litigation, but remains unknown. This study investigates whether attorney advertising is associated with changes in reporting volume through the Federal Adverse Event Reporting System (FAERS). The study examined both weekly and monthly volume of reports to FAERS for 28 groups of drugs targeted by attorney advertising, and compared it to attorney advertising volume, relative google search volume, media hits, and FDA safety interventions over a one-year period from July 2015 to June 2016. The study revealed no significant relationship between attorney advertising volume and the volume of adverse event reports. By contrast, FDA safety actions, google search volume, and media coverage were positively correlated with FAERS reports.

Does Attorney Advertising Influence Patient Perceptions of Pelvic Mesh?

To measure the relative influence of attorney advertising on patient perceptions of pelvic mesh compared with a history of surgery and a first urology visit. A 52-item survey was administered to 170 female patients in 2 urology offices between 2014 and 2016. Multiple survey items were combined to form scales for benefit and risk perceptions of pelvic mesh, perceptions of the advertising, attitudes toward pelvic mesh, and knowledge of pelvic mesh and underlying medical conditions. Data were analyzed using hierarchical linear regression models. Exposure to attorney advertising was quite high; 88% reported seeing a mesh-related attorney advertisement in the last 6 months. Over half of patients reported seeing attorney advertisements more than once per week. A history of prior mesh implant surgery was the strongest predictor of benefit and risk perceptions of pelvic mesh. Exposure to attorney advertising was associated with higher risk perceptions but did not significantly affect perceptions of benefits. Past urologist visits increased perceptions of benefits but had no effect on risk perceptions. Attorney advertising appears to have some influence on risk perceptions, but personal experience and discussions with a urogynecologist or urologist also influence patient perceptions. Implications, limitations, and future research are discussed.

Ending the Pursuit: Releasing Attorney Advertising Regulations at the Intersection of Technology and the First Amendment

In 2012, I characterized the enactment and enforcement of contemporary attorney advertising regulations as an endless pursuit to capture technology at the intersection of attorney advertising and the First Amendment. I invoked the image of Wile E. Coyote and his ongoing pursuit of the evasive Road Runner. Four years later, I have concluded that the pursuit is indeed endless and the “chase” should be abandoned in deference to both the First Amendment and the public’s ability to identify the proverbial wheat from the chaff in the world of Internet driven advertising. While professionalism remains a concern, the courts have found that professionalism concerns alone are not sufficient to chill commercial speech. In lieu of a detailed set of professional conduct advertising rules, state bars should apply a general standard that prohibits advertising that is misleading or fraudulent. Most states and the American Bar Association Model Rules of Professional Conduct provide such a standard in Rule 8.4(c), which states that [i]t is professional misconduct for a lawyer to…engage in conduct involving dishonesty, fraud, deceit or misrepresentation. The 8.4(c) standard should enable the state bars to protect the public while simultaneously permitting attorneys the flexibility required to advertise in the digital age.This article explores the premise that state regulation that governs attorney advertising by employing a standard that prohibits false and misleading advertising is the fair, efficient, and logical approach to advertising in the digital age. The article first provides a brief history of attorney advertising from the nineteenth century to the seminal Bates decision through today. Next, the article reviews a few of the recent court decisions and state bar ethics opinions that attempt to apply detailed advertising rules and guidelines to constantly changing technology. Then, the article reviews the tenor of the current national debate about attorney advertising and the Association of Professional Responsibility Lawyers (APRL) recent proposals to reform the advertising rules. Finally, the article concludes that streamlining the regulation of attorney advertising to require honest advertising that does not mislead the public is an approach that both adheres to the commercial speech doctrine and provides the public with access to information about legal service.

Association of Attorney Advertising and FDA Action with Prescription Claims: A Time Series Segmented Regression Analysis.

Attorneys sponsor television advertisements that include repeated warnings about adverse drug events to solicit consumers for lawsuits against drug manufacturers. The relationship between such advertising, safety actions by the US Food and Drug Administration (FDA), and healthcare use is unknown. To investigate the relationship between attorney advertising, FDA actions, and prescription drug claims. The study examined total users per month and prescription rates for seven drugs with substantial attorney advertising volume and FDA or other safety interventions during 2009. Segmented regression analysis was used to detect pre-intervention trends, post-intervention level changes, and changes in post-intervention trends relative to the pre-intervention trends in the use of these seven drugs, using advertising volume, media hits, and the number of Medicare enrollees as covariates. Data for these variables were obtained from the Center for Medicare and Medicaid Services, Kantar Media, and LexisNexis. Several types of safety actions were associated with reductions in drug users and/or prescription rates, particularly for fentanyl, varenicline, and paroxetine. In most cases, attorney advertising volume rose in conjunction with major safety actions. Attorney advertising volume was positively correlated with prescription rates in five of seven drugs, likely because advertising volume began rising before safety actions, when prescription rates were still increasing. On the other hand, attorney advertising had mixed associations with the number of users per month. Regulatory and safety actions likely reduced the number of users and/or prescription rates for some drugs. Attorneys may have strategically chosen to begin advertising adverse drug events prior to major safety actions, but we found little evidence that attorney advertising reduced drug use. Further research is needed to better understand how consumers and physicians respond to attorney advertising.

Attorney Advertising and the Contingency Fee Cost Paradox

It has long been taken as gospel that attorney advertising drives down the cost of legal services. The Supreme Court assumed it when first permitting attorney advertising in the landmark First Amendment case, Bates v. State Bar of Arizona. And, in the decades following Bates, courts, commentators, the ABA, and the FTC have followed suit, frequently touting advertising’s ability to cut consumer costs. The price effect of attorney advertising is thus both seemingly settled and also deeply embedded in its judicial justification.But there is a wrinkle. Though it appears advertising did drive down prices for routine legal services in the years immediately following Bates, in the intervening decades, there has been a decided, yet heretofore unexplored, shift. Contemporary attorney advertising is now mostly the province of the personal injury bar. Yet there is scant evidence that attorney advertising reduces the contingency fees personal injury lawyers charge. To the contrary, the best, most sophisticated, most comprehensive study of legal fees and attorney advertising ever conducted found that, unlike for most basic legal services (e.g., wills, personal bankruptcies, uncontested divorces), those who advertised personal injury legal services charged higher prices than their non-advertising counterparts. Other evidence likewise shows contingency fees have not dropped, even while personal injury lawyers’ ad expenditures have soared. This fact has been all but ignored, though it is of enormous consequence for both the legality of attorney advertising and the delivery of legal services more generally. This Article aims to reopen and reorient the “settled” attorney advertising debate, in light of the particularities of personal injury practice and the changing nature of the market for personal legal services in the United States.

Optimal attorney advertising

Attorney advertising routinely targets tort victims. This paper reviews legal services advertising restrictions in the United States and abroad. A theoretical model is developed which incorporates advertising intensity, litigation costs, and an endogenous number of lawsuits. Since advertising induces victims to bring suit, it increases the level of injurer care. However, litigation costs are also incurred. At the optimum, the marginal benefit of deterrence equals the sum of marginal litigation and advertising costs. Extensions of the model are considered, including the possibility that advertising stirs up frivolous lawsuits and that firms use advertising to rent seek. Fee shifting and alternative fee structures are also discussed. Although blanket prohibitions on attorney advertising are likely suboptimal, some regulations may be justified.

The Effect of Attorneys' Direct Mail Advertising on Credibility: A Study of Attorneys' and Consumers' Perceptions

Abstract The issues surrounding attorney advertising have become even more controversial with the recent Supreme Court decision allowing attorneys to advertise through the mail. For years the legal profession had prohibited direct mail advertising by attorneys because it was viewed as a form of in-person solicitation. As with advertising in general, direct mail advertising is perceived by the legal profession as something which would detrimentally affect the already sagging credibility of their profession. This study presents the results of an experiment conducted among attorneys and consumers in which the informational content of five attorney direct mail ads was manipulated to determine what effect, if any, the manipulations would have on the perceived credibility of the advertising attorney. The results substantiate Sherif's theory of social judgement and the notion that consumers and attorneys possess different selective perception processes.

Endless Pursuit: Capturing Technology at the Intersection of the First Amendment and Attorney Advertising

Among state bars, the Florida Bar has been a pioneer in regulating attorney advertising, especially with respect to new technology. The Bar’s efforts have been years in the making, but only until relatively recently did constitutional considerations percolate to the fore as the Bar faced litigation threats, and federal appellate courts issued opinions expounding on attorneys’ First Amendment rights to advertise. Now, with the release of a proposed new code of advertising rules that coincides with the release of the American Bar Association 20/20 Commission’s proposal to amend the attorney advertising and communication model rules, questions have arisen anew as to whether the Florida Bar has drafted rules that will prove relevant and effective in vindicating the public interest while simultaneously respecting attorneys’ constitutionally protected speech. Drawing from the Florida Bar’s experience, this Article suggests that bar associations and the attorneys subject to their jurisdiction fare better if constitutional principles play a prominent role early on in regulators’ efforts to respond to the public-policy challenges that accompany new innovations in society. Regardless of the ultimate constitutional validity of the Florida Bar’s proposed rules, the process that it took to achieve them is a process that other bars may want to learn from and avoid.

Optimal Attorney Advertising

Attorney advertising routinely targets tort victims. This paper reviews the Supreme Court’s jurisprudence on attorney advertising, and develops a theoretical model that incorporates advertising intensity, litigation costs, and an endogenous number of lawsuits. Since advertising induces victims to bring suit, it increases the level of injurer care. However, litigation costs are also incurred. At the optimum, the marginal benefit of deterrence equals the sum of marginal litigation and advertising costs. Although blanket prohibitions on attorney advertising are likely to be suboptimal (consistent with the Court’s position), some regulations may be justified.

Liability Concerns Common in NH Practice

Miriam E. Tucker is a senior writer with Elsevier Global Medical News. NATIONAL HARBOR, MD. — Fears about liability appear to be undercutting the ability and desire of physicians to provide care in nursing homes. That conclusion comes from a study funded jointly by the Southern Illinois University School of Law, the California HealthCare Foundation, and the Commonwealth Fund. The findings suggest that legal reforms, as well as changes in practice conditions, could make nursing homes more appealing settings for physicians, said Marshall B. Kapp, JD, MPH, a professor at the law school's Center for Health Policy and Law, Carbondale, Ill. “Many facilities have difficulty attracting and retaining high-quality, conscientious medical directors and attending physicians in part because of physicians' legal anxieties,” said Mr. Kapp, who did the study's survey and reported its results at the annual meeting of the Gerontological Society of America. He conducted 44 structured telephone interviews with 20 physicians, 6 advocacy organization representatives, 5 trade association officials, 4 nursing home administrators, 4 health services researchers, 2 attorneys, 2 insurance industry representatives, and 1 nurse. Wide geographic variation emerged in both the degree of liability anxiety felt by physicians and in the accuracy of their concerns. Attitudes ranged from “almost paranoia” in California to “not worried enough” about liability in New York, Mr. Kapp said. Physicians' anxieties were often influenced by factors such as attorney advertising, media coverage of nursing homes, and residents' and families' threats to sue. Whether or not nursing homes have “deep pockets” to pay liability claims also contributes to physicians' concerns about their own liability. Some nursing homes have made themselves unlikely defendants in malpractice lawsuits by purchasing less insurance or in some cases even “going bare,” said Mr. Kapp. Some state laws have further limited nursing home liability, thereby leaving physicians as the primary targets for lawsuits, said Mr. Kapp. For example, tort reform in Florida increased legal protection for nursing homes but resulted in almost a doubling since 2001 in the proportion of nursing home-related lawsuits in which individuals, including physicians, were named as defendants, from 13.5% to 26.5%. Mr. Kapp noted that 3 years ago AMDA surveyed its members and found that 29% of 670 respondents had experienced problems obtaining or renewing medical liability insurance for their work in nursing homes; 26% said that an insurance carrier had withdrawn from the nursing home market in the respondents' areas. Affordability of coverage for nursing home care also was cited as a problem, Mr. Kapp reported (see page 14). On the brighter side, physicians practicing in nursing homes whose workforce includes trained physician extenders were less apprehensive than others about their legal liability. “The overwhelming sentiment was that … we can greatly improve quality of care and reduce liability with the use of physician extenders,” Mr. Kapp said. Physicians' legal anxieties can result in overtreatment of residents, including unnecessary transfers to hospitals, or undertreatment, especially with pain medication. Nursing home “overprotectiveness” may also result in a loss of autonomy for residents, said Mr. Kapp. The survey showed that legal anxieties aren't the only reason physicians limit or avoid nursing home involvement. Other factors cited include low prestige for the work, less control over care than in hospital or office settings, professional isolation, poor compensation, administrative and regulatory burdens on medical directors, and patient populations prone to bad outcomes, no matter the quality of care. Mr. Kapp said he was surprised by the strength of the issues, beyond liability concerns, that prompt physicians to avoid nursing home care. A full report of the study is available at www.chcf.org/documents/chronicdisease/PhysicianLiability.pdf.

Attorney Advertising

The study reported here does not address the image of the legal profession. We do not purport to defend or condemn advertising. Rather, we look first to the decision by Justice Blackmun in Bates v. Arizona State Barand other sources to determine the real objective of lawyer advertising. We then conducted a study to determine if those objectives are met. The objectives identified were to attract clients for new and small law firms and to attract the kinds of clients who have not historically used the services of attorneys. Based on other studies, we determined that these clients have low incomes, have low levels of education, are not Caucasian and have not used an attorney's services before. A survey of more than 1500 subjects produced data that shows attorney advertising does meet the objectives identified by Justice Blackmun.

Attorney Advertising and the Use of Dramatization in Television Advertisements

Attorney Advertising and the Use of Dramatization in Television Advertisements

Attorney Advertising: The Link Between Ad Cues and Consumer Search Criteria

ABSTRACT Although the supreme court in 1978 broke the Bar Association's stranglehold on legal services marketing, there has been continuing resistance to the more visible marketing techniques, especially TV advertising. This study examined a select group of TV advertisements-all those ads submitted for competition in the 1992 and 1994 annual “Dignity in Lawyer Advertising” award programs, sponsored by the American Bar Association's Commission on Advertising.

Attorney advertising: The link between ad cues and consumer search criteria

Attorney advertising: The link between ad cues and consumer search criteria