U.S. GOVERNMENT PUBLISHING OFFICE

29–776 WASHINGTON : 2018

EXAMINING ETHICAL RESPONSIBILITIES 

REGARDING ATTORNEY ADVERTISING 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION 

AND CIVIL JUSTICE 

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

JUNE 23, 2017 

Serial No. 115–22 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 

(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAUL LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

DOUG COLLINS, Georgia 

RON DESANTIS, Florida 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

MARTHA ROBY, Alabama 

MATT GAETZ, Florida 

MIKE JOHNSON, Louisiana 

ANDY BIGGS, Arizona 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., Georgia 

THEODORE E. DEUTCH, Florida 

LUIS V. GUTIE ́ RREZ, Illinois 

KAREN BASS, California 

CEDRIC L. RICHMOND, Louisiana 

HAKEEM S. JEFFRIES, New York 

DAVID CICILLINE, Rhode Island 

ERIC SWALWELL, California 

TED LIEU, California 

JAMIE RASKIN, Maryland 

PRAMILA JAYAPAL, Washington 

BRAD SCHNEIDER, Illinois 

SHELLEY HUSBAND, Chief of Staff and General Counsel 

PERRY APELBAUM, Minority Staff Director and Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION AND CIVIL JUSTICE

STEVE KING, Iowa, Chairman 

RON DESANTIS, Florida, Vice-Chairman 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

TREY GOWDY, South Carolina 

STEVE COHEN, Tennessee 

JAMIE RASKIN, Maryland 

JERROLD NADLER, New York 

(III) 

C O N T E N T S 

JUNE 23, 2017 

OPENING STATEMENTS 

Page 

The Honorable Steve King, Iowa, Chairman, Subcommittee on the Constitution and Civil Justice ........................................................................................... 1 

The Honorable Steve Cohen, Tennessee, Ranking Member, Subcommittee on 

the Constitution and Civil Justice ...................................................................... 2 

The Honorable Bob Goodlatte, Virginia, Chairman, Committee on the Judiciary ......................................................................................................................... 4 

The Honorable John Conyers, Michigan, Ranking Member, Committee on 

the Judiciary ......................................................................................................... 6 

WITNESSES 

Ilana Kutinsky MD, Director of Atrial Fibrillation Services, William Beaumont Hospital Troy 

Oral Statement ................................................................................................. 8 

Shawn H. Fleming MD, Vascular Surgeon, Novant Health Vascular Specialists 

Oral Statement ................................................................................................. 10 

Lynda C. Shely, Partner, The Shely Firm 

Oral Statement ................................................................................................. 12 

Elizabeth Tippett, Assistant Professor, University of Oregon School of Law 

Oral Statement ................................................................................................. 14 

ADDITIONAL MATERIAL SUBMITTED FOR THE RECORD

Letters Submitted by the Honorable Steve King, Iowa, Chairman, Subcommittee on the Constitution and Civil Justice. This material is available 

at the Committee and can be accessed on the committee repository at: 

http://docs.house.gov/meetings/JU/JU10/20170623/106162/HHRG115-JU10-20170623-SD004.pdf 

http://docs.house.gov/meetings/JU/JU10/20170623/106162/HHRG115-JU10-20170623-SD005.pdf 

Statement submitted by the Honorable Steve King, Iowa, Chairman, Subcommittee on the Constitution and Civil Justice. This material is available 

at the Committee and can be accessed on the committee repository at: 

http://docs.house.gov/meetings/JU/JU10/20170623/106162/HHRG115-JU10-MState-K000362-20170623.pdf 

Statement Submitted by the Honorable Jamie Raskin, Maryland. This material is available at the Committee and can be accessed on the committee 

repository at: 

http://docs.house.gov/meetings/JU/JU10/20170623/106162/HHRG115-JU10-20170623-SD003.pdf 

(1) 

EXAMINING ETHICAL RESPONSIBILITIES 

REGARDING ATTORNEY ADVERTISING 

FRIDAY, JUNE 23, 2017 

HOUSE OF REPRESENTATIVES

SUBCOMMITTEE ON THE CONSTITUTION AND CIVIL JUSTICE

COMMITTEE ON THE JUDICIARY

Washington, DC 

The subcommittee met, pursuant to call, at 9:36 a.m., in room 

2141, Rayburn House Office Building, Hon. Steve King (chairman 

of the subcommittee) presiding. 

Present: Representatives King, Goodlatte, DeSantis, Franks, 

Cohen, Conyers, Nadler, and Raskin. 

Staff Present: John Coleman, Counsel; Jake Glancy, Clerk; 

James Park, Minority Chief Counsel; Matthew Morgan, Minority 

Professional Staff Member; and Veronica Eligan, Minority Professional Staff Member. 

Mr. KING. The Subcommittee on the Constitution and Civil Justice will come to order. Without objection, the chair is authorized 

to declare a recess of the committee at any time. 

We welcome everyone to today’s hearing on ‘‘Examining Ethical 

Responsibilities Regarding Attorney Advertising.’’ And I now recognize myself for an opening statement. 

Today’s hearing will examine the ethical responsibilities related 

to attorney advertising. I’d like to start off by showing an ad by the 

law firm Pulaski and Middleman, L.L.C. The ad will be projected 

on the screens to your side and to the front for the members. 

Go ahead with the ad, please. 

[Video shown.] 

Mr. KING. Ladies and gentlemen on the committee, anyone who 

has watched television in recent years has likely seen this ad or 

one like it. They include a toll-free number, like 1–800–BAD– 

DRUG, visuals of an injury, and a list of the drug’s side effects. 

One bit of information that is not always included is a warning 

to patients about talking to their doctor before discontinuing use of 

the medication. Indeed, even if these ads do provide a warning, it 

is in tiny, low-contrast text at the bottom of the TV screen. 

Studies show that these ads are reaching a broad audience. A recent survey conducted by Public Opinion Strategies, for example, 

states that nearly three-quarters of Americans say they have seen 

ads by law firms about pharmaceutical lawsuits in the last year. 

Three-quarters of Americans, that’s well over 200 million people. 

2 

The same survey found that one in four people who see an actual 

trial lawyer ad regarding a medicine they currently take say they 

would immediately stop taking the medicine without consulting the 

doctor. 

The American Medical Association reported a similar effect. According to a press release they issued last year, patients were more 

likely to discontinue use of prescribed FDA-approved pharmaceuticals after seeing television advertisements that, quote, ‘‘emphasize side effects while ignoring the benefits of the fact that the 

medication is FDA approved,’’ close quote. 

Unfortunately, these ads are having terrible consequences. A 

study published in the Heart Rhythm Journal reported that patients who were prescribed the anticoagulant Xarelto and who discontinued taking it after viewing a negative attorney advertisement suffered serious injuries or have died. According to the author, 75 percent of the patients experienced a stroke. Two patients 

passed away, including a 45-year-old man. 

These cases only account for those that have been reported to the 

Food and Drug Administration’s Adverse Event Reporting System 

for Xarelto. There may be many more cases that have gone unreported for this drug or many other drugs and medical devices that 

have also been the subject of negative attorney advertisements. 

Today’s hearing is intended to examine the effects of these advertisements and to explore what can be done to prevent more loss of 

life. I want to thank all our witnesses today for their testimony, 

and I look forward to your perspectives on this issue. 

The chair now recognizes the ranking member of the Subcommittee on the Constitution and Civil Justice, Mr. Cohen of Tennessee, for his opening statement. 

Mr. Cohen. 

Mr. COHEN. Thank you, Mr. Chair. 

Like our hearing last week, today’s hearing presents a new topic 

for us, but it’s old wine in a new bottle. It’s another attack on trial 

lawyers, advocates that make our country different from others, as 

we have advocates to argue for us in court, and the beneficiaries 

of this attack on the plaintiffs’ bar are well-healed corporate interests that would benefit greatly and would prefer probably not to be 

attorneys at all unless they were defense side. 

Unfortunately, the Constitution Subcommittee has dealt too 

much on enriching the rich and attacking the plaintiffs’ bar, rather 

than doing what we should be doing, respecting and advocating for 

the Constitution. 

Just this week, nearly 200 Members of Congress filed a legal action, which we have to resort to do for this subcommittee and our 

full committee have not taken up any attacks on the Constitution, 

such as the Emoluments Clause, Article I, section 9: And no foreign 

power, no king, no prince, no foreign state, shall give a gift, emolument of any kind, to somebody serving under the United States 

without the consent of Congress. 

And we know that the current President has taken hundreds of 

thousands of dollars from the Saudi Government at his hotel here, 

and in leases at Trump Tower from the Saudis and the Chinese, 

and gosh knows what else, and never asked for the consent of Congress. 

3 

John Kennedy was offered an honorary citizenship by his native 

land, or ancestors’ native land, Ireland, and he asked counsel could 

he accept an honorary citizenship, was that an emolument. It was 

deemed so, and he didn’t accept it. But there’s the difference. And 

many Presidents over the years have asked for and then been 

turned down, and some even just small items. But, no, we’re dealing with attacking the plaintiffs’ bar once again. 

And last week we had the majority complain about government 

regulation of business and businesses’ ability to communicate with 

the public, somewhat robocall advocacy, if you can believe we’d 

have robocall advocacy, maybe one of the most hated forms of communication that has been created, because attorneys were finding 

illegalities by robo companies in calling, and calling, and calling, 

and pestering people, and bothering people. So we now look to reduce that more. 

Make no mistake, this hearing may be framed as one of concern 

by healthcare professionals about the potentially harmful effects of 

attorney advertising on drug cases to the public, but in reality the 

aim is to protect companies from being held accountable for harmful drugs. It’s consistent, though, with the healthcare bill that this 

majority has given the country, which is not a healthcare bill and 

which President Obama has correctly said is more about tax breaks 

for the rich and less about healthcare. 

It’s clear why some would want to impose greater restrictions on 

the ability of attorneys to communicate with the public about the 

availability of legal services. But they would face no obstacles in 

doing it. Ironically, the First Amendment, which we should be concerned about as the Constitution Committee, and we should be protecting the First Amendment. And advertising is constitutionally 

protected free speech. 

Only when the advertising is false or misleading may it? Be prohibited, and only under limited circumstances may States impose 

regulations on otherwise truthful, non-misleading advertising. 

So far, there’s been little evidence to determinate that attorney 

drug injury advertisements are false or misleading under current 

law. Therefore, attempts to restrict or further regulate these advertisements is certainly constitutionally suspect at best. 

The subcommittee is once again intruding on State sovereignty— 

often been the mantra of the majority side—in the name of socalled tort reform. Regulation of lawyers has traditionally fallen 

within the authority of State supreme courts or State bars or 

States in general. 

Surely, the Federal legislature has better use of its time than to 

try to supplant State bar councils, ABA, on matters traditionally 

left to State administration or to attempt to intimidate them to do 

some of its bidding. But we have done that on—are doing that on 

gun laws, taking that away from the province of the States when 

it suits the political convenience of that side. 

It is a bit rich to suggest that we should seek to limit attorney 

advertising in the name of protecting consumers and public health 

given the enormous amounts that drug companies spend to influence consumer choice. Lawyer drug injury advertisements serve the 

vital function of educating the public about the dangers of certain 

4 

medications and the availability of legal services for those who are 

injured. Yet, I note that while $114 million may have been spent on attorney drug injury advertising in the year ending in 2016, that 

pales—or fiscal year 2016—that pales in comparison to the estimated $6.4 billion spent by drug companies on advertising in 2016 

alone, 114 million by attorneys, 6.4 billion by drug companies. 

That’s the real threat to consumers, is drug advertising, getting 

people to want drugs and go to their doctors and say, like Huey 

Lewis and the News, I need a new drug. 

We shouldn’t try to manipulate patient choices about what medications they should be taking. Our broadcast, print, and online 

media are full of pharmaceutical ads that it’s impossible to escape 

ads for medication that address everything from erectile dysfunction and a 4-hour problem, to constipation, at any hour of the day, 

even when children may be watching. Those are areas more important to be looked at and screened than drug advertising. 

Decisions about whether someone should take a particular medication, including the balancing of risk and benefits of doing so, 

should be left to the patient in consultation with a healthcare professional. They should not be influenced by advertisements and the 

insatiable greed of drug companies telling you, when you’re in the 

moment, use our drug. 

Truthful and constitutionally protected lawyer advertising performs an important societal function in informing people injured by 

drugs of the availability of legal services and legal recourse. And 

where ads are actually false or misleading, State bars are already 

equipped to take disciplinary action. Congressmen and Congresswomen should just stay out of the way and protect the First 

Amendment. 

I yield back the balance of my time. 

Mr. KING. I thank the gentleman from Tennessee for his opening 

statement. 

I now recognize the chairman of the full committee, Mr. Goodlatte of Virginia, for his opening statement. 

Mr. Goodlatte. 

Chairman GOODLATTE. Thank you, Mr. Chairman. 

On March 7, 2017, this committee sent a series of letters regarding the topic of today’s hearing to the American Bar Association, 

51 State bars, including the District of Columbia, and two companies that aggregate plaintiffs for law firms. Based on the responses 

that we have received so far from State bars, it appears that there 

are few, if any, reported complaints of lawyer misconduct regarding 

these commercials. 

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. 

I would like to read from a portion of a statement submitted for 

today’s hearing from Dr. Frank Peacock of Houston, Texas, who reported one such case. 

He states: ‘‘My patient, being 66 years old, female, with a history 

of high blood pressure and diabetes, has a 4.8 percent risk of having a stroke within the next year that would leave her debilitated, 

unable to speak, wearing diapers in a nursing home for the rest of 

5 

her markedly shortened life versus taking a pill every day with a 

risk of a fatal bleed from anticoagulation of 0.0009 per year. 

‘‘To summarize, this patient had a 4.8 annual stroke risk versus 

0.0009 annual fatal bleeding risk. In medicine, we call this a nobrainer and pick the lower of the risks. 

‘‘So I went to the patient’s bedside to have what I thought would 

be a relatively straightforward conversation. Usually, this is a 5- 

minute exchange about what atrial fibrillation is and what would 

be the recommended treatment. I answer some of the questions, 

write a prescription, move on to the next patient. That is not how 

it went. 

I went to the bedside and told my patient that her tests showed 

she had atrial fibrillation, but instead of her asking me the expected question of, ‘What is atrial fibrillation?’ She said: ‘I know.’ 

‘‘So if she had atrial fibrillation, the obvious next question for me 

was, ‘What anticoagulant are you taking?’ She couldn’t answer me 

as she broke down in tears. 

‘‘When she could talk, she related a story that made me so angry 

that it motivated me to write this testimony today. Wednesday, 4 

days before coming to my ER, she had felt tired, and weak, and 

had a fluttering feeling in her chest. She went to her physician, 

who did an electrocardiogram and diagnosed atrial fibrillation. 

‘‘He found the same results as I had, that a controlled heart rate 

in a patient with a very high risk of having a massive debilitating 

stroke. He spent 30 minutes teaching her about atrial fibrillation, 

the risks, the benefits, the treatment options, answered her questions, and then gave her a prescription for rivaroxaban and discharged her home. 

‘‘On Wednesday afternoon, my patient filled the prescription, 

went home, and took rivaroxaban. All was well until Thursday 

evening, which, while watching television, she saw the first 1-800- 

BAD-DRUG commercial that implied that rivaroxaban was a dangerous drug. 

‘‘Having already taken it as instructed, with dinner, she did not 

know what to do. She called her doctor but got an answering service. She called the lawyer firm who was glad to take her information but offered no advice. She did not sleep that night. 

‘‘Friday came and she again called her doctor, but he didn’t have 

an appointment available until the following week. She called the 

1-800-BAD-DRUG ad number again but got no instructions. What 

to do? Petrified with fear, she did not take her anticoagulant that 

night. 

‘‘On Saturday morning, in my ER, I spent an hour talking with 

this patient. This was an extremely educated, intelligent woman 

who absolutely felt abused by our system, her physician of many 

years prescribing a drug to save her life, and lawyers coming into 

her house, by way of her television, to destroy the doctor-patient 

relationship, and prompt her to engage in behavior that could be 

fatal. 

‘‘My patient left my ER about midday. She took her rivaroxaban 

before she left. Nobody will know what would have happened had 

she waited to take her anticoagulant. Would she be dead from a 

massive stroke or in a nursing home at this very minute? What if 

6 

it had been a different patient that just listened to the TV and 

didn’t come to my ER?’’ 

Dr. Peacock’s statement shows that these attorney advertisements are having a real-world impact. Not only do they create a 

barrier between doctors and patients, but they are endangering 

these patients’ lives. 

I want to thank our witnesses for appearing today, and I look 

forward to your testimony. 

Mr. KING. I thank the chairman of the full committee for his 

opening statement. 

And the chair now recognizes the full Judiciary Committee ranking member, Mr. Conyers of Michigan, for his opening statement. 

Mr. Conyers. 

Mr. CONYERS. Thank you, Mr. Chairman. 

Top of the morning, witnesses, for coming. 

My colleagues, without doubt, most prescription drugs save lives. 

Yet, it’s also a fact that some result in injury and death. Even 

properly prescribed medications cause, on average, almost 2 million 

hospitalizations every year. Worse yet, 128,000 people die from 

these medications annually, making prescription drugs the fourthleading cause of death in the United States of America. 

These statistics prove that many Americans are injured as a result of taking even Food and Drug Administration-approved medications. Accordingly, attorney advertisements that truthfully inform consumers of the danger of such medications, as well as the 

availability of legal services for those who have been injured by 

such drugs, perform invaluable educational function for our society. 

Nevertheless, there are those who claim that these advertisements cause some consumers to stop taking their medications and 

argue that they must be more aggressively regulated. But before 

we take any such measures, we must keep a few points in mind. 

To begin with, truthful and non-misleading attorney advertising 

is protected under the First Amendment in the Constitution. It’s 

well-settled law that the Constitution protects commercial speech, 

including attorney advertising. Only where there is a substantial 

government interest may regulation on attorney advertising be 

upheld. 

Those complaining about attorney drug advertisements done the 

contend that such advertisements are false or misleading under 

current law. In light of this, proposals to limit or restrict attorney 

advertising may be unconstitutional. 

In addition, even if attorney drug injury advertisements could be 

considered false or misleading, there are already mechanisms to 

deal with the problem. Every single State has rules of professional 

conduct for lawyers that prohibit false or misleading advertising; 

and every State has a process by which consumers may complain 

about attorney conduct should they come across an offending advertisement. 

Ultimately, the onus is on physicians and other medical professions to be proactive in advising their patients about both the benefits and risks of medications. That burden should not be shifted to 

attorney advertisements that truthfully highlight the risk of those 

medications. 

7 

And, finally, we must view this hearing in the context of other 

efforts to limit or even deny access to justice for those harmed by 

defective medical products. 

I just must note the hypocrisy of seeking to restrict advertising 

in the name of promoting public health and patient safety when 

the House will consider medical malpractice legislation next week. 

That bill has unjustifiably brought legal protection to healthcare 

providers, including complete legal immunity for such providers in 

any product liability lawsuit concerning the provision of drugs or 

medical devices. Such protections for healthcare providers will deny 

injured patients the ability to be made whole. 

Further regulation of attorney drug injury advertisements, combined with enactment of the medical malpractice bill, would mean 

that consumers could potentially be denied full information about 

their legal rights and access to legal services concerning defective 

medications on the front end, and then denied their day in court 

on the back end. Public health, consumer welfare, and the interests 

of justice would not be served by such an outcome. 

So I welcome the witnesses and look forward to their testimony. 

And I thank the chairman. 

Mr. KING. I thank the ranking member from Michigan for his 

statement. 

And, without objection, other members’ opening statements will 

be made part of the record. 

Before I introduce the witnesses, I ask unanimous consent to introduce into the record 13 documents that we’ve received from various groups and individuals interested in today’s hearing. And 

without objection, so ordered. 

[The information follows:] 

Letters introduced by Mr. King of Iowa. This material is available at the Committee and can be accessed on the committee repository at: 

http://docs.house.gov/meetings/JU/JU10/20170623/106162/ 

HHRG-115-JU10-20170623-SD004.pdf 

http://docs.house.gov/meetings/JU/JU10/20170623/106162/ 

HHRG-115-JU10-20170623-SD005.pdf. 

Mr. KING. And now I’d like to introduce the witnesses. 

Our first witness is Dr. Ilana Kutinsky. She’s the director of 

atrial fibrillation services at William Beaumont Hospital. 

The second witness is Dr. Shawn H. Fleming. And Dr. Fleming 

is a vascular surgeon for Novant Health Vascular Specialists. 

Our third witness is Linda Shely, who is a partner at the Shely 

Firm. 

And our fourth witness is Elizabeth Tippett, an assistant professor at the University of Oregon School of Law. 

Each of the witnesses’ written statements will be entered into 

the record in its entirety. I ask the witnesses to summarize their 

testimony in 5 minutes or less. And to help you stay within that 

time, there’s a timing light in front of you. It turns to green when 

you start to speak. It turns to yellow at the end of 4 minutes. And 

in 60 seconds we’d ask you to wrap up your testimony in a cogent 

way, if you could possibly. 

8 

Before I recognize the witnesses, it is the tradition of the subcommittee that the witnesses be sworn in. So I’d ask if you’d please 

stand to be sworn in. 

Raise your right hand. 

Do you swear that the testimony that you’re about to give before 

this committee is the truth, the whole truth, and nothing but the 

truth, so help you God? 

Thank you. You may be seated. 

Let the record reflect that all the witnesses have responded in 

the affirmative. 

And I now recognize our first witness, Dr. Kutinsky. 

Please proceed shortly after you turn on your microphone, please, 

Dr. Kutinsky. 

Dr. KUTINSKY. Okay. 

Mr. KING. You are recognized. 

TESTIMONY OF DR. ILANA KUTINSKY MD, DIRECTOR OF 

ATRIAL FIBRILLATION SERVICES, WILLIAM BEAUMONT HOSPITAL TROY; DR. SHAWN H. FLEMING MD, VASCULAR SURGEON, NOVANT HEALTH VASCULAR SPECIALISTS; LYNDA C. 

SHELY, PARTNER, THE SHELY FIRM; AND ELIZABETH 

TIPPETT, ASSISTANT PROFESSOR, UNIVERSITY OF OREGON 

SCHOOL OF LAW 

TESTIMONY OF ILANA KUTINSKY 

Dr. KUTINSKY. Chairman King, Ranking Member Cohen, and 

members of the subcommittee, my name is Dr. Ilana Kutinsky. I 

am a cardiac electrophysiologist who has practiced medicine for 

nearly 2 decades. My goal today is to explain why attorney advertising related to medical treatment should be required to represent 

a transparent, fair, and balanced view of medical issues and should 

contain a clear disclaimer that the ad is not presented by a medical 

professional. 

I am here to offer the perspective of a concerned doctor. I was 

not paid to be here by a legal or political organization, and I will 

not receive a financial benefit of any kind. 

The facts that I share with you do not come from a survey or a 

think tank. My testimony is based on the personal experience of a 

doctor who has witnessed the harm caused by careless and unregulated legal advertising. I have, unfortunately, watched my own patients refuse and discontinue medical treatments and prescriptions 

because they were frightened by legal advertising. This is a sad 

phenomenon that I see on a regular basis. 

The misrepresentation of facts made in mass tort ads causes fear 

in patients and can lead to treatment noncompliance. Irresponsible 

attorney advertising undermines the patient-physician relationship 

and completely disregards evidence-based medical based practices 

and recommendations from the FDA. 

To offer an idea of what I have seen, I will describe an incident 

involving an elderly patient of mine who was diagnosed with atrial 

fibrillation. I have many examples like this, but this is just one. 

To reduce her likelihood of a stroke, I recommend that she begin 

a regimen of anticoagulation medicine, commonly referred to as a 

blood thinner. All medicines have side effects, and it’s the job of the 

9 

physician to counsel patients about the side effects and why they 

are outweighed by the benefits of the medicine. 

This particular elderly patient was resistant to anticoagulation 

because of the potential bleeding effects. But after several office 

visits involving long discussions and one-on-one education I built a 

strong enough relationship with the patient that she agreed and 

she understood that the risk of her stroke was high and that the 

benefit of treatment with an anticoagulation agent significantly 

outweighed her bleeding risk. 

She agreed to take the medicine. She did not want to have a 

stroke and lose her independence. Then, 3 years later, she presented to the hospital with a massive stroke. I was confused, and 

I spoke with her family. I was concerned that my treatment failed 

her. 

They informed me that 2 weeks prior to her admission she had 

received a flyer in the mail from an attorney warning her that her 

anticoagulant medicine could cause massive internal bleeding and 

death. She didn’t want to die, so she stopped her medicine. She had 

planned to discuss her decision with me at her next appointment. 

Unfortunately, by then, it was too late. She was unable to communicate with me when I saw her at the hospital and subsequently 

fell into a coma and died. 

She was under my care for nearly 8 years. After finally convincing her to go on anticoagulation so she would be protected from 

a stroke, she stopped the medicine after receiving a flyer from a solicitous attorney, who likely has no medical background. 

This is just one example of something that I experience on a constant basis. It may seem implausible that a person would disregard 

the sound advice of a trusted physician based on a faceless advertisement from a personal injury attorney, but it is true. 

Atrial fibrillation is the most common arrhythmia in the United 

States. There are currently over 5 million Americans with atrial fibrillation, and by 2030 that number will be over 12 million. 

I know that patients with atrial fibrillation have a high morbidity and mortality that is directly related to thromboembolism. 

Leading medical societies, as well as the FDA, recommended countering this risk by initiating therapy with anticoagulant. That is 

the standard of care. 

As a physician, I understand and discuss this with my patients, 

that the anticoagulants hold some risk of bleeding, in reality a very 

low risk, but that those risks are substantially outweighed by the 

benefits of stroke prevention. I counsel patients to take these medicines based on decades of medical education and treatment of heart 

patients. And because lawyers are held in high esteem, they can 

eradicate sound medical advice with a single advertisement, despite no medical training. 

Patients often do not recognize the solicitous nature of a tort ad. 

They do not consider the financial motive behind the message and 

assume that an attorney, a licensed professional, must have their 

best interest in mind. They are not confident. They are easily 

scared into discontinuing a medicine based on a well-crafted advertisement. 

I am not a lawyer, so I am not here to argue whether regulation 

of lawyer advertising infringes on freedom of speech or whether adVerDate Sep 11 2014 04:43 May 02, 2018 Jkt 029776 PO 00000 Frm 00013 Fmt 6633 Sfmt 6602 E:\HR\OC\A776.XXX A776
10 

vertising is sufficiently regulated by the State bar association. I can 

only communicate the actual events that I have witnessed on a regular basis involving real people who disregard sound, medicalbased advice based on misleading legal advice—advertisements. 

And while I’m not a lawyer, I do understand that all constitutional rights are subject to limits, including the right to freedom of 

speech. Certainly, freedom of speech does not allow anyone, including lawyers, to make a misrepresentation or false and misleading 

ads at the expense of the American public. 

In closing, I ask the committee to consider the following key 

issues. 

First, attorney advertisements are not currently required to 

present a fair and balanced view. They do not have a disclaimer 

stating that they have no medical background. 

Second, because of this lack of balance, advertisements have the 

potential to scare patients into stopping important therapy. These 

advertisements undermine the physician-patient relationship, instilling unfounded doubt and mistrust. 

And, finally, these advertisements undermine current evidencebased medical practice and standard of care. They are directly advertising against medications determined by the FDA to be safe 

and effective without any communication as to the risk of abruptly 

stopping these treatments. 

I urge the committee to ensure that all attorney advertising related to medical treatments represent a fair and balanced view of 

the medical issues and hold a clear disclaimer that the ad is not 

presented by a medical professional. 

I thank the committee for its attention to this critical issue and 

for allowing me the opportunity to share my experience. 

Mr. KING. Thank you, Dr. Kutinsky. 

And now the Chair will recognize Dr. Fleming for your testimony. 

Dr. Fleming. 

TESTIMONY OF SHAWN H. FLEMING 

Dr. FLEMING. Chairman King, Ranking Member Cohen, and 

members of the subcommittee, I thank you for the opportunity to 

be here. It’s an honor. 

My name is Shawn Fleming. I have the privilege of practicing as 

a board certified vascular surgeon in Winston-Salem, North Carolina. As part of my duties within the scope of my practice, I’m often 

asked to determine the need for initiation of anticoagulation, as 

well as prescribing regimens and determining risk of 

anticoagulation around the time of surgery. I’m also required, on 

occasion, to perform emergency surgery for people who are bleeding 

to death and perform emergency surgery on people who have suffered clots in different areas. 

During the course of my training, Warfarin has always been the 

standard oral anticoagulant that was used for many years. Although it is cheap, it is problematic in that it requires constant 

monitoring and dose adjustments. 

The introduction of this newer class of anticoagulants several 

years ago certainly has simplified the management of patients at 

risk for blood clots. As with Warfarin, these newer medications do 

11 

carry a small risk of bleeding that must be weighed against the 

benefits they provide to the patient. This is not a new phenomenon, 

and it’s one that all prescribers take into account when they’re considering the risk-and-benefit analysis for each patient. 

Several years ago I became aware of these legal advertisements 

targeting these medications specifically when I began noticing regular, frequent, and strong resistance from patients that were prescribed these medications. When I inquired about the source of 

their resistance, I was frequently told about the commercial and 

the fears they have of dying from the drug. Not since I began training in the year 2000 have I seen patients so regularly and frequently fear recommended treatment from a medical professional. 

Since these commercials first appeared, I’ve spent countless time 

in the clinic trying to convince patients of their safety. Not long 

ago, I encountered a patient in my surgical practice who was simultaneously under the care of another physician in the healthcare 

system for an unrelated medical condition, a pulmonary embolus. 

This is a blood clot that goes to the lungs and is life threatening. 

You may recall CNN reporter David Bloom died of this condition 

while covering the war in Iraq. 

I noted that he had been recently diagnosed with this problem 

and was asked to be placed on Xarelto. When reviewing his medications, he told me that he was not taking the medication, nor would 

he ever, because of a commercial he had seen on television. I did 

spend some time trying to convince him otherwise, but he refused. 

Several weeks later, we got a note that he had died of a recurrent 

pulmonary embolus. 

While this is the only case that I have been directly involved in 

that has led to death, I certainly have spent countless hours, as 

I’ve told you, trying to convince patients to take their prescribed 

regimen. 

It’s my opinion that the tone and content of these advertisements 

imply a qualitative judgment about these medications that are just 

not true. 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. 

That’s actually not the case. If they don’t take the medications, 

they could die, and are more likely to die, from a thrombotic event. 

But that is not ever mentioned in these commercials. 

While I certainly don’t presume to know the intention of the commercials, based on my direct interaction with numerous patients, 

I can testify with confidence that patients perceive these advertisements as medical advice, and they are often in direct contradiction 

to that of their physicians. 

This leads to conflict in the doctor-patient relationship, not just 

as it pertains to this drug, but if they believe that I’ve prescribed 

them a drug that may kill them, then 6 months later when I need 

to give them a different drug, they’re resistant. When I tell them 

that I need to put them to sleep and do surgery on them, they’re 

resistant, because they no longer trust me. 

12 

Ironically, when compared to the historical standard oral anticoagulant, Warfarin, each of these new medications carry a significantly lower risk of bleeding, yet I have seen no commercials targeting the generic drug Warfarin. 

It is unfortunate that patients are making these decisions based 

on advertisements that I believe are not held to the same standards as the medical profession. Multiple levels of oversight and review led to the availability of these anticoagulants, which ultimately have saved lives over the course of my career. 

In my professional opinion, the positive benefit of anticoagulants 

is significant. My patients have benefited from these therapies and 

are alive today as a result of anticoagulation being part of their 

plan of care. As such, creators of these commercials should be held 

to the same standards as physicians and drug companies. 

Again, I appreciate the opportunity to speak with you today. 

Thank you very much. 

Mr. KING. Thank you, Dr. Fleming. 

And the Chair now recognizes Ms. Shely for your testimony. 

Ms. Shely. 

TESTIMONY OF LYNDA C. SHELY 

Ms. SHELY. Thank you, Mr. Chairman, Ranking Member Cohen, 

Ranking Member Conyers, and members of the subcommittee. 

Thank you for inviting me today to talk to you about lawyer advertising and regulation of lawyer advertising. 

I’m speaking today in my individual capacity. I am not representing any organizations, even though I’m a member of three 

State bars: Arizona, the District of Columbia, and Pennsylvania. 

I’m also a member of the American Bar Association and the immediate past President of the Association of Professional Responsibility Lawyers. 

For the past 24 years I have practiced exclusively in lawyer ethics, advising over 1,500 law firms around the country on legal ethics matters. I did want to note for the record, I don’t advise any 

of the firms that we’ll be discussing today regarding any of these 

commercials. So I have not been paid for any of my testimony. I 

am here on my own nickel. 

In regulating lawyer advertising, I know many of you on the subcommittee are lawyers, but I thought it useful just to summarize 

what the current status is of the regulation of lawyer advertising 

nationally. 

As you all know, lawyers are regulated, in most jurisdictions, by 

the highest court in each State. We’re not self-regulated. We are 

regulated by the judiciary. And as Ranking Member Cohen indicated in his opening remarks, we are regulated by the Rules of Professional Conduct, and those rules prohibit false and misleading 

advertising by lawyers. Any communication by a lawyer is prohibited if it’s false and misleading. 

In fact, we are so highly regulated even my pens are regulated. 

I have to have my name and contact information on my pens, because that’s considered a form of lawyer advertising. 

So in the current system that we have of State regulation of lawyer advertising, what happens is if the State regulators, whether 

it be a bar association or a committee of the highest judicial court, 

13 

receives a complaint about a lawyer advertisement, they investigate. They determine whether there is actually something in the 

ad that is false and misleading. 

So what they do when they receive that ad is investigate, and 

then the lawyer who is responsible for that advertisement may be 

disciplined. They could be disciplined for violating the rules of professional conduct if the ad is deemed to be false and misleading. 

That discipline may be changing the ad to add a disclaimer, if appropriate, to clarify the statements, or they could be reprimanded 

or even suspended if there’s found to be a violation. 

And as Representative Conyers mentioned in his opening remarks, and Ranking Member Cohen, the First Amendment protects 

those ads. And next week we actually celebrate the 40th anniversary of Bates v. the State Bar of Arizona, which was the seminal 

Supreme Court case that reminded everybody that commercial 

speech, including lawyer ads, is protected by the First Amendment. 

So when that information is protected by the First Amendment, 

as has been indicated already in the opening remarks, you have 

limited restrictions on commercial speech. Not only is it protected 

by the First Amendment, but you also are aware—and I believe my 

remarks indicate—that the Federal Trade Commission over the 

years has sent letters to various State bar regulators on the general topic of lawyer advertising indicating that overly broad restrictions of factually accurate commercial speech actually is anticompetitive and may have the detrimental effect of increasing the 

prices charged to consumers. 

I have to tell you that in the 24 years that I’ve been advising 

lawyers on legal ethics matters, including 10 years at the State bar 

of Arizona, as the director of ethics, I’ve never once heard a consumer complaining about an advertisement. 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 somebody who’s harmed. Anyone can submit to the State bar or your appropriate regulatory authority a concern about a lawyer ad so that State regulator can determine whether additional safeguards need to be put in place. 

Now, all of this information is anecdotal. The Association of Professional Responsibility Lawyers conducted a survey in 2015, which 

I incorporate as part of my remarks, and that survey of all State 

bar regulators confirmed that of the 34 responding jurisdictions of 

State lawyer advertising regulators or State bar regulators, virtually all also confirmed consumers don’t complain about being confused about lawyer advertising. 

And this is not a fact that consumers don’t know that they can 

complain, because consumers do complain, a lot, about other types 

of lawyer conduct. They’re not hesitant to complain if they are concerned about the conduct. And I ask that this committee simply 

submit any ads that you are concerned about to the appropriate 

State regulators so that they can take appropriate action, because 

the current system does work in regulating against false and misleading advertising. 

And I’m happy to answer any questions that the committee may 

have. Thank you. 

Mr. KING. Thank you for your testimony, Ms. Shely. 

14 

And the Chair would now recognize Professor Tippett for her testimony. 

Professor Tippett. 

TESTIMONY OF ELIZABETH TIPPETT 

Ms. TIPPETT. Thank you, Chairman King, thank you, Ranking 

Member Cohen and members of the subcommittee, for the opportunity to testify today. My name is Elizabeth Tippett, and I’m a 

faculty member at the University of Oregon School of Law. It’s an 

honor to be here today. 

I want to preface my comments by saying that I’m a member of 

the bar in New York and California and Oregon, and I have a great 

deal of respect for mass tort lawyers and the public interest that 

they serve. 

At the same time, it’s my strong belief that drug injury advertising is an important issue of public health and consumer protection. 

I’ve shared in my written testimony the scientific evidence we 

have to date on how these ads might be affecting the way people 

make medical decisions. But, first, I wanted to share a personal 

story with you. 

The reason I’m interested in these ads is because of a phone call 

I received from a family member several years ago, and the family 

member told me that they were canceling a surgery because of an 

attorney ad that they saw on television. It was a drug injury ad. 

And I had to explain to the family member that it was from a 

lawyer, and this is a lawyer who’s looking for clients, and that’s 

why they had that ad. 

And I asked, ‘‘Does your doctor think you should proceed with 

the surgery?’’ 

And the family member said, ‘‘Yes.’’ 

And so I said, ‘‘Look, you know, at the end of the day, you’re 

going to have to decide whether you’re going to believe this lawyer 

over your own doctor.’’ 

And the family member ultimately proceeded with the surgery, 

but I wondered, you know, are there other families who are affected by these ads too? And as lawyers, are we upholding our responsibility to communicate this important information in the most 

responsible possible way. 

I’m also married to a doctor who treats cancer patients, and I 

hear from his colleagues and other doctors in the community about 

how these ads affect their practice and their conversations with 

their patients. And when the American Medical Association issues 

a statement saying that these ads are important and we need to 

pay attention to them, we need to take that seriously. As lawyers, 

we need to take that seriously. 

I want to be clear that it is not my position that drug injury advertisements are inherently bad. I think informed consumers are 

better than uninformed consumers. And when individuals are 

harmed by a drug, they have a right to seek counsel and to bring 

a claim against the drug companies. 

But we 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. They’re 

important to the decisions of the people who see them, not just peoVerDate Sep 11 2014 04:43 May 02, 2018 Jkt 029776 PO 00000 Frm 00018 Fmt 6633 Sfmt 6602 E:\HR\OC\A776.XXX A776
15 

ple who are harmed by the drug, but also people who might be taking the drug or eligible to take the drug in the future. These advertisements almost always involve drugs that are still on the market. 

One of my studies looked at the content of these ads. 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. 

Some of them were not. Some of the ads look, essentially, like a 

dystopian public service announcement and had language like ‘‘consumer alert’’ and ‘‘medical alert’’ and ‘‘warning,’’ and then they described all the bad things that would happen to you if you took a 

drug. And sometimes from these ads it was difficult to tell that 

they were sponsored by a lawyer. 

Here’s the strange thing that I don’t understand about these ads. 

If you have been harmed by a drug, you don’t need a warning. You 

have already been harmed. Why, then, do these drugs have such 

cautionary language about the dangers of the drug? 

I actually spoke with an advertising attorney about this and 

asked why we see this language. And he explained to me that these 

ads only have a few seconds to capture consumers’ attention and 

they do what it takes to try and identify someone who has been 

harmed by a drug and who may not be able to connect their injury 

with a drug they may have taken in the past. 

Essentially, what he was telling me is that the effect on people’s 

current medical decisions is a side effect of the advertising. The 

point of the advertising is to help harmed consumers, and it has 

a side effect on everybody else who is watching it. I think we need 

to take these behavioral side effects seriously, understand them 

better, in the same way that we take seriously the medical side effects of prescription drugs. 

Now, as I explained in my testimony, the drug injury advertising 

market is complex because the entities that sponsor the advertising 

are different from the lawyers that litigate these claims. And my 

written testimony includes a number of suggestions on how we can 

make the advertising market more transparent and provide better 

guidance to advertisers on best practices. 

And part of the solution may be to have an impartial rating system for advertisers so that the lawyers who are litigating these 

claims can vote with their dollars and choose their referrals from 

advertisers that are the most ethical. 

As attorneys, we have the privilege and duty of self-regulation, 

and I don’t think we have taken that duty seriously enough. We 

need to invest more time and resources to understanding and addressing this problem. 

Thank you for the opportunity to testify today. I would be happy 

to take any questions. 

Mr. KING. Thank you, Professor Tippett. 

I thank all the witnesses for your testimony, and we’ll now proceed with the questions from the members of the panel. And I’ll 

recognize myself for 5 minutes. 

VOICE. We’re voting now. 

Mr. KING. Yes, we are. 

VOICE. Five minutes left to vote. 

16 

Mr. KING. I didn’t see that. In that case, we will recess and come 

back to this hearing. I didn’t see that. But we’re voting on the floor. 

So this committee will now recess, and we’ll return shortly after we 

conclude our votes. 

[Recess.] 

Mr. KING. The Subcommittee on the Constitution will come back 

to order and resume our business. 

At this point, the chair would ask unanimous consent to introduce a document produced by Professor Benjamin Barton, ‘‘Do 

Judges Systematically Favor the Interests of the Legal Profession.’’ 

Without objection, so ordered. 

[The information follows:] 

This material is available at the Committee and can be accessed 

on the committee repository at: 

http://docs.house.gov/meetings/JU/JU10/20170623/106162/ 

HHRG-115-JU10-MState-K000362=20170623.pdf. http://docs.house.gov/meetings/JU/JU10/20170623/106162/ 

HHRG-115-JU10-MState-K000362-20170623.pdf. Mr. KING. And I now recognize myself for 5 minutes in questions, 

and let’s see if I can pick myself up to where the thought process 

was as I finished hearing the excellent testimony of all of our witnesses. 

And one of the things that came to mind for me when I’m listening to the discussion about the ads that are affecting people’s decisions was the statement—I believe it was you, Dr. Kutinsky, if I 

can find my note—which was one single ad can eradicate professional advice. 

And the frustration that was in your voice as well as in your 

words that you build a long-term doctor-patient relationship, and 

then that patient goes home, turns on the television, it’s all erased, 

and they decide to make a decision that’s directly against their best 

health interest because of an ad. 

And does that change as the patients get older? 

Dr. KUTINSKY. I was thinking about this, and I think as patients 

age they get more frightened in general. They’re afraid of their 

health. And these are drugs that they didn’t want to take to begin 

with. Nobody really wants to be on a blood thinner or any drugs, 

really. And so all they need is like maybe a little nudge in that direction, and it gives them almost like an excuse to stop taking their 

medicine. 

But they’re frightened and they don’t know. And so, yeah, I think 

that one advertisement—I mean, this was one advertisement and 

I had known this lady for many—I mean, over 8 years when this 

happened. 

Mr. KING. The older people are, the more pharmaceuticals 

they’re likely to have prescribed to them, the higher their anxiety 

goes as a function of age. Maybe not as a function of the pharmaceuticals, but that’s also possible, I would think. 

Dr. KUTINSKY. Yeah. I think that they just—as they age, they get 

less confident in everything. They’re on 10, 11 different medicines 

and they get confused. And they lack trust. They can be preyed on 

very easily. 

Mr. KING. Do you ever watch political ads? 

Dr. KUTINSKY. Yes. 

17 

Mr. KING. Do you ever think of a comparison between what you 

describe here and political ads? 

Dr. KUTINSKY. Yes. 

Mr. KING. And sometimes the destiny of America turns on something that might be a thread of truth and leave out a whole ocean 

of information that’s necessary to evaluate. 

Dr. KUTINSKY. Yeah. I mean, I think that if there is a fair look 

at an issue—so if the ads say, there is a 0.5 percent risk of massive 

bleeding, but there’s a, you know, 70 percent benefit of preventing 

a stroke, I mean that’s a fair ad, right? So if you bleed, you take 

that risk, that 0.5 percent risk. 

And so when I describe it to a patient, that’s what I do. That’s 

what these ads should do. I’m not saying that there shouldn’t be 

ads. 

Mr. KING. If you prescribe the wrong drug, are you liable? 

Dr. KUTINSKY. Of course. 

Mr. KING. And then your medical malpractice, professional liability insurance is supposed to cover that. What’s happened to your 

premiums in the last 10 years? 

Dr. KUTINSKY. High. I mean, they’re super high. They just continue to go up. 

Mr. KING. They run in proportion with my health insurance premium, probably. 

Dr. KUTINSKY. Probably, yes. 

Mr. KING. That’s what I would think. 

So I wanted to ask Professor Tippett, as you seem to encompass 

a lot of the knowledge base necessary here to understand this, that 

if doctors are liable when they prescribe the wrong drug and then 

attorneys can advertise and spend potentially millions of dollars to 

put out a thread of truth and argue that it’s under First Amendment protection, that the thread of truth that counteracts 99.9 percent of what’s necessary, if doctors are liable, why aren’t attorneys 

liable? 

If the misinformation from attorneys brings about death or injury and doctors are paying for their professional errors, why aren’t 

attorneys paying for theirs? 

Ms. TIPPETT. So I guess—I don’t know that I agree with the position that these ads only have a thread of truth. I think attorneys 

are pretty careful that their statements are factually accurate. It’s 

just the context in which they present the information is misleading. 

And that’s my primary concern, is the context in which they provide this medical information. 

Mr. KING. Well, sure. But if a doctor, in the context of recognizing there’s a tiny little percent of a bad reaction to a drug, either prescribes a drug, understanding there’s a tiny percentage of 

a bad reaction, or fails to prescribe a drug because of a tiny percentage of a negative reaction, that doctor is liable under their malpractice. So why is there a different standard for attorneys? 

Ms. TIPPETT. So my understanding is attorneys might be liable 

under a common law tort claim, but I would be happy to provide 

you with a more complex answer on the record. 

Mr. KING. I would appreciate you introducing a more complex 

answer on the record. I know this is a very complex issue. 

18 

And so I see that my time has expired. I’d yield back the balance. 

And I turn and recognize the smiling gentleman from Maryland, 

Mr. Raskin, for his questions. 

Mr. RASKIN. Mr. Chairman, thank you very much. 

And thank all of you for really excellent testimony. 

Let’s see. Ms. Shely, let me start with you, if I could. To what 

extent is the problem that we’re talking about just a general cost 

of having the First Amendment at all? I mean, assume that you’ve 

got a drug where 1 percent of the people end up with some horrific 

side effect. Those people, they certainly have a right to go into an 

interview on the Oprah Winfrey show or to be on the news or take 

out an ad of their own, right? They still have the right of free 

speech to talk about the horrific effects on them, even if it’s not giving people the complete context that a doctor would. Would you 

agree to that? 

Ms. SHELY. Yes. 

Mr. RASKIN. And is there anything we can do about that problem? 

Ms. SHELY. Well, thank you for the question. And we do have a 

system to deal with this. We do have State regulators. 

Mr. RASKIN. Okay, for lawyers now. 

Ms. SHELY. For lawyers. 

Mr. RASKIN. Because lawyers are part of a regulated profession. 

Ms. SHELY. Correct. 

Mr. RASKIN. And the Supreme Court has said that lawyers do 

have a First Amendment right to engage in freedom of speech, including commercial speech, but it cannot be false, deceptive, or misleading, right? 

Ms. SHELY. Correct. 

Mr. RASKIN. Do you know of any cases where lawyers have put 

out ads like this that focus just on the risks and prey on people’s 

anxieties or fear and they have then been brought up on charges 

that they’re engaged in false, deceptive, or misleading speech? 

Ms. SHELY. I can’t cite you to a specific instance, because, as my 

testimony indicated, I’m not aware of anybody complaining to—— 

Mr. RASKIN. How about, Professor Tippett, are you aware of 

cases like this, where there have actually been complaints to a 

State bar or a State supreme court? 

Ms. TIPPETT. My research suggests that I could not find any evidence that any State bar has ever taken any action or this, nor has 

the FDA, nor has the FTC, and that is problematic, from my standpoint. 

Mr. RASKIN. But have there been like consumer complaints or 

complaints from people who say they were engaged in the course 

of therapy, they see, you know, a putatively terrifying ad, then they 

cease treatment, then they end up being injured because they cease 

treatment, then they make a report to the Illinois State bar or 

the—— 

Ms. TIPPETT. I have not seen—I have not access to that information, but it seems extremely unlikely that a consumer would know 

to complain to the State bar when they see an advertisement like 

this that influences their medical decisions. 

Mr. RASKIN. Okay. So the chairman made an interesting point 

about political ads. You know, I can run for office and I can say, 

19 

‘‘I’m going to build a wall and I guarantee you 100 percent Mexico 

is going to pay for it.’’ And I win the election and Mexico doesn’t 

pay for it, and nobody has any cause of action against me. I’m not 

kicked out of office. Nobody can go for money damages or injunction or whatever. 

To what extent is this just the cost of the First Amendment? The 

prescription drug companies are going to put ads out that emphasize the benefits of using the drug, and then in 100 miles an hour 

they will say, ‘‘And there’s 50 possible side effects that we hope 

you’re not going to hear in the next 3 seconds.’’ And then the lawyers, they focus on the risks in order to find, as you were suggesting, people who have already been injured by it. 

Isn’t it just like with the political market, buyer beware? We expect people to make informed choices and to try to work it out 

themselves. I don’t know if either of you has a thought on that. 

Ms. TIPPETT. I would be happy to answer that. 

First of all, pharmaceutical advertising is heavily regulated by 

the FDA, heavily regulated. These attorney ads are not. They are 

only regulated by State bars, and in that vein not enforced at all. 

And so the comparison between pharmaceutical ads and attorney 

ads I think is apt, and I think we should be as thoughtful and 

nuanced and data-driven about attorney ads as we are about 

Pharma ads. 

Mr. RASKIN. I’m with you, but who is ‘‘we’’? I mean traditionally—— 

Ms. TIPPETT. Attorneys. The State bar. 

Mr. RASKIN. Traditionally, it’s been the State bars and the State 

supreme courts that regulate this problem. And as far as I can tell, 

there have been no complaints and nobody’s brought any cases. 

And, you know, I get my lawyer magazines and I see hundreds of 

cases of complaints against lawyers. Every week lawyers are being 

complained about for this or that, not calling their clients back, not 

giving them complete information. So I’m just amazed that there’s 

never been a case like this. 

Ms. TIPPETT. So my understanding is that most consumer-related 

complaints are client-driven. And this is an unusual situation, because it’s not the clients who are injured. They’re not complaining 

about their lawyers stealing their fee. 

And so because it’s these nonclients who are affected, that’s why 

I think there’s way fewer complaints than the public health or consumer protection might suggest there should be. 

Mr. RASKIN. Okay. 

Yes, if you want to comment. 

Ms. SHELY. Let me just clarify one issue with respect to regulation of the lawyer advertising. I’m not aware of any cases involving 

any of these ads, but I believe that’s because people have not complained to the State bars about any of these ads. And all the information that we have from State regulators, and that includes many 

of the responses that Chairman Goodlatte received to his letter 

from State bars, they’re not receiving these complaints. 

And consumers do complain about lawyers all the time. They 

don’t complain just about their lawyer; they complain about every 

lawyer. And they do complain about people that they just see in 

court. So it’s not—— 

20 

Mr. RASKIN. Do they complain about advertising, about lawyer 

advertising? 

Ms. SHELY. Consumers—— 

Mr. KING. The gentleman’s time has expired. The witness will be 

able to answer the question. 

Ms. SHELY. I’m sorry? 

Mr. RASKIN. Mr. Chairman, forgive me. If I could just take 1 second to introduce into the record a letter of March 23, 2017, from 

the ABA in response to Chairman Goodlatte’s questions from Linda 

Klein. 

Mr. KING. Hearing no objection, so ordered. 

[The information follows:] 

Letter introduced by the Honorable Jamie Raskin of Maryland. 

This material is available at the Committee and can be accessed 

on the committee repository at: 

http://docs.house.gov/meetings/JU/JU10/20170623/106162/ 

HHRG-115-JU10-20170623-SD003.pdf. 

Mr. KING. The Chair would now recognize the gentleman from 

Michigan, Mr. Conyers, for his 5 minutes. 

Mr. CONYERS. Thank you, Mr. Chairman. 

I thank the witnesses. 

Lynda Shely, would any of the attorney advertisements cited by 

the witnesses or members here today violate the American Bar Association’s Model Rules, which, of course, prohibit false or misleading advertising, or any other similar State rule which you are 

familiar? 

Ms. SHELY. Thank you for the question. 

And just to clarify for the record, the American Bar Association 

Model Rules are exactly that. They don’t regulate anybody. They 

are simply models that the States then craft their own State bar 

regulations after. 

And not looking at every single ad, but at least at the ad that 

the chairman showed at the beginning of the hearing, if a lawyer’s 

name and address are not present, that absolutely would violate 

ABA Model Rule 7.2(c). You must have a lawyer’s name and address in all communications, again, including my pens. That’s a 

communication about a lawyer. That is regulated by the Rules of 

Professional Conduct. And if that’s not there, then that bar that 

would have jurisdiction over that lawyer could subject that lawyer 

to discipline. 

Mr. CONYERS. Does that happen much? 

Ms. SHELY. Bar associations will receive complaints about lawyer 

advertising, and virtually all of those complaints are from other 

lawyers. Consumers rarely ever complain about seeing something 

on TV or on a billboard or in a print ad. It’s always other lawyers 

who complain. 

When a bar association does receive a complaint, they will go 

through the Rules of Professional Conduct adopted in that jurisdiction, and they will either ask that the lawyer put something clarifying in the ad if they think that it’s confusing or creates unjustified expectations, or they may even discipline that lawyer through 

a reprimand, censure, or suspension. 

Mr. CONYERS. Let me ask you this about the constitutionality. 

The American Medical Association’s recent resolution recommended 

21 

that attorney advertisements should be required to include a warning that patients should not discontinue their medications without 

first consulting their doctor. Do you think that’s constitutional? 

Ms. SHELY. An appropriate disclaimer in an ad, if the ad otherwise would create an unjustified expectation, may be appropriate, 

and that’s going to be decided on a State-by-State basis. 

Mr. CONYERS. Anybody else want to—yes, please. 

Dr. KUTINSKY. I think there’s a difference with these ads. Like 

so you said that people—that the patients aren’t complaining, there 

haven’t been any complaints. The patients don’t actually know that 

the ads are false. That’s part of the problem. 

So if an ad states that a drug can cause massive internal bleeding and death, they don’t—the patient doesn’t know that’s right or 

wrong. The patient doesn’t go and get the medical literature and 

do a medical literature review. The physicians know that that’s 

wrong. The physicians are angry about it. But the patient doesn’t 

know that it’s wrong. That’s why it’s misleading. 

The Pharma ads, you still require a visit with your physician. 

You need a prescription. And so there’s still a physician-patient relationship. So who cares what the Pharma ads say, you still need 

a prescription to get the drug. You still have to go through a physician. 

The lawyer ads don’t necessarily make you talk to your physician 

to stop your drug. They’re just out there saying, this is a side effect, a big side effect, warning. 

Mr. CONYERS. Anybody else want to chime in? Yes, sir. 

Dr. FLEMING. Yes, sir. To the earlier point, I would say about the 

First Amendment, if I walk into a patient’s room and give them 

bad advice and they have a bad outcome, I can’t claim the First 

Amendment and my ability to say whatever I want as defense. 

And it’s my belief that these commercials enter into the territory 

of making medical—giving medical advice. And when you’re giving 

medical advice, I believe you have to be held accountable for the 

outcomes, because I certainly am. 

Mr. CONYERS. Very good. 

Let me ask this question to Ms. Shely. Professor Tippett suggests 

that State bars consider more deregulation of attorney referral fees, 

clearly allowing advertisers to receive referral fees. What do you 

think of that? 

Ms. SHELY. The ABA Model Rules require that if a lawyer whose 

advertising is not going to be the one taking the case, the referral 

has to be disclosed. So if an ad doesn’t include that disclosure, if 

you want to run an advertisement for a bad drug but you’re not 

actually the lawyer who’s going to handle that case, you are supposed to disclose under the ABA Model Rules how you’re referring 

that. 

The referral fee is not the driving force there as much as you 

have to identify who is actually going to handle that case. So that 

would be the disclosure that would be appropriate for these ads. 

Mr. CONYERS. Any other comments? 

Thank you, Mr. Chairman. I yield back. 

Mr. KING. I thank the ranking member from Michigan. 

The chair now recognizes the gentleman from New York for his 

5 minutes of questions. 

22 

Mr. NADLER. Thank you. 

I have a couple of questions and comments. 

First, let me just say, Dr. Fleming commented a moment ago, 

there is a much heavier burden for prior restraint than there is for 

punishment afterwards. In other words, it’s a much heavier constitutional lift to say, ‘‘You may not say that,’’ than there is for saying, ‘‘You shouldn’t have said that and, therefore, we will penalize 

you because some bad outcome occurred.’’ It’s a bigger First 

Amendment problem to prohibit speech in advance. 

Professor Tippett, you write in your testimony about the state of 

scientific literature regarding people—what we’re talking about, regarding people stopping their medication because of an ad. And you 

say, ‘‘I am not aware of any large-scale observational research that 

establishes a causal link between drug injury advertising and patient decisions. It is possible that attorney advertising has no aggregate effect on whether consumers decide to discontinue a prescribed medication. Brian Chen and I conducted a study of Medicare prescription reimbursement data over a 1-year period and did 

not find any evidence that increased drug injury advertising volume was associated with a decrease in prescription rates.’’ 

You then go on to cite some other studies which are suggestive, 

but not at all dispositive. 

You are here testifying, as are some fellow witnesses, that this 

is a serious problem that we should deal with, and yet you’re saying that you’re not aware of any large-scale observational research 

that establishes this causal link. Until we have such large-scale observational research, why should we act? 

Ms. TIPPETT. Thank you for asking about that. 

It’s really hard to establish a causal link as a matter of observation. As a matter of science, it’s really hard. And because the research is at such an early stage, I wouldn’t be surprised that we 

haven’t yet found a causal link. But that doesn’t mean there isn’t 

one. For example, Brian Chen, our study only involved 1 year. 

Mr. NADLER. Hold on. I get that point. But we should act and 

limit these ads on the possibility that there’s a causal link? 

Ms. TIPPETT. Okay. So first of all, my recommendations, as you 

know from my written testimony, don’t say we should limit the ads. 

But second, we do have other evidence. I mean, large observational 

studies are not the only way to prove things, through scientific experiments. 

So we have evidence from the Federal adverse event database, 

admittedly sponsored by Janssen Pharmaceuticals, that found that 

31 patients did base their medical decisions on the attorney advertising and 2 of them died. I mean, in my mind—— 

Mr. NADLER. Thirty-one out of how many? 

Ms. TIPPETT. I don’t know, because the Federal adverse event 

database is only looking at the people who reported adverse events. 

But, in my mind, if anybody is dying, we should be taking that seriously as a profession. 

Mr. NADLER. And what is your recommendation? 

Ms. TIPPETT. My recommendation is that we need to study this 

further so that we actually know which content is misleading, so 

that we can provide good advice to the advertisers, and then make 

possible—make more information available to the attorneys receivVerDate Sep 11 2014 04:43 May 02, 2018 Jkt 029776 PO 00000 Frm 00026 Fmt 6633 Sfmt 6602 E:\HR\OC\A776.XXX A776
23 

ing the referral so they can choose ethical advertisers over unethical advertisers, and see if we can use informational and marketbased forces to improve the quality of advertising overall. I don’t 

think that’s unreasonable. 

Mr. NADLER. Okay. Let me ask you a different question. 

As large or perhaps much larger than advertising that says, ‘‘If 

you’ve been injured by, you know, such and such a drug, call us, 

we may get you a fortune,’’ is advertising that says, ‘‘If you have 

restless leg syndrome, which we just invented, call your doctor and 

tell him to prescribe whatchamacallit.’’ Is that harmful? Should we 

regulate that? 

Ms. TIPPETT. Are you asking me? 

Mr. NADLER. Yes. 

Ms. TIPPETT. I think that’s an excellent question, and I would 

love to provide an answer on the record. 

Mr. NADLER. Go ahead. 

Ms. TIPPETT. In written—— 

Mr. NADLER. Oh. 

Ms. TIPPETT [continuing]. In writing on the record, because I 

want to look into it. Because those ads are called disease 

mongering, and they occupy a special little pocket of regulation. 

Mr. NADLER. Well, not necessarily disease mongering. Let’s say 

it’s not restless leg syndrome, it’s some legitimate real disease, and 

they tell you, ‘‘Call your doctor and ask him to prescribe such and 

such a drug,’’ which may or may not be—— 

Ms. TIPPETT. Oh, well, those ads are already regulated by the 

FDA, so I’m not as worried about them, because there’s substantial 

oversight from the FDA. 

Mr. NADLER. Ms. Shely, would you comment on that? 

Ms. SHELY. Well, there’s also substantial regulation of lawyer advertising. If people have a concern, they need to bring it to the 

State bars so that they can review the ads. Because the content in 

the ads varies so drastically, we don’t have just one bright line rule 

that says, ‘‘Well, you can say this and you can’t say this.’’ 

In addition to the First Amendment issues of prior restraints and 

limiting what restrictions we have on commercial speech, there are 

also significant anticompetitive effects to adding additional regulation. And you want consumers to be aware of what actual risks are. 

And so the only thing that I would disagree with some of the testimony that the ads are false, I don’t think they’re false, because 

they’re factually accurate. Whether they create an unjustified expectation is something that each State bar needs to look at. And 

whether an additional disclaimer in those ads will even help is 

questionable. 

Mr. NADLER. My time has expired. I thank you. 

Mr. KING. The gentleman returns his time. 

This concludes today’s hearing. I thank all the witnesses for attending and for your testimony. 

All members will have 5 legislative days to submit additional 

written questions for the witnesses or additional materials for the 

record. 

This hearing is now adjourned. 

24 

[Whereupon, at 11:37 a.m., the subcommittee was adjourned.] 

Æ