Ah, the murky, wild world of attorney advertising, where it pays to be the loudest, the most outrageous and the least transparent. Watch any amount of daytime television and you’ll get the picture.

Attorney advertising was prohibited for many years, viewed as in indirect form of barratry (“ambulance chasing”), until a U.S. Supreme Court decision deemed it acceptable speech under the First Amendment. Since then, attorney advertising has largely been regulated by the State Bar of Texas, which implements rules enacted by the Texas Supreme Court. These rules govern the content of advertising and are meant to protect the public by ensuring attorney ads are not deceptive. They also require that the State Bar of Texas pre-approve attorney ads.

That’s why we were interested to see a recent direct mail ad from a prolific storm-chasing lawyer out of Houston. This attorney has built a cottage industry around weather-related litigation. His most recent target is property owners impacted by Texas’ historic winter storm in 2021. 

Much of the language in the ad is problematic. The ad includes a bolded and underlined statement near the top that the attorney’s fee will be 33.3 percent… until you read the fine print. The fee jumps up to 45 percent the minute the lawyer files a lawsuit or pursues mediation or appraisal—which is almost guaranteed to happen. 

lso within that paragraph are a host of provisions that allow the attorney to unilaterally decide whether to settle a lawsuit without requiring the client’s input, allow the attorney to sign a client’s name to a check, and absolve the attorney of the need to actually speak to the client regarding any aspect of the lawsuit, among others. This type of conduct is grounds for discipline by the State Bar.

Like you, we have a lot of questions.

How can any attorney claim to effectively handle litigation in the best interests of the client without ever actually speaking to the client? 

Why is an attorney necessary when invoking the appraisal process, which was specifically designed to save homeowners the expense of hiring an attorney?

And most importantly, how on earth did this pass the State Bar of Texas’ advertising review process?

It’s possible that this ad was never submitted for review, a loophole in the State Bar’s regulatory authority that essentially allows attorneys to ask for forgiveness, not permission. But if it did pass the State Bar’s smell test, it’s time to take a look at the rules for attorney advertising, or at least the process and committee that handles the approval of ads like this one.

Otherwise, it appears that blatantly flouting the rules, as this ad does, isn’t prohibited. It’s only frowned upon.