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Lawyers question enforcement of advertising rules

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One of Indiana’s most familiar legal names – a frequent flier on buses, billboards and TV commercials – says enforcement of disciplinary rules governing attorney advertising is a mess and needs an overhaul.

“It’s enforcement by ambush,” said longtime personal-injury attorney Ken Nunn of Bloomington-based Ken Nunn Law Office. “I’m terrified I’m going to accidentally mess up. This shouldn’t be on my worry plate.”

Nunn and others say Indiana’s attorney advertising regulations are unclear, unevenly enforced and offer little practical guidance to avoid running afoul of the rules. A technical or even an unknowing violation can result in a costly and time-consuming disciplinary case.

“The whole process of helping lawyers, that’s gotten lost in the shuffle,” Nunn said. “Other states are helping their lawyers.”

advertising-caress-15col.jpg Caress Law Group advertises on an Indianapolis billboard. (IL Photo/Eric Learned)

But the Indiana State Bar Association is taking tentative steps in that direction and might be looking to the Bluegrass State for guidance. The Kentucky State Bar has developed a pre-approval system in which its Attorneys’ Advertising Commission reviews ads in advance to ensure they comply with state Supreme Court rules. If an ad contains only information specifically permitted under state rules – things such as name and address, practice areas, education and the like – the review is free. A fee of $75 to $175 applies for other ads.

Nunn said he thinks most attorneys who advertise would gladly pay a fee for advance approval that also buys peace of mind. “Charge me,” he said. “I’ll sleep at night.”

Calls for changing the state’s attorney advertising rules enforcement increased after the recent Supreme Court disciplinary action In Re: Anonymous, in which Crown Point attorney Tim Kelly was issued a private reprimand for testimonials appearing on the Law Tigers website and for failing to include an address on a communication. Kelly was affiliated with Law Tigers but had no control of content that appeared on the site.

keller A Keller & Keller billboard in Indianapolis. (Photo courtesy Lamar Advertising Co.)

Ronald Layer, a partner in the Dyer law firm Layer Tanzillo Stassin & Babcock P.C., chairs the Attorney Advertising Committee of the Indiana State Bar Association. Layer said his committee and the bar’s Ethics Committee recently formed a subcommittee to explore changing the regulatory system.

“Our hope is to either get some sort of pre-approval or the next-best thing,” Layer said. That might be an advisory opinion that would assure an attorney who has sought pre-approval that “they’re not going to get whacked” over the content of an ad.

“In the meantime, we’re trying to disseminate as much information as we can so attorneys can at least get some help, albeit at this point kind of unofficial,” he said.

Layer said he was sympathetic to Kelly’s situation. “This is someone who tried to get information and tried to do what was right. Maybe it was a misstep, but was it an intentional breach? One would argue absolutely not.

 

advertising-wamsley-15col.jpg Vaughn Wamsley advertises with a billboard near Interstate 465. (IL Photo/Eric Learned)

“The point is, if we can get these committees going in the direction we’d like them to go, the Law Tigers thing wouldn’t have happened,” Layer said.

Certain regulations on attorney advertising have been struck down on First Amendment grounds in Florida, Louisiana and New York, among others. The very definition of advertising varies from state to state, as do the rules, and some critics say rules haven’t kept pace with an age where a website might be viewed as a law firm’s address.

Nunn’s firm advertises heavily, spending about $2.5 million annually. He said the firm typically is either No. 1 or No. 2 in the state, neck-and-neck with Keller & Keller P.C. of Indianapolis.

Carmel attorneys at Hollingsworth & Zivitz pay to build their brand, but partner Kena Hollingsworth estimated less than 5 percent of firm revenue goes toward advertising.

The firm’s lawyers and staff brainstorm to come up with sometimes-cheeky and attention-grabbing ads like the IndyGo full-bus wrap that carries the firm’s 317-DIVORCE phone number and the slogan “Hire us before your spouse does.”

“When we started the firm almost 10 years ago now, we were young girls just out of law school, so we knew we had to do something to set ourselves apart a little bit,” Hollingsworth said. “We don’t take ourselves too seriously, but we are serious lawyers.”

Advertising-BlackburnGreen-15col.jpg A Blackburn & Green billboard. (IL Photo/Eric Learned)

But she acknowledged compliance with advertising rules is always a concern in those brainstorming sessions, and she’d favor a pre-approval system. “I think it would be great,” she said.

“We’re always very mindful of what the rules are,” Hollingsworth said. “First and foremost, we would never misrepresent ourselves or do anything unethical.” The firm’s business is about 90 percent family law, she said, and its ads aim to present an image that clients feel they can relate to during an emotional time.

“That’s the overwhelming feedback I’ve received,” she said of the firm’s ads. “At the end of the day, that’s how we get clients in the door.”

Terre Haute personal-injury attorney James O. McDonald acknowledges that it’s sort of an advertisement when his firm’s website contains the message, “Non Advertising Trial Lawyers.” But it also hammers home a point he thinks resonates with potential clients: “I choose not to march in that parade.”

ken-nunn3-15col.jpg Ken Nunn advertises on an IndyGo bus. (IL Photo/Submitted photo)

“I think when clients come to an attorney through advertising, they’re less apt to have confidence in the lawyer’s advice when it comes to personal-injury work,” McDonald said, averring that firms which advertise heavily have a “factory” reputation and may settle cases for less than they’re worth. He believes advertising can backfire, especially direct solicitations to people injured in accidents. He said he’s had clients who “resent it very much.”

“To me, the worst thing (lawyer ads) do is give the potential jury pool the impression that people are trying to get something for nothing.”

Hall Render Killian Heath & Lyman P.C. partner John C. Render said he’s concerned that clients who choose an attorney on the basis of an ad might not be making the best choice. Render said his firm limits advertising to such communications as sending informational newsletters to existing clients.

“What it may come down to is the public chooses a lawyer based on who has the most resources to advertise,” he said. “There’s something intuitively wrong with that in my mind, and I don’t think it serves the public very well.

hollingsworth-zivitz-bus-15col.jpg Hollingsworth & Zivitz P.C.'s advertisment on an IndyGo bus. (IL Photo/Submitted photo)

“If I can advertise or want to with a TV ad, am I going to get more calls, more clients, etc.? I might … because advertising works,” Render said. “I’m just not sure it has the same value in choosing professionals.”

Nunn acknowledges that being a heavy-advertising attorney carries a stigma, but he rejects the “settlement factory” criticism. He’s heard it, “and yet, we lead the state of Indiana in terms of doing the most jury trials for injured clients,” he said.

He also doesn’t accept claims that the public can’t be trusted to choose or not choose a lawyer based on advertising. “We can trust them as jurors,” Nunn said, “but somehow they’re too dumb to understand what an advertisement is.”•

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  • Prior Restraint
    I don't have any problem with the bar association reviewing ads before publication and issuing an advisory opinion, but if this creates a defacto mechanism for prior restraint, I think that's handing over First Amendment rights that we should be fighting to preserve.

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  1. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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