ILNews

Bell/Gaerte: 3 things to know about ethical responsibility for others’ conduct

Back to TopCommentsE-mailPrintBookmark and Share

Bell Gaerte 3 thingsMuch has already been written about the recent Matter of Anonymous that was issued by the Indiana Supreme Court April 11. 6 N.E.3rd 903 (Ind. 2014). In this case, the respondent was found to have violated the Indiana Rules of Professional Conduct, including Rule 7.1, for making “a false or misleading communication about the lawyer or the lawyer’s services” due to various testimonials, settlements and verdicts that appeared on a website. 6 N.E.3rd at slip op. 6.

While that seems fairly standard, what made this case stand out from a more run-of-the-mill disciplinary advertising decision was that the “settlements, verdicts, or testimonials” on the website were not the respondent’s. Id. at 3. Instead, the website was run by an organization that entered into a license agreement with the respondent and whose website identified the respondent as the organization’s exclusive source for legal services in Indiana. Id. at 2.

The website posted the organization’s results and provided testimonials like the organization “changed my life in a big way and my family received our fair share or justice.” Id. at 3. The Anonymous decision noted that while none of these communications “related to the Respondent, the website did not disclose that they did not relate to Respondent.” Id. The court reasoned that “the average viewer could not differentiate between Respondent and the statements about [the organization] on the [organization’s] website and that Respondent is therefore responsible for objectionable content on the website.” Id. at 6 (brackets added). (Read more about the case and the attorney disciplined.)

This is not the only time someone in Indiana has been disciplined for the conduct of another. Here are three things to know about the ethical responsibility for the conduct of others.

1. Local counsel can be responsible for co-counsel’s statement in a pleading

In Matter of M.W., 777 N.E.2d 714, 717 (Ind. 2002), the respondent was found to have violated Rule 8.2 of the Indiana Rules of Professional Conduct for making statements “with reckless disregard as to the truth or falsity concerning the integrity of a three-judge panel of the Court of Appeals.” Specifically, the court took issue with statements made in a footnote in a petition to transfer. Id. at 716-7.
 

LEARN MORE
James J. Bell also provides his unique insights to life and the law as The Amateur Life Coach at www.iclef.org. Videos 2 and 5 relate to the issues discussed here.

However, the respondent did not make the statements in the footnote. Specifically, the court noted that “the language of the footnote was not authored by the respondent but by an out-of-state co-counsel.” Matter of M.W., 782 N.E.2d 985, 987 (Ind. 2003). In making this ruling, the court cited to the fact that the signing and filing the brief at issue constituted “joint responsibility pursuant to Indiana Admission and Discipline Rule 3(2)(d).” Id. Therefore, a lawyer can be held ethically responsible for the statements of co-counsel in a pleading.

2. An attorney is responsible for the actions of his or her staff

Let’s say your secretary posts something confidential on Facebook, your bookkeeper bungles the accounting on your trust account or the private investigator you hired has a penchant for interviewing represented people about the matter for which they are represented. If these three people were lawyers, your secretary would have violated Rule 1.6 of the Indiana Rules of Professional Conduct, your bookkeeper may have violated Rule 1.15 of the Indiana Rules of Professional Conduct and your investigator would have violated Rule 4.2 of the Indiana Rules of Professional Conduct.

Good thing they are not lawyers. If the Disciplinary Commission calls you, can you successfully argue, “It was not me, it was them?” Maybe. Under Rule 5.3 of the Indiana Rules of Professional Conduct, a lawyer with “managerial authority” “shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with” the Rules of Professional Conduct. So, if you can show your “reasonable efforts” to supervise your staff, you should be able to avoid ethical responsibility for the actions of your staff.

3. An attorney is responsible for the actions of his or her marketing agent

So now we have to come back to advertising. Without going into too much detail regarding the advertising rules, the rules don’t allow you to talk about past performance, make references to results or give testimonials. (Although Rule 7.2 does allow an attorney to boast that he or she has malpractice insurance, which is always a big selling point with clients.) So what is a marketing agent supposed to do besides gouge his or her eyes out?

I am not sure. However, you could see how a trained marketing agent, who wants to exercise his or her talents, would feel restrained by these Rules of Professional Conduct and may feel inclined to ignore the rules at your peril. Under Rule 5.3, you are responsible for the marketing agent’s actions. Many grievances have been issued when the marketing agent runs afoul of these rules and the supervising attorney is asleep at the switch. If you hire a marketing agent to do your ads, make sure you make the final call on what is produced.•

__________

James J. Bell and K. Michael Gaerte are attorneys with Bingham Greenebaum Doll LLP. They assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal defense and are regular speakers on criminal defense and ethics topics. They can be reached at jbell@bgdlegal.com or mgaerte@bgdlegal.com. The opinions expressed are those of the authors.

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  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?

ADVERTISEMENT