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Attorneys scrutinize ad ruling

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Two Indianapolis law firm partners wonder why they were not given a chance to prevent potential lawyer advertising violations as colleagues have been given off and on through the years.

Scott A. Benkie and Douglas A. Crawford received public reprimands Sept. 4 from the Indiana Supreme Court, with justices finding they'd violated a pair of professional conduct rules regarding lawyer advertising because of two print brochures they'd sent years ago and no longer use.

The ruling has revived debate about how the court's Disciplinary Commission regulates lawyer advertising, causing the legal community to once again look at the professional conduct rules and question whether any change is needed.

Reaction reverberating across the state is that the rules aren't clear and many attorneys don't fully understand what's required or not allowed, a mentality that even the state bar association recognized two years ago when submitting proposed rule changes to the Indiana Supreme Court's Rules of Practice and Procedure Committee for consideration. Though the high court has been silent so far, the proposed rule revisions overlap with the issues in this latest disciplinary ruling and show how much confusion exists.

"We've gotten numerous calls from other lawyers who don't understand what we did wrong, and it's not something we completely understand," Crawford said. "We lawyers are treading in murky water on these issues. I'm not sure what more we could do."

In the combined decision, In the Matter of Scott A. Benkie and Douglas A. Crawford, Nos. 49S00-0402-DI-82 and 49S00-0402-DI-83, the court issued public reprimands to the attorneys for misconduct because of the wording used in the brochures designed to solicit clients.

Those direct mail brochures were first submitted to the Disciplinary Commission in 1996 and 2001 respectively with the $50 filing fee for each, as required by Professional Conduct Rule 7.3(c). A letter sent with the first brochure invites the commission to contact the firm with any questions or concerns. The attorneys received a letter noting the office does not render advisory opinions on the propriety of targeted solicitations submitted for approval.

The Disciplinary Commission in February 2004 charged them with violating Rules 7.2(b) that governs the use of a public communication containing a false, fraudulent, misleading, deceptive, selflaudatory, or unfair statement or claim; 7.2(c)(3) that governs use of a statement intended or likely to create an unjustified expectation; 7.2(d)(2) that governs the use of public communication that contains statistical data or other information based on past performance or prediction of future success; and 7.3(c) that governs solicitation of professional employment without the words "Advertising Material."

In one brochure, the phrase "commitment to obtaining the best possible legal settlement for you and your family" was included as well as the term "Legal Advertisement." That was later changed to "Advertising Material" - as required by the rule. The brochures were filed with the Disciplinary Commission as required by Rule 7.3(c); the attorneys never received a letter from the commission advising them to change the language. The commission sometimes has notified lawyers when changes need to be made.

Justices found the attorneys didn't violate Rule 7.2(c)(3) or 7.2(b) with the phrase "commitment to obtaining the best possible legal settlement" because the phrase only promises prospective clients a commitment to their cases, not that the attorneys can obtain the best possible settlement.

But the court decided that Benkie and Crawford did violate the rules by not including "Advertising Materials," and the use of "Legal Advertisement" on earlier brochures was a violation because it may give the impression the commission or another body had reviewed it and found it to be "legal." The use of quotes from newspapers on their performance isn't allowed because the information could be edited and selectively used to mislead clients, the court wrote.

Justices found the fact the attorneys sought advice from the commission regarding their advertising materials mitigates the degree of their culpability; however, the rule requiring the filing of advertising materials with the commission doesn't require the commission to review materials for violations. The court noted that the requirement encourages self-policing by attorneys and preserves a record of the advertisement in case there is a dispute.

Chief Justice Randall T. Shepard and Justices Brent Dickson and Theodore Boehm concurred while Justices Frank Sullivan and Robert Rucker concurred, except they would have found no violation relating to the use of newspaper quotes in their advertising brochures.

Even after the court's decision, Benkie and Crawford don't grasp why they were singled out. In researching the Disciplinary Commission's filing and approval process, they found 150 letters dating back as far as 1990 that frequently gave attorneys and firms a chance to correct identical issues in lieu of a formal investigation.

One unsigned, handwritten note questions whether a warning letter should be sent instead of filing charges. A letter dated March 2000 points out how an Indianapolis attorney faced a potential violation for using the phrase "Legal Advertising Material" - as Benkie and Crawford had done. That letter states, "I believe that use of the description ... might lead the reader to conclude that it is advertising material that has somehow been determined to be lawful or otherwise approved by some official body. While I know that it was not your intent to convey this meaning, I would appreciate it if you would correct it to be in strict conformity with the rule and resubmit it."

Dozens of letters offer a chance to revise submissions, others include comments about the commission not able to give legal advice and not able to conduct any approval or disapproval functions. A common theme in the letters is a statement from the commission staff attorney that says "the office is not staffed or funded to do pre-approvals on such submissions."

Crawford and Benkie dispute the notes about the commission not conducting any approval or disapproval functions, as it obviously happens in certain cases and they found many examples in the commission's filings.

"We didn't realize they were reviewing on a selective basis, and we were surprised to find that out," Crawford said. "We found that to be disconcerting because you'd think that all attorneys are treated the same."

Attorneys who represent law firms and lawyers on these types of issues caution them to be as careful as possible and know what the existing rules are.

"Lawyers need to pay closer attention to their advertisements, and be careful not to step over the lines that exist in the Rules of Conduct, even in some cases where the representations are absolutely true," said partner Karl Mulvaney with Bingham McHale. "There is no question that Indiana may be as restrictive as any state on lawyer advertising. Some may view the rules as harsh; but in the end the Supreme Court's intent is to allow truthful, and not misleading advertising, so as to protect the public."

Mulvaney has observed attorneys sometimes inadvertently violating the rules by turning marketing activities over to marketing firms that don't understand or appreciate the restrictions. Lawyers should always review any proposed advertisements to make sure they comply, he said.

Harrison & Moberly attorney David Russell said he believes this opinion will make the legal community more mindful of the rules rather than have a chilling effect on lawyer communication, as he's heard some suggest.

"This can at least help educate and offer some guidance on moving through the profession, what you should worry about down the road in this area," he said.

But others are observing a problem with how the lawyer advertising rules are constructed and the regulation system that can seem arbitrary and inconsistent.

"It is not that anyone is trying to sidestep the rules; there is just too much ambiguity out there," said Bob Birge of the Indianapolis-based Law Firm Marketing Network."It's a gray area where the answers are not as clear as perhaps they should be. What I'm hearing from firms around the state is that they're looking for direction and consistency."

Possible changes are already in the works, but proposed revisions are moving slowly through the review process and no timeline exists for when they might receive final consideration. A special committee had been studying advertising rules since early 2006 and hammered out revisions designed to provide more clarity and guidance on new forms of advertising and communications that have appeared since first adopted in the mid-1980s. Changes in Section 7 hit specifically on the provisions addressed in Benkie and Crawford - not changing the intent but cleaning up language to make it more clear about the type of solicitation used and the audience receiving that material.

A point that didn't come from that study committee, though, involved changing how Indiana's regulation setup works for lawyer advertising. Committee members weren't able to fashion a useful review system for pre-approval of lawyer advertising, such as providing a safe harbor clause for careful attorneys who might have done what Benkie and Crawford did in consulting the commission. The sticking point came down to the perceived administrative burden that would be created; models in other states showed annual operating expenses for such a system from $200,000 to $609,000.

Indiana's Disciplinary Commission just doesn't have the resources to regulate the volume of advertising out there, said the commission's Executive Secretary Donald Lundberg. He said it wouldn't be fair to tax all attorneys for regulation - putting the burden of regulating advertising attorneys on those who don't advertise. Instead, the commission requires a $50 filing fee for any written, recorded, or electronic communication from a lawyer specifically soliciting to a prospective client.

"It's a filing requirement, not a review process," Lundberg said. "The Supreme Court is saying here that although there may be lawyers who've received the benefit of an informal advisory, lawyers don't have that right."

Between July 1, 2007, and June 3, 2008, the commission collected $10,300 in filing fees, which translates to an estimated 206 targeted solicitations, Lundberg said. That figure conservatively illustrates the amount of advertising out there as some may not have re-filed for minor changes. That doesn't count materials the commission may not even realize exists.

"We get filings and fees sent to our office where it's clear that the lawyer is sending out without regard to who's receiving," he said. "We return the filing and fee to the lawyer, saying it's not a targeted solicitation. That takes time."

Commission staff looks at the materials for glaring violations, but they aren't always capable of doing an in-depth investigation, Lundberg said. They don't have the resources to explore accuracy and all other potential violations with each filing, but they do their best and also rely on the public and legal community to report known violations.

Lundberg reminds the legal community that the efficiency of the state's lawyer advertising rules will always be up to individual attorneys - no matter what they say.

"Regulation of lawyer advertising is like the regulation of speed limits. In the sense of the limits you have on having so many cars and so few police patrols, comprehensive regulation of those speed laws is impossible. Police don't pretend to be able to get every speeder, but if you have the misfortune of driving down that particular road at a time they see you, you're going to get ticketed," he said.

"We hope, that just like the police speeding enforcement, that all this will have some general deterrence effect," he said. •

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  1. This guy sounds like the classic molester/manipulator.

  2. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  3. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  4. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  5. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

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