ILNews

Bell & Gaerte: 3 things to know about legal advertising

Back to TopCommentsE-mailPrintBookmark and Share

Bell Gaerte 3 thingsThe Indiana Rules of Professional Conduct define the term “advertising” broadly. Ind. Professional Conduct Rule 7.2(a) defines “advertising” as “any manner of communication partly or entirely intended or expected to promote the purchase or use of professional services.” (Emphasis added) Therefore, these rules cover communications on your website, blog and even social media. Regardless of whether or not you advertise on billboards, you likely need to pay attention to the advertising rules. Here are three things to know about legal advertising.

1. The truth will not always set you free.

Indiana Rule of Professional Conduct 7.1 states that: “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.” This rule also states that a communication may be misleading if it “omits a fact” which makes the communication a material misrepresentation. Therefore, the fact that every representation included in a communication can be verified is not enough to satisfy the requirements of Rule 7.1. If you truthfully state in an advertisement that you have “never lost a jury trial,” that statement will be considered misleading if you have never actually tried a jury trial. Simply being literally truthful is not sufficient.

An illustration of a “misleading” advertisement can be seen via In the Matter of Gerling, 777 N.E.2d 1097 (Ind. 2002). In that case, a law firm’s billboard advertisement stated “Expect more from a Gerling attorney.” All of the individuals on the billboard were employees of the firm, but one was not a lawyer. Gerling argued that the material was not misleading because there was no claim that everyone pictured was an attorney. However, the court found that the advertisement was still misleading because not everyone on the billboard was an attorney – from whom you could “expect more.” Id. at 1097-98.

2. Advertise your “commitment” to obtaining results.

The Comment to Rule 7.1 prohibits “any reference to results obtained that may reasonably create an expectation of similar results in future matters.” The Supreme Court of Indiana disciplined an attorney who stated in his advertisement that he could “obtain the best possible settlement” because it likely created unjustified expectations by prospective clients. Matter of Wamsley, 725 N.E.2d 75-77 (Ind. 2000). However, the Supreme Court determined that the “commitment to obtaining the best possible settlement” was not impermissible. Matter of Benke and Crawford, 892 N.E.2d 1237, 1239 (Ind. 2008). In doing so, the court explicitly distinguished an advertisement’s promise to obtain a result from the promise to be committed to the same. In your marketing materials, emphasize your “commitment to results” and de-emphasize or eliminate your reference to the actual results themselves.

3. Don’t trust your final marketing product to a non-lawyer.

Many attorneys have faced disciplinary issues because they delegated the task of producing an advertisement to an advertising agency or a non-lawyer staff member in his or her firm. Guideline 9.1 of the Indiana Rules of Professional Conduct states that “a non-lawyer assistant shall perform services only under the direct supervision of a lawyer.” Rule 5.3 of the Indiana Rules of Professional Conduct further discusses responsibilities regarding non-lawyer assistants. On a number of occasions, the Supreme Court of Indiana has found a lawyer’s conduct in violation of the Rules of Professional Conduct for the failure to supervise a non-lawyer.

For example, the court found that an attorney violated Rule 9.1 when he allowed his assistant to place an advertisement containing objectionable content. In re Cartmel, 676 N.E.2d 1047 (Ind. 1997). The advertisement was published multiple times before the attorney saw it, at which point he “promptly cancelled it.” Id. at 1049. However, the cancellation was too late for disciplinary purposes. The Supreme Court of Indiana emphasized that the attorney was ultimately responsible for any advertising material created on his behalf and if the material was objectionable he was ultimately responsible. The main lesson here is that all final products produced for an advertisement must be reviewed by a lawyer to ensure that the advertisement complies with the Rules of Professional Conduct.•

__________

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 via email 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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Compromising precious constitutional rights in order to protect them? Rather like the military intelligence slogan that the town had to be destroyed in order to save it. Looks like Joseph, Mary and Baby Jesus will have quite the eventful Boxing Day this year. Wise men will arrive to find no one to accept their gifts? Oh well, wisdom not all that desired this xmas anyway. Maybe the ACLU and Christian attorneys can work out a "three days every third year" visitation compromise and all of this messy litigation stuff can just be boxed up as well? It is an art form, now isn't it? Thomas More, a man of manifold compromises is undoubtedly cheering on wildly.

  2. From the MCBA: “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer. HOPING that the MCBA will denouce the execution style killig of two NYC police officers this day, seemingly the act of one who likewise believes that the police are targeting blacks for murder and getting away with it. http://www.mediaite.com/online/two-nypd-cops-fatally-shot-in-ambush-in-brooklyn/ Pray this violence soon ends, and pray it stays far away from Indiana.

  3. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  4. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  5. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

ADVERTISEMENT