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Bell & Gaerte: 3 things to know about legal advertising

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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.•

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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.

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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