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

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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.
 

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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.•

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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 at jbell@bgdlegal.com or mgaerte@bgdlegal.com. The opinions expressed are those of the authors.

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  1. Should be beat this rap, I would not recommend lion hunting in Zimbabwe to celebrate.

  2. No second amendment, pro life, pro traditional marriage, reagan or trump tshirts will be sold either. And you cannot draw Mohammed even in your own notebook. And you must wear a helmet at all times while at the fair. And no lawyer jokes can be told except in the designated protest area. And next year no crucifixes, since they are uber offensive to all but Catholics. Have a nice bland day here in the Lego movie. Remember ... Everything is awesome comrades.

  3. Thank you for this post . I just bought a LG External DVD It came with Cyber pwr 2 go . It would not play on Lenovo Idea pad w/8.1 . Your recommended free VLC worked great .

  4. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  5. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

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