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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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