Attorneys in trouble for ads

September 5, 2008
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Two Indianapolis attorneys received public reprimands for the use of “Legal Advertisement” and other phrases on brochures they give to prospective clients. After reading the opinion handed down by the Indiana Supreme Court yesterday, I’m confused about how the process of submitting your ads to the Supreme Court Disciplinary Commission works.

Attorneys have to file their advertising materials with the commission before they can send them out. But no one at the commission reviews the submitted ads for violations of the Rules of Professional Conduct, probably because there are too many ads to keep up with.

My confusion comes from reading the opinion and finding out the two attorneys submitted one of their brochures to the commission for approval back in 1996. The commission sent a letter back saying they don’t advise attorneys on the propriety of their ads. Yet, the commission sometimes sends letters to lawyers letting them know the language of their submitted ads needs to be changed to comply with the professional rules.

These two attorneys didn’t get such a letter and then found themselves in front of the Disciplinary Commission years later.

I’m not excusing their misconduct – they had been practicing for 10 years by the time the brochures were created – but if the commission sometimes will warn attorneys about their ads, why didn’t the commission respond to the attorneys’ letter and let them know they should have used “Advertising Material” on the brochures instead?

Granted, I’m not an attorney, so I don’t know all the ins-and-outs of having a law practice and advertising, but I would like to think if an attorney wrote to the Disciplinary Commission and asked for approval of an advertisement, or even asked if certain language was permitted, that the commission could respond with an answer to the inquiry instead of sitting on it for eight years and then filing misconduct charges against the attorney for the advertisement. Because they sometimes inform attorneys with letters to revise the language of an ad, why not do that in the case of these attorneys?
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  • I think the rules need to provide for a safe harbor in attorney advertising materials, especially since we have to put them on file. The rules require a $50.00 filing fee so there is already a funding source to review the material. These attorneys complied with the filing requirements and even requested an opinion on their materials; what more could they do in their efforts to comply with the rule?
  • The inference is that the Commission will review something for someone they like, but can bring charges against someone they don\'t like. Sounds like favoritism to me. Whatever the policy, it should apply to all.

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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