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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