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IBA: Lawyer Advertising: The Truth May Not Set You Free

July 6, 2011
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By James J. Bell and Meghan J. Pitcher, Bingham McHale LLP
 

Bell James Bell

Indiana’s new advertising rules apply to more than just billboards and Yellow Page ads. Rule 7.2(a) of the Rules of Professional Conduct defines “advertising” as “any manner of communication partly or entirely intended or expected to promote the purchase or use of professional services.” That means that the advertising rules may cover communications on your website, your blog and even on your Facebook page.

So let’s say you have just put the polishing touches on your website or bragged about yourself on Facebook. You examine your statement to see if you can verify every fact in the communication. You can. Each statement is, in fact, true. So there is no way this communication has violated the Rules of Professional Conduct, right? The truth will set you free, correct? Maybe. Maybe not.

Rule 7.1 states “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.” That is simple enough. However, the Rule also notes that a statement may be misleading if it “omits a fact” which makes it a material misrepresentation. For example, stating that you “have never lost a jury trial” may be a true, but misleading statement if in fact, you have never tried a jury trial.

Finally, Comment 2 to Rule 7.1 warns that “Truthful statements that are misleading are also prohibited by this Rule.” Several Indiana cases have demonstrated that truthful statements may become misleading if presented in a misleading context. For example, in one case, an attorney stated to potential clients that he was “a Lawyer with 20 years of United States Marine Corps Experience.” The attorney was a lawyer and had 20 years experience with the Marines, but was not a lawyer in the Marine Corps. In re G.H. 740 N.E.2d 846, 848 (Ind. 2000). Therefore, the Indiana Supreme Court concluded that the statements “standing alone, were correct but [became] deceptive when considered in the context in which they were offered.” Id.

Similarly, the Court looks at the overall impact of the advertisement and the inferences that may be drawn. A law firm’s billboard advertisement contained an image of individuals with the slogan “Expect more from a [name of law firm] attorney.” All of the individuals in the image were lawyers at the firm, except one. The non-lawyer was the only African-American in the group, and the Court found that the advertisement falsely implied racial diversity amongst the attorneys in the firm. The Court found that the image paired with the slogan was misleading because not everyone in the image was an attorney – from whom you could “expect more.” In re G.G. 777 N.E.2d 1097, 1097-98 (Ind. 2002).

Stating a fact without detail and without clarifying the meaning can also be misleading. For example, an attorney placed an advertisement in a phone book that included a list of his areas of practice. Included in that list was the phrase “Prosecutor Johnson County.” The Court found the advertisement misleading, because the attorney was not the elected prosecutor, but a deputy prosecutor. In re D.C. 738 N.E.2d 1035, 1036-37 (Ind. 2000). The omission of the fact that he was a deputy prosecutor made this truthful statement misleading.

There are several lessons to be learned from the above cases: 1. Make sure your ad contains the truth, the whole truth and nothing but the truth; 2. Examine your truthful advertising statements in all contexts to make certain the statements do not mislead; and 3. Finally, be as detailed as possible in your statements to ensure you do not mislead the reader.•

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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

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