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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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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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