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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. "...not those committed in the heat of an argument." If I ever see a man physically abusing a woman or a child and I'm close enough to intercede I will not ask him why he is abusing her/him. I will give him a split second to cease his attack and put his hands in the air while I call the police. If he continues, I will still call the police but to report, "Man down with a gunshot wound,"instead.

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  3. So this firebrand GOP Gov was set free by a "unanimous Supreme Court" , a court which is divided, even bitterly, on every culture war issue. WHAT A RESOUNDING SLAP in the Virginia Court's face! How bad must it have been. And all the journalists, lap dogs of the status quo they are, can do is howl that others cannot be railroaded like McDonald now??? Cannot reflect upon the ruining of Winston and Julia's life and love? (Oh I forget, the fiction at this Ministry of Truth is that courts can never err, and when they do, and do greatly, as here, why then it must be ignored, since it does not compute.)

  4. My daughter is a addict and my grandson was taken by DCS and while in hospital for overdose my daughter was told to sign papers from DCS giving up her parental rights of my grandson to the biological father's mom and step-dad. These people are not the best to care for him and I was never called or even given the chance to take him, but my daughter had given me guardianship but we never went to court to finalize the papers. Please I have lost my daughter and I dont want to lose my grandson as well. I hope and look forward to speaking with you God Bless and Thank You for all of your help

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