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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. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  2. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

  3. I will agree with that as soon as law schools stop lying to prospective students about salaries and employment opportunities in the legal profession. There is no defense to the fraudulent numbers first year salaries they post to mislead people into going to law school.

  4. The sad thing is that no fish were thrown overboard The "greenhorn" who had never fished before those 5 days was interrogated for over 4 hours by 5 officers until his statement was illicited, "I don't want to go to prison....." The truth is that these fish were measured frozen off shore and thawed on shore. The FWC (state) officer did not know fish shrink, so the only reason that these fish could be bigger was a swap. There is no difference between a 19 1/2 fish or 19 3/4 fish, short fish is short fish, the ticket was written. In addition the FWC officer testified at trial, he does not measure fish in accordance with federal law. There was a document prepared by the FWC expert that said yes, fish shrink and if these had been measured correctly they averaged over 20 inches (offshore frozen). This was a smoke and mirror prosecution.

  5. I love this, Dave! Many congrats to you! We've come a long way from studying for the bar together! :)

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