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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. A traditional parade of attorneys? Really Evansville? Y'all need to get out more. When is the traditional parade of notaries? Nurses? Sanitation workers? Pole dancers? I gotta wonder, do throngs of admiring citizens gather to laud these marching servants of the constitution? "Show us your billing records!!!" Hoping some video gets posted. Ours is not a narcissistic profession by any chance, is it? Nah .....

  2. My previous comment not an aside at court. I agree with smith. Good call. Just thought posting here a bit on the if it bleeds it leads side. Most attorneys need to think of last lines of story above.

  3. Hello everyone I'm Gina and I'm here for the exact same thing you are. I have the wonderful joy of waking up every morning to my heart being pulled out and sheer terror of what DCS is going to Throw at me and my family today.Let me start from the !bebeginning.My daughter lost all rights to her 3beautiful children due to Severe mental issues she no longer lives in our state and has cut all ties.DCS led her to belive that once she done signed over her right the babies would be with their family. We have faught screamed begged and anything else we could possibly due I hired a lawyer five grand down the drain.You know all I want is my babies home.I've done everything they have even asked me to do.Now their saying I can't see my grandchildren cause I'M on a prescription for paipain.I have a very rare blood disease it causes cellulitis a form of blood poisoning to stay dormant in my tissues and nervous system it also causes a ,blood clotting disorder.even with the two blood thinners I'm on I still Continue to develop them them also.DCS knows about my illness and still they refuse to let me see my grandchildren. I Love and miss them so much Please can anyone help Us my grandchildren and I they should be worrying about what toy there going to play with but instead there worrying about if there ever coming home again.THANK YOU DCS FOR ALL YOU'VE DONE. ( And if anyone at all has any ideals or knows who can help. Please contact (765)960~5096.only serious callers

  4. He must be a Rethuglican, for if from the other side of the aisle such acts would be merely personal and thus not something that attaches to his professional life. AND ... gotta love this ... oh, and on top of talking dirty on the phone, he also, as an aside, guess we should mention, might be important, not sure, but .... "In addition to these allegations, Keaton was accused of failing to file an appeal after he collected advance payment from a client seeking to challenge a ruling that the client repay benefits because of unreported income." rimshot

  5. I am not a fan of some of the 8.4 discipline we have seen for private conduct-- but this was so egregious and abusive and had so many points of bad conduct relates to the law and the lawyer's status as a lawyer that it is clearly a proper and just disbarment. A truly despicable account of bad acts showing unfit character to practice law. I applaud the outcome.

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