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New advertising rule on law firm monikers sparks concern

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New attorney advertising rules adopted recently by the Indiana Supreme Court have some lawyers throughout the state worried that they’re being forced to change their law firm names from what’s historically been allowed.

Legal letterhead and law firm names may need to be shuffled if restrictive interpretations are correct about the new conduct code on attorney advertising. The verbiage changes have some wondering whether the Indiana Supreme Court is targeting some solo practitioners and smaller groups of associated attorneys throughout the state. Not everyone agrees that anything of significance has changed, and it could come down to how the state’s lawyer discipline agency decides to enforce the rules that it describes as more permissive than before.
 

witte-michael-mug Witte

“Our overall opinion is that there’s nothing here that really is a major, earth-shattering move,” said G. Michael Witte, executive secretary of the Indiana Disciplinary Commission. “One of those is the law firm and trade names aspect, and how it’s taken a prior rule addressed in the negative and turned it into a positive that gives attorneys more guidance. This is still restrictive, but it puts into a positive light that you’re permitted to use trade names as long as you meet certain conditions.”

The analysis of Indiana’s new advertising rules follows action from the state’s highest court on Oct. 14, which culminated a five-year revision process by approving changes to the Indiana Rules of Professional Conduct 7.1 to 7.5. A specialized Indiana State Bar Association committee proposed changes to the current rules that have been in place for more than 20 years, and after the House of Delegates approved the proposal in October 2006 the Rules of Practice and Procedure and Supreme Court spent the next four years reviewing and tweaking what might be changed. The final changes were announced and approved during the ISBA’s annual meeting last month, and they take effect Jan. 1, 2011.

Chief Justice Randall T. Shepard says the rule changes are aimed at bringing Indiana more in line with what most of the nation has already done in following model rules adopted a decade ago by the American Bar Association. He added that the changes will liberalize some of the areas where the state has been more conservative on attorney advertising.

The rule at issue

One of the revisions raising the most concern throughout the legal community is in Rule 7.5, dealing with law firm names. Indiana’s former disciplinary chief Don Lundberg, who spent 18 years reviewing these conduct matters before leaving the disciplinary commission for private practice at the start of 2010, describes that aspect of the changes as the most significant revision with practical implications for the practicing bar.

Specifically, 7.5(d) says, “Lawyers may state or imply that they practice in a partnership or other organization only when they in fact do so.” A comment to that rule explains that “lawyers sharing office space facilities, but who are not in fact associated with each other in a law firm, may not denominate themselves as, for example, ‘Smith & Jones,’ for that title suggests that they are practicing together in a firm.”

When the latest proposed rules were posted online last year, an additional sentence was tagged on to that comment: “However, if Smith & Jones indicate specifically the nature of their relationship, such a disclaimer may be sufficient to avoid a violation of the rule.”

That latter section was added by the ISBA advertising rules committee, but it’s not clear why that section was ultimately not adopted by the Supreme Court. Pressed on those details, public information officer Kathryn Dolan told Indiana Lawyer that the court declined to comment on the reasons or discuss how it might have evolved to what was recently adopted. Dolan said the court received and reviewed various proposals from many parties and wasn’t prepared to analyze one portion of the overall changes.

From the ISBA perspective, attorney advertising committee chair Karl Mulvaney in Indianapolis and Noblesville lawyer Jeff Nickloy who headed up the special subcommittee said they added the disclaimer-aspect of the comment into the rules prior to sending the proposal to the Supreme Court. They didn’t know why the court decided to leave it out, though. Nickloy hadn’t had a chance to review this change to the law firm name section to comment on the potential impact, and Mulvaney said he understood where the new rule could present problems. Another member of the ISBA committee, Indianapolis attorney Jon Pactor, said he’s also wondered since the rule revisions were released whether it would still be permissible for a firm to be called “X & Associates,” if there are no associates or only one associate; or to what extent it is permissible to be called a law group?

The disciplinary commission’s longtime staff attorney Chuck Kidd, who served on the 2006 ISBA advertising rule change committee and has dealt with the advertising disciplinary issue, said he’s pleased with what the court approved on Rule 7.5.

“That’s an important change because it allows lawyers to do things they’ve wanted to do before,” he said, noting that attorneys can now use their locations or other points of pride as part of their names. “It’s not a free hand to do what you want in a firm name, but this is a middle of the road rule that offers guidance.”

Though some attorneys might be worried about the use of the word “association” in their names, both Witte and Kidd said the rules are permissive and that they clearly allow for partnerships or other organizations to be mentioned as long as the attorney is not advertising something that’s false or misleading.

“By stating positive, the rules give more guidance,” Witte said. “This rule really comes back full circle, closing the circle and tying us into 7.1 about not being false or misleading about a lawyer or lawyer’s services. The way you advertise yourself in a firm or practice name has to be true.”

Indianapolis attorney and legal ethics expert William Hodes, who has taught lawyer ethics at Indiana University School of Law – Indianapolis, doesn’t see a problem with the rule.

“I think people are over-reading the rule and comment, and I see this as completely appropriate and not much of a change from the way it was,” he said. “As long as you’re making it clear that you’re not a partnership and are any other type of association or organization, then this should not be any great concern.”

Hodes says Rule 1.0 defines a law firm as a place where any lawyer or lawyers in a partnership, professional corporation, sole proprietorship, or another association is authorized to practice law. That rule combined with the new Rule 7.5 offers what Hodes considers a sort of “safe harbor” for attorneys who use disclaimers or specifically separate themselves.

“If you put those definitions together and blend them, then you have something that seems perfectly sensible to me,” he said, noting that some lawyers will likely have to change their advertisements if they aren’t already doing so. “The basic rule is the same and it’s absolutely routine. But you have to make it clear, and if you’re not, then the first thing you have to do as a lawyer is burn all of your stationary.”

Both Witte and Kidd emphasized that it will take some time for cases to be analyzed using these new rules, but in the meantime they plan to travel statewide and help attorneys recognize what the changes are and what they might mean come the start of 2011.

Lawyers remain worried

For practitioners such as Donald Doxsee in Fort Wayne, that could be a significant issue once the new rules take effect. His letterhead and advertising materials include two other names and the disclaimer that they’re “an association, not a partnership.” But the new rules would make that impermissible, according to his reading.

“This will affect all of us, particularly those who don’t say what we do and just use the title,” said the 47-year practicing attorney, who explains he started practicing when attorneys weren’t ethically able to put their names in telephone books. “I’m concerned and we’ll have to go back and look at this,” he said. “I am surprised they went that far and I wasn’t aware of it. If that’s a correct interpretation, everyone here would have to (change) their letterheads (and) just mention the one lawyer. Maybe we’ll have to seek an ethics opinion for some clarification.”

In Indianapolis, attorney Aaron Freeman with the association of Ladd Thomas Sallee Adams & Freeman said he and his colleagues have also been watching these rule revisions and are concerned about the changes.

He said the attorneys who practice in that office are separate and share office expenses, but they work to make it clear to the public and potential clients that they aren’t a partnership or corporation. On their wall plate inside the office and on every mailing they include the language about being an association.

“We’ve always tried to go above and beyond what’s required in anything we communicate, and we take the position of trying to be honest about who we are and not be ambiguous about the fact that we’re associated in this way,” he said. “We read that disclaimer provision about a year ago and thought we were fine, but with that part of the comment being gone, I’d presume that it might say what we’re doing now isn’t good enough. If that’s the case, I think there’s a lot of firms and attorneys who will have to change what they do. We’re in the dark like everyone else is right now.”

Solo practitioner Kenan L. Farrell in Indianapolis, who chairs the solo and small firm committee of the Indianapolis Bar Association, says the rule would have impacted him in the former office he worked where eight names were joined together as an “association of attorneys.” But he doesn’t have concerns about rules that require transparency.

“I do see how the new rule could present a problem for this type of designation,” he said. “Presumably, there have been complaints in this area. But if the rule results in greater transparency, I don’t think it’s a bad thing, even if it requires new signage.”•

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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