ILNews

New advertising rules irk some lawyers

Back to TopCommentsE-mailPrintBookmark and Share

Editor's Note: This story has been corrected.

Bloomington attorney Ken Nunn says he hasn’t been hurt by new attorney advertising rules put in place at the start of the year, but he’s hearing more disturbing stories from people who are feeling the effects.

One man told Nunn recently that he’d been approached by an insurance company representative days after an accident inside a store, when he was still in the hospital with an injured back and hooked up to an IV. The offer: settle for $10,000.

Historically, Nunn said, plaintiff attorneys might have been able to contact that person immediately following an accident and be able to offer information about what legal options exist.

But not anymore. Since Jan. 1, plaintiff lawyers are not able to make that initial contact because of new attorney advertising regulations adopted by the Indiana Supreme Court. The new professional conduct rules put in place a 30-day cooling off period, meaning that these personal injury attorneys must wait at least a month to make any direct solicitation to people who have potential personal injury or wrongful death claims.

hausmann Hausmann

“I thought this would have a dramatic effect, but this hasn’t hurt my practice at all,” Nunn said. “But while I’m not unhappy because it hasn’t hurt me, I’m hearing more stories now than ever before and that’s concerning. People who are telling me they are being contacted sooner and the game has changed.”

The state’s highest court announced the rule changes at the Indiana State Bar Association’s annual meeting in October 2010. It was the first attorney advertising rule change of its kind in the state in two decades and the culmination of four years of work between the state bar association and court leaders.

They dealt with the 7-series of the Indiana Rules of Professional Conduct, and Rule 7(b)(3) specifically focuses on the 30-day period. While the ISBA’s Special Lawyer Advertising Committee didn’t include that 30-day provision in its proposal to the board of governors, a provision for a cooling-off period on arrests and criminal cases as well as the personal injury issues was ultimately included when the rule changes were adopted by the court.

Nothing prevents injured people from contacting attorneys directly during the 30-day period, and the attorneys are able to advertise on billboards, online, and through other marketing avenues as long as they comply with the rest of the professional conduct rules.

Disciplinary Commission Executive Secretary G. Michael Witte says it’s still too early to say what impact the rules are having on attorneys, and at this point his office has been mostly focused on education and awareness about the new rules. Most questions have been about what he perceives to be the “hot button” issue – law firm names and how revised Rule 7.5 applies to attorneys practicing together if they aren’t in actual partnerships.

Witte cited confidentiality rules in being able to say generally whether any complaints or investigations have been initiated about the 30-day provision, but said no public verified complaints have been filed with the Supreme Court.

Witte said the rule may be perceived to be one-sided, but it’s focused on lawyers who are contacting potential clients to represent them, not on those with other attorney-client relationships like an insurance company and its attorney who might be handling an accident or injury claim.

“That’s the distinction, and the commentary shows this is aimed at protecting people who are at points in their lives where they might need this kind of consumer protection,” he said, noting that defense attorneys should also be mindful of other conduct rules regulating their practices.

With the rules now in place in Indiana for three months, attorneys practicing here say they haven’t observed any direct impact on their business – but some describe what they see as disturbing trends that might warrant additional review.

kyrouac Kyrouac

“I’m a believer that what’s fair is fair, but this rule completely tips the scales away from justice and gives one side more of an advantage in influencing people’s lives,” said Wisconsin attorney Charles Hausmann, whose five-state law firm of Hausmann-McNally has three attorneys in Indianapolis and Merrillville offices. “I’m proud of what we do for people, and I think those of us who are proud are angry and disgusted by this kind of regulation.”

Before the rule change, Hausmann said his firm would take 70 to 80 percent of the cases that came in and passed the screening process. The number of calls coming into the office hasn’t changed much, but he said now the number of cases being accepted has gone down because of follow up and what’s happened in those initial 30 days in preserving claims and issues. Hausmann talked about an Indiana man who had recently had surgery and was on pain medication when an adjuster phoned and asked him about fault.

“He responded in a way that likely killed the case, and he later told me that he’d said that just to get them off the phone because he was in pain. But this, in my opinion, was a case where clearly no one was at fault, and because that person may not have had contact with an attorney initially, that outcome is different.”

When the rule was initially being crafted, Hausmann said he created what’s called the Indiana Citizens for Free Speech – an organization that he says now encompasses attorneys from 8 to 10 law firms statewide. Many say they aren’t willing to publicly speak on this issue because of fear of retaliation, according to Hausmann.

Since the rule was initially scrapped during the crafting stages before the special ISBA committee, Hausmann said he thought the plaintiff’s bar had been heard. But then it resurfaced. Hausmann argues the re-insertion of this provision after the March 2009 public comment period deprived the public and legal community of due process, and he wants the Supreme Court to re-examine and reverse itself.

A potential First Amendment lawsuit is being explored on the commercial free speech issues present because of this rule, Hausmann said, and that’s something he’s considering filing in one of Indiana’s federal courts.

“This rule hurts the very people they think they are helping,” he said. “I’m surprised at the Supreme Court’s rationale and lack of understanding of the true consequences of implementing this rule.”

Terre Haute defense attorney Scott Kyrouac, president of the Defense Trial Counsel of Indiana, said he’s heard some fellow lawyers concerned about the rule change and wondered how it came to be. Some thought the 30-day period created a disadvantage for small firm or solo practitioners, who tried to level the playing field with written material.

He doesn’t think this new rule is having much impact on how the insurance industry or its attorneys do business or how people go about consulting a lawyer. Most defense attorneys don’t regularly write to injured people within 30 days of an accident, and they are hired only after the threat of litigation is apparent, he said. But if that is happening, he thinks those lawyers should also wait to contact people for at least 30 days.

ted waggoner Waggoner

“Ultimately, a 30-day waiting period will have no effect on the defense bar,” he said. “I suspect the effect on the plaintiff’s bar will be minimal. Perhaps a few injured parties will chose an attorney before the 30-day waiting time expires, but I suspect those instances will be limited to the selection of an attorney based on a prior social or professional relationship.”

Rochester plaintiff attorney Ted Waggoner, managing partner at Peterson Waggoner & Perkins, doesn’t handle these types of cases or do direct solicitation, but he said he thinks the 30-day moratorium sends the wrong message to the public – that lawyers can’t be trusted, but insurance companies can.

“There’s some concern on my part about the court not having any control over insurance adjusters or not addressing insurance attorneys in the same way,” he said. “There’s no corresponding rule, and I do not think this rule is looking at the best interest of the people.”

Speculating on what might have helped make the case for this rule change, Waggoner suggested that two events may have contributed to the decision-making. One involved an Evansville airplane crash in February 1992 when two California lawyers sent written solicitations to families and victims soon after the accident with self-laudatory claims about their track records of getting big awards for disaster victims.

Waggoner also pointed to an incident in South Bend last year, when a prominent personal injury lawyer sent a promotional video to the family of a young girl who’d been killed and they received the video when returning home from the girl’s funeral.

“Those may have both left a bad taste in the mouth, and it’s understandable. But my concern generally is about silencing one side of the argument for a period of time,” he said, noting that he doesn’t think the court would be motivated to change this provision unless groups such as the Indiana Trial Lawyers Association pushed for it. “I don’t think a handful of attorneys from inside the state or those from outside Indiana would create much of a pressure point on the issue for the court to reconsider this. They took their time and probably had a lot of discussion on that, and ended up deciding what they thought was best.”•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

ADVERTISEMENT