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. Hello everyone am precious from the united state of America am here to testify in the name of this great man who has brought back happiness into my family after my lover Chris left me for 3years for another woman,i really loved Chris because he was my first love i tried everything within my power to get Chris back to my life but people i met just kept on scamming me and lying to me,Then normally on Saturdays i do go out to make my hair and get some stuff,Then i had people discussing at the saloon if they do listen to there radio well,That there is a program (how i got back my ex)And started talking much about Dr EDDY how this man has helped lots of people in bringing back there lover,So immediately i went close to those ladies i met at the saloon and i explained things to them they said i should try and contact Dr EDDY that he has been the talk of the town and people are really contacting him for help immediately we searched on the internet and read great things about Dr EDDY i now got all Dr EDDY contact instantly at the saloon i gave Dr EDDY a call and i shared my problem with him he just told me not to worry that i should just be happy,He just told me to send him some few details which i did,And then he got back to me that everything would be okay within 36hours i was so happy then Dr EDDY did his work and he did not fail me,My lover Chris came to me in tears and apologized to me for leaving me in deep pain for good 3years,So he decided to prove that he will never leave me for any reason he made me had access to his account and made me his next of kin on all his will,Now the most perfect thing is that he can't spend a minute without seeing me or calling me,Am so grateful to Dr EDDY for bringing back the happiness which i lack for years,Please contact Dr EDDY for help he is a trustworthy man in email is dreddyspiritualtemple@gmail.com or you can call him or whatsapp him with this number...+23408160830324 (1)If you want your ex back. (2) if you always have bad dreams. (3)You want to be promoted in your office. (4)You want women/men to run after you. (5)If you want a child. (6)[You want to be rich. (7)You want to tie your husband/wife to be yours forever. (8)If you need financial assistance. (9)If you want to stop your Divorce. 10)Help bringing people out of prison. (11)Marriage Spells (12)Miracle Spells (13)Beauty Spells (14)PROPHECY CHARM (15)Attraction Spells (16)Evil Eye Spells. (17)Kissing Spell (18)Remove Sickness Spells. (19)ELECTION WINNING SPELLS. (20)SUCCESS IN EXAMS SPELLS. (21) Charm to get who to love you. CONTACT:dreddyspiritualtemple@gmail.com

  2. The appellate court just said doctors can be sued for reporting child abuse. The most dangerous form of child abuse with the highest mortality rate of any form of child abuse (between 6% and 9% according to the below listed studies). Now doctors will be far less likely to report this form of dangerous child abuse in Indiana. If you want to know what this is, google the names Lacey Spears, Julie Conley (and look at what happened when uninformed judges returned that child against medical advice), Hope Ybarra, and Dixie Blanchard. Here is some really good reporting on what this allegation was: http://media.star-telegram.com/Munchausenmoms/ Here are the two research papers: http://www.sciencedirect.com/science/article/pii/0145213487900810 http://www.sciencedirect.com/science/article/pii/S0145213403000309 25% of sibling are dead in that second study. 25%!!! Unbelievable ruling. Chilling. Wrong.

  3. MELISA EVA VALUE INVESTMENT Greetings to you from Melisa Eva Value Investment. We offer Business and Personal loans, it is quick and easy and hence can be availed without any hassle. We do not ask for any collateral or guarantors while approving these loans and hence these loans require minimum documentation. We offer great and competitive interest rates of 2% which do not weigh you down too much. These loans have a comfortable pay-back period. Apply today by contacting us on E-mail: melisaeva9@gmail.com WE DO NOT ASK FOR AN UPFRONT FEE. BEWARE OF SCAMMERS AND ONLINE FRAUD.

  4. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  5. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

ADVERTISEMENT