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States mull attorneys' designation

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For years, Indianapolis attorney Scott Montross has been a Super Lawyer. He's been on the list and for the most part has been one of the top designees in the state time and time again.

While he doesn't have a direct issue with the validity or credibility of being named a Super Lawyer, the veteran attorney does raise concerns about how the legal profession advertises that moniker and whether it crosses any lines.

"My problem isn't with the designation specifically, as it is with the lawyers attempting to utilize that designation as some sort of endorsement of their credentials," said Montross of Montross Miller Muller Mendelson & Kennedy who's been practicing since 1971. "I've eased my way into accepting that it can be a professional and tasteful advertising tool, but my real problem lies with the whole advertising approach that can be almost misrepresenting credentials to the public."

That mindset is what's brought the Super Lawyer designation into the national spotlight in recent years, as courts and bar associations throughout the country have explored whether this newest avenue of attorney marketing raises ethical issues that must be dealt with. Some in the legal community speculate that advertising dollars or big firm vote repetition influence those rankings, even though Super Lawyers denies those claims and says the process is credible and not connected to the advertising arm.

Started by Minnesota-based magazine Law & Politics, the Super Lawyers list was first published in 1991 but gained more national recognition and prestige after expanding in 2003. Owners say it's published in most states and reaches about 11 million attorneys each year. In February, Thomson Reuters bought the publication and rating avenue and added it to its Business of Law group that offers multiple lawyer marketing and client development tools.

Hundreds of Hoosier lawyers have been tagged as Super Lawyers since it started here in 2004. The 2010 list includes 724 lawyers, a slight increase from the 713 named last year but equivalent to the number named in 2008 and 2007. The list includes about 5 percent of the Indiana bar and is published in the March issue of Indianapolis Monthly that goes to 200,000 readers, as well as Indiana Super Lawyers that's mailed to more than 18,000 state attorneys, chief corporate counsel for some of the country's largest companies, and all American Bar Association-approved law school libraries.

Designated attorneys are selected based on 13,000 ballots sent to attorneys statewide last year, with each person asked to vote for the best lawyers they had personally observed in action. Attorneys are scored based on the number of votes received, and then a research panel considers those who've practiced for at least five years and ranked highest on criteria such as verdicts and settlements, honors and awards, special licenses, and pro bono and community service history.

The designation's validity has become a more common issue throughout the country as courts and bar associations have explored whether the use in marketing should be banned or restricted. Many states have allowed attorneys to use the designations specifically, while other jurisdictions such as Indiana haven't directly addressed the issue. But last year, a years-long battle in New Jersey came to an end and that's expected to offer some guidance for others who are examining the same issues.

In November, the New Jersey Supreme Court eased the restrictions on lawyers being able to mention their inclusion in Super Lawyers, Best Lawyers in America, or Martindale-Hubbell AV rankings. That revision to Rule of Professional Conduct 7.1(a)(3) requires lawyers to include in ads the name of the rating service and a disclaimer saying, "No aspect of this advertisement has been approved by the Supreme Court." State justices also added a comment advising attorneys to read carefully before touting their selections, in order to make sure the ads aren't misleading. It says the conferring service has to have made an inquiry into the attorney's fitness, the honor can't be given for a price, and that the ads must describe the methodology, or at least tell the reader where the description can be found.

Super Lawyers mostly praised the ruling that put New Jersey in line with many other states, and others are expected to follow suit - including Indiana.

Hoosier homefront

The Indiana State Bar Association's legal ethics committee has been discussing and studying this issue for years, according to past and present chairs and committee members.

"A couple of issues that seem to divide the bar on this topic is that the designation is misleading in that it is more of a 'social' type of designation rather than a true 'professional' designation such as a Martindale Hubbell rating," said Westfield attorney John Conlon, who led the ethics committee years ago and first started investigating the topic after a former bar association president asked about it. "Some also feel that attorneys from the bigger, urban firms tend to stuff the ballot box and that it is very hard for a lawyer in a smaller firm to get to be a Super Lawyer. These are all issues that have to be kept in mind, but might not necessarily fall into something rules can address."

Indiana's current professional conduct rules offer only generalities about attorney advertising and little guidance for lawyers about Super Lawyer designations for marketing. Specifically, the rules prohibit "self-laudatory" advertising, and anything that contains and expresses or implies prediction of future success.

But the Indiana Supreme Court is considering a proposed rule change that would more specifically address the issue. Public comment was open until March 1 on a proposed change to Rule 7.2, which a comment notes applies more specifically to the public communications of lawyers rather than private communications made or supported by attorneys. The method of communication is not as important as the size and nature of the audience that could receive the communication, according to the comment.

Attorney and Bloomington law professor Seth Lahn, a member of the ISBA's legal ethics committee studying this issue, said he isn't sure if the rule change would apply to specific practices such as Super Lawyer advertising.

"My interpretation is that it's designed to liberalize or expand the permissible field, to make clearer and modernize some of the rules about attorney advertising," he said. "The touchstone is ensuring that the public isn't misled, not on particular practices."

Lahn said a testimonial or endorsement could be interpreted to apply to Super Lawyers, but it's also possible to interpret the rule so that a third-party claim is permissible if the lawyer is simply restating a factual claim that's verifiable. The issue raises interesting questions, but he isn't sure if there's anything to indicate whether this is a potential problem for Indiana. Lahn said in his 12 years on the ethics committee, he's never been asked by any attorney about their proposed Super Lawyer or similar designation being an ethical issue.

Still, he recognizes that the lawyer advertising area is constantly changing and anything's possible.

This is reflective of the changing of the global legal market, and the pace of change in the legal economy and how lawyers market themselves," he said. "There are a lot of different views on how this is problematic, but there is no consensus right now short of that we aren't categorically able to say it's off limits."

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  1. California Sex Offender Management Board (CASOMB) End of Year Report 2014. (page 13) Under the current system many local registering agencies are challenged just keeping up with registration paperwork. It takes an hour or more to process each registrant, the majority of whom are low risk offenders. As a result law enforcement cannot monitor higher risk offenders more intensively in the community due to the sheer numbers on the registry. Some of the consequences of lengthy and unnecessary registration requirements actually destabilize the life’s of registrants and those -such as families- whose lives are often substantially impacted. Such consequences are thought to raise levels of known risk factors while providing no discernible benefit in terms of community safety. The full report is available online at. http://www.casomb.org/index.cfm?pid=231 National Institute of Justice (NIJ) US Department of Justice Office of Justice Programs United States of America. The overall conclusion is that Megan’s law has had no demonstrated effect on sexual offenses in New Jersey, calling into question the justification for start-up and operational costs. Megan’s Law has had no effect on time to first rearrest for known sex offenders and has not reduced sexual reoffending. Neither has it had an impact on the type of sexual reoffense or first-time sexual offense. The study also found that the law had not reduced the number of victims of sexual offenses. The full report is available online at. https://www.ncjrs.gov/app/publications/abstract.aspx? ID=247350 The University of Chicago Press for The Booth School of Business of the University of Chicago and The University of Chicago Law School Article DOI: 10.1086/658483 Conclusion. The data in these three data sets do not strongly support the effectiveness of sex offender registries. The national panel data do not show a significant decrease in the rate of rape or the arrest rate for sexual abuse after implementation of a registry via the Internet. The BJS data that tracked individual sex offenders after their release in 1994 did not show that registration had a significantly negative effect on recidivism. And the D.C. crime data do not show that knowing the location of sex offenders by census block can help protect the locations of sexual abuse. This pattern of noneffectiveness across the data sets does not support the conclusion that sex offender registries are successful in meeting their objectives of increasing public safety and lowering recidivism rates. The full report is available online at. http://www.jstor.org/stable/full/10.1086/658483 These are not isolated conclusions but are the same outcomes in the majority of conclusions and reports on this subject from multiple government agencies and throughout the academic community. People, including the media and other organizations should not rely on and reiterate the statements and opinions of the legislators or other people as to the need for these laws because of the high recidivism rates and the high risk offenders pose to the public which simply is not true and is pure hyperbole and fiction. They should rely on facts and data collected and submitted in reports from the leading authorities and credible experts in the fields such as the following. California Sex Offender Management Board (CASOMB) Sex offender recidivism rate for a new sex offense is 0.8% (page 30) The full report is available online at http://www.cdcr.ca.gov/Adult_Research_Branch/Research_Documents/2014_Outcome_Evaluation_Report_7-6-2015.pdf California Sex Offender Management Board (CASOMB) (page 38) Sex offender recidivism rate for a new sex offense is 1.8% The full report is available online at. http://www.google.com/url?sa= t&source=web&cd=1&ved= 0CCEQFjAA&url=http%3A%2F% 2Fwww.cdcr.ca.gov%2FAdult_ Research_Branch%2FResearch_ documents%2FOutcome_ evaluation_Report_2013.pdf&ei= C9dSVePNF8HfoATX-IBo&usg=AFQjCNE9I6ueHz-o2mZUnuxLPTyiRdjDsQ Bureau of Justice Statistics 5 PERCENT OF SEX OFFENDERS REARRESTED FOR ANOTHER SEX CRIME WITHIN 3 YEARS OF PRISON RELEASE WASHINGTON, D.C. Within 3 years following their 1994 state prison release, 5.3 percent of sex offenders (men who had committed rape or sexual assault) were rearrested for another sex crime, the Justice Department’s Bureau of Justice Statistics (BJS) announced today. The full report is available online at. http://www.bjs.gov/content/pub/press/rsorp94pr.cfm Document title; A Model of Static and Dynamic Sex Offender Risk Assessment Author: Robert J. McGrath, Michael P. Lasher, Georgia F. Cumming Document No.: 236217 Date Received: October 2011 Award Number: 2008-DD-BX-0013 Findings: Study of 759 adult male offenders under community supervision Re-arrest rate: 4.6% after 3-year follow-up The sexual re-offense rates for the 746 released in 2005 are much lower than what many in the public have been led to expect or believe. These low re-offense rates appear to contradict a conventional wisdom that sex offenders have very high sexual re-offense rates. The full report is available online at. https://www.ncjrs.gov/pdffiles1/nij/grants/236217.pdf Document Title: SEX OFFENDER SENTENCING IN WASHINGTON STATE: RECIDIVISM RATES BY: Washington State Institute For Public Policy. A study of 4,091 sex offenders either released from prison or community supervision form 1994 to 1998 and examined for 5 years Findings: Sex Crime Recidivism Rate: 2.7% Link to Report: http://www.oncefallen.com/files/Washington_SO_Recid_2005.pdf Document Title: Indiana’s Recidivism Rates Decline for Third Consecutive Year BY: Indiana Department of Correction 2009. The recidivism rate for sex offenders returning on a new sex offense was 1.05%, one of the lowest in the nation. In a time when sex offenders continue to face additional post-release requirements that often result in their return to prison for violating technical rules such as registration and residency restrictions, the instances of sex offenders returning to prison due to the commitment of a new sex crime is extremely low. Findings: sex offenders returning on a new sex offense was 1.05% Link to Report: http://www.in.gov/idoc/files/RecidivismRelease.pdf Once again, These are not isolated conclusions but are the same outcomes in the majority of reports on this subject from multiple government agencies and throughout the academic community. No one can doubt that child sexual abuse is traumatic and devastating. The question is not whether the state has an interest in preventing such harm, but whether current laws are effective in doing so. Megan’s law is a failure and is destroying families and their children’s lives and is costing tax payers millions upon millions of dollars. The following is just one example of the estimated cost just to implement SORNA which many states refused to do. From Justice Policy Institute. Estimated cost to implement SORNA Here are some of the estimates made in 2009 expressed in 2014 current dollars: California, $66M; Florida, $34M; Illinois, $24M; New York, $35M; Pennsylvania, $22M; Texas, $44M. In 2014 dollars, Virginia’s estimate for implementation was $14M, and the annual operating cost after that would be $10M. For the US, the total is $547M. That’s over half a billion dollars – every year – for something that doesn’t work. http://www.justicepolicy.org/images/upload/08-08_FAC_SORNACosts_JJ.pdf. Attempting to use under-reporting to justify the existence of the registry is another myth, or a lie. This is another form of misinformation perpetrated by those who either have a fiduciary interest in continuing the unconstitutional treatment of a disfavored group or are seeking to justify their need for punishment for people who have already paid for their crime by loss of their freedom through incarceration and are now attempting to reenter society as honest citizens. When this information is placed into the public’s attention by naive media then you have to wonder if the media also falls into one of these two groups that are not truly interested in reporting the truth. Both of these groups of people that have that type of mentality can be classified as vigilantes, bullies, or sociopaths, and are responsible for the destruction of our constitutional values and the erosion of personal freedoms in this country. I think the media or other organizations need to do a in depth investigation into the false assumptions and false data that has been used to further these laws and to research all the collateral damages being caused by these laws and the unconstitutional injustices that are occurring across the country. They should include these injustices in their report so the public can be better informed on what is truly happening in this country on this subject. Thank you for your time.

  2. Freedom as granted in the Constitution cannot be summarily disallowed without Due Process. Unable to to to the gym, church, bowling alley? What is this 1984 level nonsense? Congrats to Brian for having the courage to say that this was enough! and Congrats to the ACLU on the win!

  3. America's hyper-phobia about convicted sex offenders must end! Politicians must stop pandering to knee-jerk public hysteria. And the public needs to learn the facts. Research by the California Sex Offender Management Board as shown a recidivism rate for convicted sex offenders of less than 1%. Less than 1%! Furthermore, research shows that by year 17 after their conviction, a convicted sex offender is no more likely to commit a new sex offense than any other member of the public. Put away your torches and pitchforks. Get the facts. Stop hysteria.

  4. He was convicted 23 years ago. How old was he then? He probably was a juvenile. People do stupid things, especially before their brain is fully developed. Why are we continuing to punish him in 2016? If he hasn't re-offended by now, it's very, very unlikely he ever will. He paid for his mistake sufficiently. Let him live his life in peace.

  5. This year, Notre Dame actually enrolled an equal amount of male and female students.

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