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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. 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.

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