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Updated rules to govern lawyer advertising

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Culminating a process that began five years ago, the Indiana Supreme Court has approved the first attorney advertising rule change of its kind in about a generation.

While the 20-page order amending the Indiana Rules of Professional Conduct entails several revisions to the Rule 7 series, one of the most significant aspects of the new rules is a provision that prevents attorneys from “ambulance chasing,” or directly contacting potential clients immediately following an incident that might lead to a personal injury or wrongful death action.

The rules 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, and Chief Justice Randall T. Shepard says the revisions will liberalize some of the areas where the state has been more conservative on attorney advertising.

Chief Justice Shepard and three of his colleagues announced and signed the changes at the Indiana State Bar Association annual president’s dinner Thursday night. The rule changes take effect Jan. 1, 2011.

“Taken as a whole, this is a much more modern and flexible approach to the questions our profession faces, and those issues lawyers and their clients face,” the chief justice said, moments before signing the new rules alongside outgoing ISBA president Rod Morgan of Indianapolis and incoming president Jeff Lind of Terre Haute.

This was the final Indiana rule change this fall and the court held off on signing this batch of revisions until the ISBA meeting, because that’s where the process had started back in 2005, the chief justice said.

That year, then-ISBA president Clyde Compton from Merrillville announced the review would begin on the state’s advertising rules and in early 2006 a special committee began meeting to explore potential revisions. The Board of Delegates approved proposed rules in October 2006 and forwarded those to the Indiana Supreme Court’s Committee on Rules of Practice and Procedure, which has reviewed and tweaked the proposal during the past four years.

Indiana has been on the conservative side of attorney advertising rules nationally, and the state hadn’t adopted changes as many other jurisdictions had after the American Bar Association offered model rules in 2000, the chief justice said.

Generally, the new rules hit on a common theme that lawyer advertising is permissible as long as it’s not false or misleading, but the court left unresolved pressing issues such as whether Super Lawyer designations should be allowed and how the state might create a review system for pre-approval. Those issues weren’t included in the proposal sent from the ISBA to the Supreme Court back in 2006.

Modernizing Section 7 of the Indiana Rules of Professional Conduct, the court has revamped the rules to embrace e-mail and technological advances in recent decades. Specifically, the changes encompass Rules 7.1, 7.2, 7.3, 7.4, and 7.5. They provide commentary for each revision to help attorneys understand the rationale and what the rules mean, and the changes include more focus on law firm trade names and the creation of a 30-day cooling off period before attorneys can directly solicit to potential clients after an accident or disaster.

On the cooling off period provision in 7.3(b)(3), the order states, “This restriction is reasonably required by the sensitized state of the potential clients, who may be either injured or grieving over the loss of a family member, and the abuses that experience has shown exist in this type of solicitation.”

The chief justice also highlighted how the changes liberalize Rule 7.5, which deals with law firm names and letterheads that have been the subject of litigation in recent years.

In a report to the House of Delegates today, the Lawyer Advertising Rules Committee pointed out that aside from these revisions that the court has been considering, future issues that warrant review might include: material submitted to blogs and social media and how those are subject to attorney advertising rules, and the question of when information submitted by or on behalf of lawyers to the Internet, blogs, and social media might be considered “public communication” within the meaning of the advertising rules. Those issues tie into what the ISBA Legal Ethics Committee is exploring, as it’s formed a subcommittee during the past year to address ethical issues regarding the use of social media.

A copy of the newly-signed rules can be found online here.
 

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  2. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  3. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  4. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  5. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

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