ILNews

Lawyers question enforcement of advertising rules

Back to TopCommentsE-mailPrintBookmark and Share

One of Indiana’s most familiar legal names – a frequent flier on buses, billboards and TV commercials – says enforcement of disciplinary rules governing attorney advertising is a mess and needs an overhaul.

“It’s enforcement by ambush,” said longtime personal-injury attorney Ken Nunn of Bloomington-based Ken Nunn Law Office. “I’m terrified I’m going to accidentally mess up. This shouldn’t be on my worry plate.”

Nunn and others say Indiana’s attorney advertising regulations are unclear, unevenly enforced and offer little practical guidance to avoid running afoul of the rules. A technical or even an unknowing violation can result in a costly and time-consuming disciplinary case.

“The whole process of helping lawyers, that’s gotten lost in the shuffle,” Nunn said. “Other states are helping their lawyers.”

advertising-caress-15col.jpg Caress Law Group advertises on an Indianapolis billboard. (IL Photo/Eric Learned)

But the Indiana State Bar Association is taking tentative steps in that direction and might be looking to the Bluegrass State for guidance. The Kentucky State Bar has developed a pre-approval system in which its Attorneys’ Advertising Commission reviews ads in advance to ensure they comply with state Supreme Court rules. If an ad contains only information specifically permitted under state rules – things such as name and address, practice areas, education and the like – the review is free. A fee of $75 to $175 applies for other ads.

Nunn said he thinks most attorneys who advertise would gladly pay a fee for advance approval that also buys peace of mind. “Charge me,” he said. “I’ll sleep at night.”

Calls for changing the state’s attorney advertising rules enforcement increased after the recent Supreme Court disciplinary action In Re: Anonymous, in which Crown Point attorney Tim Kelly was issued a private reprimand for testimonials appearing on the Law Tigers website and for failing to include an address on a communication. Kelly was affiliated with Law Tigers but had no control of content that appeared on the site.

keller A Keller & Keller billboard in Indianapolis. (Photo courtesy Lamar Advertising Co.)

Ronald Layer, a partner in the Dyer law firm Layer Tanzillo Stassin & Babcock P.C., chairs the Attorney Advertising Committee of the Indiana State Bar Association. Layer said his committee and the bar’s Ethics Committee recently formed a subcommittee to explore changing the regulatory system.

“Our hope is to either get some sort of pre-approval or the next-best thing,” Layer said. That might be an advisory opinion that would assure an attorney who has sought pre-approval that “they’re not going to get whacked” over the content of an ad.

“In the meantime, we’re trying to disseminate as much information as we can so attorneys can at least get some help, albeit at this point kind of unofficial,” he said.

Layer said he was sympathetic to Kelly’s situation. “This is someone who tried to get information and tried to do what was right. Maybe it was a misstep, but was it an intentional breach? One would argue absolutely not.

 

advertising-wamsley-15col.jpg Vaughn Wamsley advertises with a billboard near Interstate 465. (IL Photo/Eric Learned)

“The point is, if we can get these committees going in the direction we’d like them to go, the Law Tigers thing wouldn’t have happened,” Layer said.

Certain regulations on attorney advertising have been struck down on First Amendment grounds in Florida, Louisiana and New York, among others. The very definition of advertising varies from state to state, as do the rules, and some critics say rules haven’t kept pace with an age where a website might be viewed as a law firm’s address.

Nunn’s firm advertises heavily, spending about $2.5 million annually. He said the firm typically is either No. 1 or No. 2 in the state, neck-and-neck with Keller & Keller P.C. of Indianapolis.

Carmel attorneys at Hollingsworth & Zivitz pay to build their brand, but partner Kena Hollingsworth estimated less than 5 percent of firm revenue goes toward advertising.

The firm’s lawyers and staff brainstorm to come up with sometimes-cheeky and attention-grabbing ads like the IndyGo full-bus wrap that carries the firm’s 317-DIVORCE phone number and the slogan “Hire us before your spouse does.”

“When we started the firm almost 10 years ago now, we were young girls just out of law school, so we knew we had to do something to set ourselves apart a little bit,” Hollingsworth said. “We don’t take ourselves too seriously, but we are serious lawyers.”

Advertising-BlackburnGreen-15col.jpg A Blackburn & Green billboard. (IL Photo/Eric Learned)

But she acknowledged compliance with advertising rules is always a concern in those brainstorming sessions, and she’d favor a pre-approval system. “I think it would be great,” she said.

“We’re always very mindful of what the rules are,” Hollingsworth said. “First and foremost, we would never misrepresent ourselves or do anything unethical.” The firm’s business is about 90 percent family law, she said, and its ads aim to present an image that clients feel they can relate to during an emotional time.

“That’s the overwhelming feedback I’ve received,” she said of the firm’s ads. “At the end of the day, that’s how we get clients in the door.”

Terre Haute personal-injury attorney James O. McDonald acknowledges that it’s sort of an advertisement when his firm’s website contains the message, “Non Advertising Trial Lawyers.” But it also hammers home a point he thinks resonates with potential clients: “I choose not to march in that parade.”

ken-nunn3-15col.jpg Ken Nunn advertises on an IndyGo bus. (IL Photo/Submitted photo)

“I think when clients come to an attorney through advertising, they’re less apt to have confidence in the lawyer’s advice when it comes to personal-injury work,” McDonald said, averring that firms which advertise heavily have a “factory” reputation and may settle cases for less than they’re worth. He believes advertising can backfire, especially direct solicitations to people injured in accidents. He said he’s had clients who “resent it very much.”

“To me, the worst thing (lawyer ads) do is give the potential jury pool the impression that people are trying to get something for nothing.”

Hall Render Killian Heath & Lyman P.C. partner John C. Render said he’s concerned that clients who choose an attorney on the basis of an ad might not be making the best choice. Render said his firm limits advertising to such communications as sending informational newsletters to existing clients.

“What it may come down to is the public chooses a lawyer based on who has the most resources to advertise,” he said. “There’s something intuitively wrong with that in my mind, and I don’t think it serves the public very well.

hollingsworth-zivitz-bus-15col.jpg Hollingsworth & Zivitz P.C.'s advertisment on an IndyGo bus. (IL Photo/Submitted photo)

“If I can advertise or want to with a TV ad, am I going to get more calls, more clients, etc.? I might … because advertising works,” Render said. “I’m just not sure it has the same value in choosing professionals.”

Nunn acknowledges that being a heavy-advertising attorney carries a stigma, but he rejects the “settlement factory” criticism. He’s heard it, “and yet, we lead the state of Indiana in terms of doing the most jury trials for injured clients,” he said.

He also doesn’t accept claims that the public can’t be trusted to choose or not choose a lawyer based on advertising. “We can trust them as jurors,” Nunn said, “but somehow they’re too dumb to understand what an advertisement is.”•

ADVERTISEMENT

  • Prior Restraint
    I don't have any problem with the bar association reviewing ads before publication and issuing an advisory opinion, but if this creates a defacto mechanism for prior restraint, I think that's handing over First Amendment rights that we should be fighting to preserve.

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. Call it unauthorized law if you must, a regulatory wrong, but it was fraud and theft well beyond that, a seeming crime! "In three specific cases, the hearing officer found that Westerfield did little to no work for her clients but only issued a partial refund or no refund at all." That is theft by deception, folks. "In its decision to suspend Westerfield, the Supreme Court noted that she already had a long disciplinary history dating back to 1996 and had previously been suspended in 2004 and indefinitely suspended in 2005. She was reinstated in 2009 after finally giving the commission a response to the grievance for which she was suspended in 2004." WOW -- was the Indiana Supreme Court complicit in her fraud? Talk about being on notice of a real bad actor .... "Further, the justices noted that during her testimony, Westerfield was “disingenuous and evasive” about her relationship with Tope and attempted to distance herself from him. They also wrote that other aggravating factors existed in Westerfield’s case, such as her lack of remorse." WOW, and yet she only got 18 months on the bench, and if she shows up and cries for them in a year and a half, and pays money to JLAP for group therapy ... back in to ride roughshod over hapless clients (or are they "marks") once again! Aint Hoosier lawyering a great money making adventure!!! Just live for the bucks, even if filthy lucre, and come out a-ok. ME on the other hand??? Lifetime banishment for blowing the whistle on unconstitutional governance. Yes, had I ripped off clients or had ANY disciplinary history for doing that I would have fared better, most likely, as that it would have revealed me motivated by Mammon and not Faith. Check it out if you doubt my reading of this, compare and contrast the above 18 months with my lifetime banishment from court, see appendix for Bar Examiners report which the ISC adopted without substantive review: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS

  2. Wow, over a quarter million dollars? That is a a lot of commissary money! Over what time frame? Years I would guess. Anyone ever try to blow the whistle? Probably not, since most Hoosiers who take notice of such things realize that Hoosier whistleblowers are almost always pilloried. If someone did blow the whistle, they were likely fired. The persecution of whistleblowers is a sure sign of far too much government corruption. Details of my own personal experience at the top of Hoosier governance available upon request ... maybe a "fake news" media outlet will have the courage to tell the stories of Hoosier whistleblowers that the "real" Hoosier media (cough) will not deign to touch. (They are part of the problem.)

  3. So if I am reading it right, only if and when African American college students agree to receive checks labeling them as "Negroes" do they receive aid from the UNCF or the Quaker's Educational Fund? In other words, to borrow from the Indiana Appellate Court, "the [nonprofit] supposed to be [their] advocate, refers to [students] in a racially offensive manner. While there is no evidence that [the nonprofits] intended harm to [African American students], the harm was nonetheless inflicted. [Black students are] presented to [academia and future employers] in a racially offensive manner. For these reasons, [such] performance [is] deficient and also prejudice[ial]." Maybe even DEPLORABLE???

  4. I'm the poor soul who spent over 10 years in prison with many many other prisoners trying to kill me for being charged with a sex offense THAT I DID NOT COMMIT i was in jail for a battery charge for helping a friend leave a boyfriend who beat her I've been saying for over 28 years that i did not and would never hurt a child like that mine or anybody's child but NOBODY wants to believe that i might not be guilty of this horrible crime or think that when i say that ALL the paperwork concerning my conviction has strangely DISAPPEARED or even when the long beach judge re-sentenced me over 14 months on a already filed plea bargain out of another districts court then had it filed under a fake name so i could not find while trying to fight my conviction on appeal in a nut shell people are ALWAYS quick to believe the worst about some one well I DID NOT HURT ANY CHILD EVER IN MY LIFE AND HAVE SAID THIS FOR ALMOST 30 YEARS please if anybody can me get some kind of justice it would be greatly appreciated respectfully written wrongly accused Brian Valenti

  5. A high ranking Indiana supreme Court operative caught red handed leading a group using the uber offensive N word! She must denounce or be denounced! (Or not since she is an insider ... rules do not apply to them). Evidence here: http://m.indianacompanies.us/friends-educational-fund-for-negroes.364110.company.v2#top_info

ADVERTISEMENT