Bell/Gaerte: 3 things to know about ethical responsibility for others’ conduct

Much has already been written about the recent Matter of Anonymous that was issued by the Indiana Supreme Court April 11. 6 N.E.3rd 903 (Ind. 2014). In this case, the respondent was found to have violated the Indiana Rules of Professional Conduct, including Rule 7.1, for making “a false or misleading communication about the lawyer or the lawyer’s services” due to various testimonials, settlements and verdicts that appeared on a website. 6 N.E.3rd at slip op. 6.

While that seems fairly standard, what made this case stand out from a more run-of-the-mill disciplinary advertising decision was that the “settlements, verdicts, or testimonials” on the website were not the respondent’s. Id. at 3. Instead, the website was run by an organization that entered into a license agreement with the respondent and whose website identified the respondent as the organization’s exclusive source for legal services in Indiana. Id. at 2.

The website posted the organization’s results and provided testimonials like the organization “changed my life in a big way and my family received our fair share or justice.” Id. at 3. The Anonymous decision noted that while none of these communications “related to the Respondent, the website did not disclose that they did not relate to Respondent.” Id. The court reasoned that “the average viewer could not differentiate between Respondent and the statements about [the organization] on the [organization’s] website and that Respondent is therefore responsible for objectionable content on the website.” Id. at 6 (brackets added). (Read more about the case and the attorney disciplined.)

This is not the only time someone in Indiana has been disciplined for the conduct of another. Here are three things to know about the ethical responsibility for the conduct of others.

1. Local counsel can be responsible for co-counsel’s statement in a pleading

In Matter of M.W., 777 N.E.2d 714, 717 (Ind. 2002), the respondent was found to have violated Rule 8.2 of the Indiana Rules of Professional Conduct for making statements “with reckless disregard as to the truth or falsity concerning the integrity of a three-judge panel of the Court of Appeals.” Specifically, the court took issue with statements made in a footnote in a petition to transfer. Id. at 716-7.
 

However, the respondent did not make the statements in the footnote. Specifically, the court noted that “the language of the footnote was not authored by the respondent but by an out-of-state co-counsel.” Matter of M.W., 782 N.E.2d 985, 987 (Ind. 2003). In making this ruling, the court cited to the fact that the signing and filing the brief at issue constituted “joint responsibility pursuant to Indiana Admission and Discipline Rule 3(2)(d).” Id. Therefore, a lawyer can be held ethically responsible for the statements of co-counsel in a pleading.

2. An attorney is responsible for the actions of his or her staff

Let’s say your secretary posts something confidential on Facebook, your bookkeeper bungles the accounting on your trust account or the private investigator you hired has a penchant for interviewing represented people about the matter for which they are represented. If these three people were lawyers, your secretary would have violated Rule 1.6 of the Indiana Rules of Professional Conduct, your bookkeeper may have violated Rule 1.15 of the Indiana Rules of Professional Conduct and your investigator would have violated Rule 4.2 of the Indiana Rules of Professional Conduct.

Good thing they are not lawyers. If the Disciplinary Commission calls you, can you successfully argue, “It was not me, it was them?” Maybe. Under Rule 5.3 of the Indiana Rules of Professional Conduct, a lawyer with “managerial authority” “shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with” the Rules of Professional Conduct. So, if you can show your “reasonable efforts” to supervise your staff, you should be able to avoid ethical responsibility for the actions of your staff.

3. An attorney is responsible for the actions of his or her marketing agent

So now we have to come back to advertising. Without going into too much detail regarding the advertising rules, the rules don’t allow you to talk about past performance, make references to results or give testimonials. (Although Rule 7.2 does allow an attorney to boast that he or she has malpractice insurance, which is always a big selling point with clients.) So what is a marketing agent supposed to do besides gouge his or her eyes out?

I am not sure. However, you could see how a trained marketing agent, who wants to exercise his or her talents, would feel restrained by these Rules of Professional Conduct and may feel inclined to ignore the rules at your peril. Under Rule 5.3, you are responsible for the marketing agent’s actions. Many grievances have been issued when the marketing agent runs afoul of these rules and the supervising attorney is asleep at the switch. If you hire a marketing agent to do your ads, make sure you make the final call on what is produced.•

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James J. Bell and K. Michael Gaerte are attorneys with Bingham Greenebaum Doll LLP. They assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal defense and are regular speakers on criminal defense and ethics topics. They can be reached at [email protected] or [email protected]. The opinions expressed are those of the authors.