Attorneys scrutinize ad ruling

Two Indianapolis law firm partners wonder why they were not given a chance to prevent potential lawyer advertising violations as colleagues have been given off and on through the years.

Scott A. Benkie and Douglas A. Crawford received public reprimands Sept. 4 from the Indiana Supreme Court, with justices finding they'd violated a pair of professional conduct rules regarding lawyer advertising because of two print brochures they'd sent years ago and no longer use.

The ruling has revived debate about how the court's Disciplinary Commission regulates lawyer advertising, causing the legal community to once again look at the professional conduct rules and question whether any change is needed.

Reaction reverberating across the state is that the rules aren't clear and many attorneys don't fully understand what's required or not allowed, a mentality that even the state bar association recognized two years ago when submitting proposed rule changes to the Indiana Supreme Court's Rules of Practice and Procedure Committee for consideration. Though the high court has been silent so far, the proposed rule revisions overlap with the issues in this latest disciplinary ruling and show how much confusion exists.

"We've gotten numerous calls from other lawyers who don't understand what we did wrong, and it's not something we completely understand," Crawford said. "We lawyers are treading in murky water on these issues. I'm not sure what more we could do."

In the combined decision, In the Matter of Scott A. Benkie and Douglas A. Crawford, Nos. 49S00-0402-DI-82 and 49S00-0402-DI-83, the court issued public reprimands to the attorneys for misconduct because of the wording used in the brochures designed to solicit clients.

Those direct mail brochures were first submitted to the Disciplinary Commission in 1996 and 2001 respectively with the $50 filing fee for each, as required by Professional Conduct Rule 7.3(c). A letter sent with the first brochure invites the commission to contact the firm with any questions or concerns. The attorneys received a letter noting the office does not render advisory opinions on the propriety of targeted solicitations submitted for approval.

The Disciplinary Commission in February 2004 charged them with violating Rules 7.2(b) that governs the use of a public communication containing a false, fraudulent, misleading, deceptive, selflaudatory, or unfair statement or claim; 7.2(c)(3) that governs use of a statement intended or likely to create an unjustified expectation; 7.2(d)(2) that governs the use of public communication that contains statistical data or other information based on past performance or prediction of future success; and 7.3(c) that governs solicitation of professional employment without the words "Advertising Material."

In one brochure, the phrase "commitment to obtaining the best possible legal settlement for you and your family" was included as well as the term "Legal Advertisement." That was later changed to "Advertising Material" – as required by the rule. The brochures were filed with the Disciplinary Commission as required by Rule 7.3(c); the attorneys never received a letter from the commission advising them to change the language. The commission sometimes has notified lawyers when changes need to be made.

Justices found the attorneys didn't violate Rule 7.2(c)(3) or 7.2(b) with the phrase "commitment to obtaining the best possible legal settlement" because the phrase only promises prospective clients a commitment to their cases, not that the attorneys can obtain the best possible settlement.

But the court decided that Benkie and Crawford did violate the rules by not including "Advertising Materials," and the use of "Legal Advertisement" on earlier brochures was a violation because it may give the impression the commission or another body had reviewed it and found it to be "legal." The use of quotes from newspapers on their performance isn't allowed because the information could be edited and selectively used to mislead clients, the court wrote.

Justices found the fact the attorneys sought advice from the commission regarding their advertising materials mitigates the degree of their culpability; however, the rule requiring the filing of advertising materials with the commission doesn't require the commission to review materials for violations. The court noted that the requirement encourages self-policing by attorneys and preserves a record of the advertisement in case there is a dispute.

Chief Justice Randall T. Shepard and Justices Brent Dickson and Theodore Boehm concurred while Justices Frank Sullivan and Robert Rucker concurred, except they would have found no violation relating to the use of newspaper quotes in their advertising brochures.

Even after the court's decision, Benkie and Crawford don't grasp why they were singled out. In researching the Disciplinary Commission's filing and approval process, they found 150 letters dating back as far as 1990 that frequently gave attorneys and firms a chance to correct identical issues in lieu of a formal investigation.

One unsigned, handwritten note questions whether a warning letter should be sent instead of filing charges. A letter dated March 2000 points out how an Indianapolis attorney faced a potential violation for using the phrase "Legal Advertising Material" – as Benkie and Crawford had done. That letter states, "I believe that use of the description … might lead the reader to conclude that it is advertising material that has somehow been determined to be lawful or otherwise approved by some official body. While I know that it was not your intent to convey this meaning, I would appreciate it if you would correct it to be in strict conformity with the rule and resubmit it."

Dozens of letters offer a chance to revise submissions, others include comments about the commission not able to give legal advice and not able to conduct any approval or disapproval functions. A common theme in the letters is a statement from the commission staff attorney that says "the office is not staffed or funded to do pre-approvals on such submissions."

Crawford and Benkie dispute the notes about the commission not conducting any approval or disapproval functions, as it obviously happens in certain cases and they found many examples in the commission's filings.

"We didn't realize they were reviewing on a selective basis, and we were surprised to find that out," Crawford said. "We found that to be disconcerting because you'd think that all attorneys are treated the same."

Attorneys who represent law firms and lawyers on these types of issues caution them to be as careful as possible and know what the existing rules are.

"Lawyers need to pay closer attention to their advertisements, and be careful not to step over the lines that exist in the Rules of Conduct, even in some cases where the representations are absolutely true," said partner Karl Mulvaney with Bingham McHale. "There is no question that Indiana may be as restrictive as any state on lawyer advertising. Some may view the rules as harsh; but in the end the Supreme Court's intent is to allow truthful, and not misleading advertising, so as to protect the public."

Mulvaney has observed attorneys sometimes inadvertently violating the rules by turning marketing activities over to marketing firms that don't understand or appreciate the restrictions. Lawyers should always review any proposed advertisements to make sure they comply, he said.

Harrison & Moberly attorney David Russell said he believes this opinion will make the legal community more mindful of the rules rather than have a chilling effect on lawyer communication, as he's heard some suggest.

"This can at least help educate and offer some guidance on moving through the profession, what you should worry about down the road in this area," he said.

But others are observing a problem with how the lawyer advertising rules are constructed and the regulation system that can seem arbitrary and inconsistent.

"It is not that anyone is trying to sidestep the rules; there is just too much ambiguity out there," said Bob Birge of the Indianapolis-based Law Firm Marketing Network."It's a gray area where the answers are not as clear as perhaps they should be. What I'm hearing from firms around the state is that they're looking for direction and consistency."

Possible changes are already in the works, but proposed revisions are moving slowly through the review process and no timeline exists for when they might receive final consideration. A special committee had been studying advertising rules since early 2006 and hammered out revisions designed to provide more clarity and guidance on new forms of advertising and communications that have appeared since first adopted in the mid-1980s. Changes in Section 7 hit specifically on the provisions addressed in Benkie and Crawford – not changing the intent but cleaning up language to make it more clear about the type of solicitation used and the audience receiving that material.

A point that didn't come from that study committee, though, involved changing how Indiana's regulation setup works for lawyer advertising. Committee members weren't able to fashion a useful review system for pre-approval of lawyer advertising, such as providing a safe harbor clause for careful attorneys who might have done what Benkie and Crawford did in consulting the commission. The sticking point came down to the perceived administrative burden that would be created; models in other states showed annual operating expenses for such a system from $200,000 to $609,000.

Indiana's Disciplinary Commission just doesn't have the resources to regulate the volume of advertising out there, said the commission's Executive Secretary Donald Lundberg. He said it wouldn't be fair to tax all attorneys for regulation – putting the burden of regulating advertising attorneys on those who don't advertise. Instead, the commission requires a $50 filing fee for any written, recorded, or electronic communication from a lawyer specifically soliciting to a prospective client.

"It's a filing requirement, not a review process," Lundberg said. "The Supreme Court is saying here that although there may be lawyers who've received the benefit of an informal advisory, lawyers don't have that right."

Between July 1, 2007, and June 3, 2008, the commission collected $10,300 in filing fees, which translates to an estimated 206 targeted solicitations, Lundberg said. That figure conservatively illustrates the amount of advertising out there as some may not have re-filed for minor changes. That doesn't count materials the commission may not even realize exists.

"We get filings and fees sent to our office where it's clear that the lawyer is sending out without regard to who's receiving," he said. "We return the filing and fee to the lawyer, saying it's not a targeted solicitation. That takes time."

Commission staff looks at the materials for glaring violations, but they aren't always capable of doing an in-depth investigation, Lundberg said. They don't have the resources to explore accuracy and all other potential violations with each filing, but they do their best and also rely on the public and legal community to report known violations.

Lundberg reminds the legal community that the efficiency of the state's lawyer advertising rules will always be up to individual attorneys – no matter what they say.

"Regulation of lawyer advertising is like the regulation of speed limits. In the sense of the limits you have on having so many cars and so few police patrols, comprehensive regulation of those speed laws is impossible. Police don't pretend to be able to get every speeder, but if you have the misfortune of driving down that particular road at a time they see you, you're going to get ticketed," he said.

"We hope, that just like the police speeding enforcement, that all this will have some general deterrence effect," he said. •