Bell & Gaerte: 3 things to know about legal advertising

The Indiana Rules of Professional Conduct define the term “advertising” broadly. Ind. Professional Conduct Rule 7.2(a) defines “advertising” as “any manner of communication partly or entirely intended or expected to promote the purchase or use of professional services.” (Emphasis added) Therefore, these rules cover communications on your website, blog and even social media. Regardless of whether or not you advertise on billboards, you likely need to pay attention to the advertising rules. Here are three things to know about legal advertising.

1. The truth will not always set you free.

Indiana Rule of Professional Conduct 7.1 states that: “A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.” This rule also states that a communication may be misleading if it “omits a fact” which makes the communication a material misrepresentation. Therefore, the fact that every representation included in a communication can be verified is not enough to satisfy the requirements of Rule 7.1. If you truthfully state in an advertisement that you have “never lost a jury trial,” that statement will be considered misleading if you have never actually tried a jury trial. Simply being literally truthful is not sufficient.

An illustration of a “misleading” advertisement can be seen via In the Matter of Gerling, 777 N.E.2d 1097 (Ind. 2002). In that case, a law firm’s billboard advertisement stated “Expect more from a Gerling attorney.” All of the individuals on the billboard were employees of the firm, but one was not a lawyer. Gerling argued that the material was not misleading because there was no claim that everyone pictured was an attorney. However, the court found that the advertisement was still misleading because not everyone on the billboard was an attorney – from whom you could “expect more.” Id. at 1097-98.

2. Advertise your “commitment” to obtaining results.

The Comment to Rule 7.1 prohibits “any reference to results obtained that may reasonably create an expectation of similar results in future matters.” The Supreme Court of Indiana disciplined an attorney who stated in his advertisement that he could “obtain the best possible settlement” because it likely created unjustified expectations by prospective clients. Matter of Wamsley, 725 N.E.2d 75-77 (Ind. 2000). However, the Supreme Court determined that the “commitment to obtaining the best possible settlement” was not impermissible. Matter of Benke and Crawford, 892 N.E.2d 1237, 1239 (Ind. 2008). In doing so, the court explicitly distinguished an advertisement’s promise to obtain a result from the promise to be committed to the same. In your marketing materials, emphasize your “commitment to results” and de-emphasize or eliminate your reference to the actual results themselves.

3. Don’t trust your final marketing product to a non-lawyer.

Many attorneys have faced disciplinary issues because they delegated the task of producing an advertisement to an advertising agency or a non-lawyer staff member in his or her firm. Guideline 9.1 of the Indiana Rules of Professional Conduct states that “a non-lawyer assistant shall perform services only under the direct supervision of a lawyer.” Rule 5.3 of the Indiana Rules of Professional Conduct further discusses responsibilities regarding non-lawyer assistants. On a number of occasions, the Supreme Court of Indiana has found a lawyer’s conduct in violation of the Rules of Professional Conduct for the failure to supervise a non-lawyer.

For example, the court found that an attorney violated Rule 9.1 when he allowed his assistant to place an advertisement containing objectionable content. In re Cartmel, 676 N.E.2d 1047 (Ind. 1997). The advertisement was published multiple times before the attorney saw it, at which point he “promptly cancelled it.” Id. at 1049. However, the cancellation was too late for disciplinary purposes. The Supreme Court of Indiana emphasized that the attorney was ultimately responsible for any advertising material created on his behalf and if the material was objectionable he was ultimately responsible. The main lesson here is that all final products produced for an advertisement must be reviewed by a lawyer to ensure that the advertisement complies with the Rules of Professional Conduct.•

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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 via email at [email protected] or [email protected]. The opinions expressed are those of the authors.