Advertising rule would put lawyers on notice of violations

Lawyers who advertise might have fewer worries about potential disciplinary violations if a proposed rule change is adopted next month by the Indiana State Bar Association.

The House of Delegates will consider three changes, including a proposal that would give the Supreme Court Disciplinary Commission the option of sending a warning to an attorney whose ads may violate Rules of Professional Conduct.

“For those who advertise, I think having the ability to receive a caution letter will be important for them,” said Fort Wayne attorney Cathleen M. Shrader, a partner at Barrett McNagny LLP. Shrader serves on the state bar’s Lawyer Advertising Rules Review Committee, which will present the proposed change to the House of Delegates Oct. 9 at the ISBA’s annual meeting in French Lick.

The proposed change is one of three dealing with attorney advertising, but likely the most significant for attorneys who advertise.

The caution letter language would be added under Admission and Discipline Rule 23, Section 10, and would require the Disciplinary Commission executive secretary to issue a caution letter if an advertising violation is deemed a mistake, inadvertent or excusable neglect, and the alleged violation presented no risk of harm to clients or the public.

Shrader

The letter would inform the attorney of the alleged violation and provide time for it to be corrected. If the violations are corrected within a specified timeframe, no further disciplinary action would be taken.

“Certainly people have inadvertently run afoul of the rules, and if their rule violation is a result of a mistake and caused no harm and wasn’t likely to harm a member of the public, I think that’s an appropriate way to handle those mistakes,” Shrader said.

Bingham Greenebaum Doll LLP attorney Karl Mulvaney chairs the advertising review committee and said the commission would still be able to issue a verified complaint for discipline if an advertising violation were deemed injurious or intentional.

Mulvaney

“The sense of the committee was a lawyer ought to have a chance to correct a problem if the Disciplinary Commission thinks it’s a problem,” Mulvaney said.

Attorneys cited the In the Matter of Anonymous disciplinary action from April 2014 as a motivation for the proposed change. In that case, an attorney who advertised his services through the Law Tigers website was issued a private reprimand for testimonials on the site over which he had no content control. Mulvaney represented the attorney in that case.

The House of Delegates will consider two other proposed changes dealing with advertising:

• Removing the requirement that attorneys include an office address in advertising. The proposed change to Rule 7.2 would continue to require the name of at least one lawyer or law firm on any communication considered advertising.

• Removing a substantial portion of Comment 2 under Rule 7.1 regarding communications concerning a lawyer’s services. The comment would simply say, “Truthful statements that are misleading are also prohibited by this rule,” and strike several subsequent paragraphs.

Mulvaney said Rule 7.1 became overloaded with examples of what constituted violations that made the comments to the rule unwieldy. The proposed change makes the rule more closely conform to the American Bar Association model rule.

Shrader said dropping the address requirement is a nod to the changing nature of advertising and the profession. The rule was added in 2011, and she said the committee didn’t see much need for the requirement when a lawyer easily can be located online, for instance.

“Speaking for myself,” Shrader said in favoring the rule changes, “they make the rules work better both for the public and the attorneys who look to them for guidance.”

Bloomington-based attorney Ken Nunn also favors the changes. As an attorney who advertises heavily and serves on the advertising review committee, he advocated for the caution letter proposal. He said the notice provision is “the best rule of the batch” and cited the Anonymous case as an example of a situation where a letter giving the lawyer time to correct a violation would have been a more fitting outcome.

Nunn

Attorneys would be responsive if they received the benefit of the doubt in the form of a caution letter for harmless technical violations, Nunn said. “That is a tremendous step forward to easing the heavy burden the disciplinary commission has,” he said.

Lawyers on the committee considered, but ultimately opted not to move forward with a proposal to develop a form of an advertising pre-approval system like one used in Kentucky. Nunn said a program like that probably wouldn’t work in Indiana.

“I’ve got 57 commercials on TV right now,” Nunn said. “They don’t have time to look at them.” He was concerned that any review might also render commercials untimely if they addressed mass tort actions or areas of developing litigation. Attorneys also have expressed concern about the costs associated with pre-approval as well as First Amendment prior restraint considerations.

Shrader said the pre-approval system works in Kentucky in part because that state’s bar is integrated with the state Supreme Court. Developing a workable pre-approval system in Indiana would be difficult because any effort of the state bar here would be independent of disciplinary authorities, she said.•