The Indiana Supreme Court Committee on Rules of Practice and Procedure has published proposed amendments to the lawyer advertising rules, Indiana Rules of Professional Conduct 7.2 through 7.5. The public comment period for these amendments is open through March 1, 2010.

The proposed amendments had their genesis in a recommendation by the Board of Governors of the Indiana State Bar Association. I will summarize them here, with the caveat that they may not be adopted in this form by the Indiana Supreme Court.  Rule 7.1 is still reserved for future use.

RULE 7.2 ADVERTISING

The title of Rule 7.2 is no longer “Publicity and Advertising.” It is now simply “Advertising.” Rule 7.2(a) will define “advertise” to include “any manner of public communication partly or entirely intended or expected to promote the purchase or use of professional services of a lawyer or law firm or any employee of either, involving the practice of law or law-related services.”  The term is currently undefined.

Rule 7.2(b) currently contains a non-exclusive list of examples of permitted statements in advertising. It is proposed that this list be moved to a comment, which seems appropriate, since it is merely illustrative.  Somewhat puzzling is the exclusion of military service from the list of examples.  I do not think it is appropriate to read this exclusion as meaning it is not permitted; but if mentioned it must be accurate.

The general standard defining improper lawyer advertising, which is currently “false, fraudulent, misleading, deceptive, self-laudatory or unfair,” will be simply “false or misleading” statements or claims or advertising that promotes behavior that is illegal or that violates the Rules of Professional Conduct or Admission and Discipline Rules. While there was some degree of redundancy in the old list, the new one is striking for its elimination of self-laudatory statements.

Rule 7.2(c) currently lists a number of specific considerations in determining whether a claim or statement violates the general rule. Proposed Rule 7.2(c) integrates them with a similar list in Rule 7.2(d), and deletes some altogether.  I never understood the reason for having two separate lists of advertising no-no’s, so the consolidation of Rule 7.2(c) and (d) makes sense.  Rule 7.3(c) now contains a new proviso that advertising that would otherwise be presumed to violate the list will not do so if there are “special circumstances that serve to protect the probable targets of an advertisement from being misled, deceived or induced to violate the law.”  The rule does not say so, but it is likely that this language refers to the use of disclaimers.

Rule 7.2(c)(2) would eliminate the current prohibition on use of statistical data or information based on past performance, but retains the prohibition on predicting future success, now stating that doing so is improper even by implication. This would seem to clear the way for attorneys to post information about cases they have handled, but might warrant a disclaimer that the cases are not representative of all cases handled and should not be relied upon as being predictive of the outcome of any particular client’s case.  Sort of like the plastic surgeon whose ad displays a beautiful model with the disclaimer that he or she is not a patient.

The flat prohibition on use of testimonials or endorsements now found in Rule 7.2(c)(3) has been eliminated and will be replaced by a new limitation in Rule 7.2(c)(8) on any testimonial or endorsement that “in light of all circumstances, is intended or is likely to create an unjustified expectation about the abilities of a lawyer or law firm or a person’s legal rights.” Once again, disclaimers might be in order if lawyers choose to use testimonials or endorsements.

Proposed Rule 7.2(c)(3) prohibits advertising that “contains a claim about a lawyer, made by a third party, that the lawyer could not personally make consistently with the requirements of this rule.” While this is new to Rule 7.2, it is largely a restatement of the basic principle in Rule 8.4(a) that a lawyer cannot violate the rules through the acts of another.

The ISBA proposed a rule on comparative claims in advertising that would have allowed them if they are capable of being factually substantiated. The Rules Committee has apparently rejected that proposal.

The prohibition in current Rule 7.2(c)(3) prohibiting advertising that creates unreasonable expectations, has been somewhat narrowed to prohibit referring to results obtained that create an expectation of “similar results in future matters.”

Rule 7.2(c)(6) is a new specification of improper advertising directed at claims that use dramatizations or recreations, requiring a “conspicuous” disclosure that it is such. Conspicuousness is not defined.

Rule 7.2(c)(7) combines current Rule 7.3(c)(1) and (2) to prohibit material factual misrepresentations or omissions necessary to prevent a statement from being misleading.

Rule 7.2(c)(8) is a softening of the current prohibition in Rule 7.2(d)(3) prohibiting testimonials or endorsements to now permit them if they are not likely to create unjustified expectations about the abilities of the lawyer or firm or a person’s legal rights. This opening suggests that appropriate disclaimers could now accompany use of testimonials or endorsements that were previously categorically prohibited.

Rule 7.2(c)(9) is a straightforward incorporation of the current Rule 7.2(c)(4) prohibition on stating or implying certification or specialization without satisfying the specialization requirements of Prof. Cond. R. 7.4, which in turn incorporates the specialty certification process found in Admis. Disc. R. 30.

Rule 7.2(c)(10) is an incorporation of the current prohibition in Rule 7.2(c)(5) of stating or implying an ability to improperly influence a court, tribunal or public body or official, with the addition that it also prohibits stating or implying that the lawyer “will receive any favored treatment” from the same.

The prohibition in current Rule 7.2(d)(6) prohibiting advertising that violates Rule 7.3 is retained in Rule 7.2(c)(11).

Part of current Rule 7.2(e) content shifts to Rule 7.2(d) with the word “communication medium” replaced with the phrase “advertising medium”. It is unclear whether this word change, combined with the definition of “advertise” constitutes a narrowing of the scope of this provision.

The balance of current Rule 7.2(e) retains the language that requires communications that are not apparent from context as being advertisements to be explicitly identified as such. Interestingly, the current requirement that lawyers personally approve advertising and that copies, together with a record of dissemination, be kept for six years is eliminated.

One thing that is new to the advertising rules is the presence of official commentary. Comments can be helpful aids to interpreting the intent and scope of the black-letter rules.  Due to space considerations, I will not describe in detail the comments to Rule 7.2.  The subject matter of the comments is as follows: Comment [1] deals with the reach of the rule to largely exclude application to private communications.  Comment [2] contains a statement of policy about the value of lawyer advertising and some of the ways in which advertising can be abused.  Comment [3] is the old list from Rule 7.2(b) of permissible subjects of advertising.  Comment [4] discusses the special problems associated with subjective claims in advertising, stopping short of discouraging them entirely.

RULE 7.3 RECOMMENDATIONS OR SOLICITATION OF PROFESSIONAL EMPLOYEMENT

The structure of Rule 7.3 will largely remain the same. Rule 7.3(a) adds language to expand the in-person solicitation prohibitions to include solicitations by employees and agents of lawyers.  It also expands the current allowance of in-person solicitation to include, in addition to family members, persons with whom the lawyer has a “close personal relationship.”  It also expands the allowance of in-person solicitation of persons with whom a lawyer has a prior professional relationship to include persons with whom a lawyer’s law firm has a prior professional relationship.

Rule 7.3(b) prohibits written solicitation of professional employment when the proposed recipient person has made it known that the solicitation is unwelcome or it involves coercion, duress or harassment. The proposed amendments make some new points.  First, they state that the rule applies to solicitation of non-lawyers.  Apparently lawyers are uniquely equipped to resist coercion.  This rule currently applies to solicitations “by written or recorded communication.”  The amendments now state that this section applies to solicitations “in person by written or recorded communication, by telephone, or by electronic means.”  It is difficult to know what this means given the absence of a comma between “in person” and “written or recorded communication.”  Looking at existing language, this aspect of the amendment seems to have been a drafter’s attempt at consolidation and that a comma was intended, and that the old meaning of the rule remains, which is that use of unwelcome solicitations or those involving coercion, duress or harassment apply to all employment solicitations, even if they are otherwise permitted by paragraph (a).  Finally, the amendments include a prohibition on employment solicitations that contain claims that are prohibited by Rule 7.2—a seemingly unnecessary and uncontroversial statement.

Rule 7.3(c) governs so-called targeted solicitations. Most commonly, these are letters or other forms of communication targeted at prospective clients who are known to have experienced an event that would normally trigger a need for legal services, such as an accident or an arrest.  This paragraph does not apply to, and was never intended to apply to, general advertisements of legal services without regard to whether the recipient is known to have experienced a triggering event.  As in paragraph (b), amendatory language proposes that the rule will apply to communications on a lawyer’s behalf, as well as directly from a lawyer—an obvious point.

As with the amendments to (b), the amendment states that it applies to communications to “specific” prospective clients. I’m not sure why this word was necessary—perhaps to reinforce the idea that this paragraph has no application to letters directed to classes of potential clients, rather than to individual prospective clients.  To me, this is more confusing than clarifying.  Imagine that a lawyer files a wage and hour suit against a particular employer and wishes to solicit other similarly situated employees to join the litigation in the form of a mass action.  While the envelope is directed to a specific prospective client, the letter is addressed generically to “Dear Employee of XYZ Corporation.”  Is this a letter to a specific prospective client or not?  It would appear that it is directed to a person “potentially in need of legal services in a particular matter.”

As with paragraph (b) new amendatory language expands the Rule 7.3(c) exemptions to lawyer communications with other lawyers and with persons with whom the lawyer or the lawyer’s firm has close personal relationship. Targeted solicitation communications currently require a disclaimer that they constitute “Advertising Material.”  The amendment requires that this legend be in all capital letters.  The amendments contemplate the use of electronic communications for these purposes by requiring that they “conspicuously identify the material as Advertising Material in the subject line.”  Currently, there is a requirement that a list of persons to whom targeted solicitations are directed have to be retained for one year.  The retention period has been increased to three years and the rule has been clarified to also require that a copy of the communication must also be retained for that period.

Rule 7.3(c)(2) deals with contacts with potential persons to be joined as parties to a class action. Additional language is proposed that would require that the content of such communications must comply with Rule 7.2—meaning they cannot include false or misleading claims.

Rule 7.3(e) deals generally with lawyer referral services. The distinction between lawyer referral services and collective advertising by lawyers is a fairly hot topic these days.  The proposed amendments do not appear to address that topic in the black letter.  However, proposed Comment [5] seems to weigh in on it, albeit not definitively: “[T]he referring entity must not be operated for the purpose of procuring legal work for the pecuniary benefit of the operating lawyer or the lawyer’s firm.”

The proposed amendments to this paragraph are largely cosmetic, with the exception of creating a new category of lawyer referral service that does not require specific approval: “a legal office or public defender office operated by a Circuit or Superior Court within the State of Indiana.”

The proposed comments to Rule 7.3 are significant for reasons other than the fact that there were previously none. Some highlights:

Comment [2]: “Prior professional relationship,” which is a key concept behind allowing direct client solicitation, is defined to mean “a previous direct and substantive professional relationship with the lawyer or a member of the lawyer’s firm.”

Comment [3]: A former employee of an organizational client has a prior professional relationship with the organization’s lawyer or law firm for purposes of the rule, and is therefore amenable to direct-contact solicitation, if he or she was employed by the organization during the representation and acquired knowledge about the issues involved in the representation. “In such a case, the former employee may be contacted … with an offer of representation in the litigation, which the former employee is free to accept or reject.”  This comment goes on to point out that the representation of the former client must comply with concurrent conflict of interest principles—primarily Rule 1.7.  This comment is significant because once an attorney-client relationship is established between the organization’s lawyers and the former employee, the former employee becomes off-limits to direct contacts by counsel for any party adverse to the corporation.  See Rule 4.2.

RULE 7.4 COMMUNICATION OF SPECIALTY PRACTICE

Rule 7.4 deals with communicating to the public that a lawyer specializes in a particular law practice area. The proposed rule still begins by stating the general proposition that lawyers may communicate that they do or do not practice in particular fields, but stopping short of saying they “specialize.”

The general rule on communicating about specialization is that it is prohibited unless the lawyer is certified by an independent certifying body that has been approved as a certifying body by the Indiana Commission on Continuing Legal Education. That limitation still stands, with that topic now covered in paragraph (d), rather than paragraph (b).  This rule has not changed much in substance, although in new paragraph (e) it discusses in more detail the role and authority of the CLE Commission.

The traditional exceptions for patent and admiralty attorneys have been retained, but separated from a single subsection (c) to subsections (b) (patent) and (c) (admiralty).

No comments are suggested to accompany the black letter of Rule 7.4. The ISBA proposal included extensive comments.

RULE 7.5 FIRM NAMES AND LETTERHEADS

Rule 7.5 has been substantially rewritten both as to style and substance. The existing rule states the general proposition that firm names and related displays of those names cannot be false, fraudulent, misleading, deceptive, self-laudatory or unfair.  Rule 7.5(a) now simply states that firm names must comply with Rule 7.2, which prohibits false or misleading statements in lawyer advertising.

A major proposed change to Rule 7.5 relates to use of trade names. Existing Rule 7.5(b) states: “In that it is inherently misleading, a lawyer in private practice shall not practice under a trade name.”  Proposed Rule 7.5(a) states: “A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and if it is not otherwise in violation of Rule 7.2.”  The proposal goes on to provide that: (1) Trade names must contain the applicable limited liability entity abbreviations if a firm such an entity.  (2) Trade names may, as is now the case, include “the name or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession.”  (3) “Words that identify the field of law in which the firm concentrates its work, words that describe the geographic location of its offices, and words that indicate a language fluency may be used, so long as the firm name includes the name of a lawyer, or the name of a deceased or retired member of the firm.”

For my dime, the proposed trade name provisions are a bit of a hash. It may stem in part from the fact that “trade name” is not defined, so it is not clear what makes a law firm name a trade name.

It is also unclear whether trade names are limited to describing fields of law practice, geographic locations or language fluency. For example, if it not otherwise false or misleading, may a lawyer use some other type of trade name like: The Committed Law Office of Anna Advocate?  See, Matter of Benkie and Crawford, 892 N.E.2d 1237, 1240 (Ind. 2008) (“commitment to obtaining the best possible settlement” does not create an unjustified expectation; “I can obtain the best possible settlement” does create an unjustified expectation.)  The rule is unclear and the comments do not clarify this point.

The current provision in Rule 7.5(c) prohibiting lawyers from holding themselves out as partners unless they actually are partners has been shifted to Rule 7.5(d) and somewhat recast and broadened as: “Lawyers may state or imply that they practice in a partnership other organization only when they in fact do so.”   Proposed Comment [2] expands on this by stating that a firm-like name, e.g., “Smith and Jones,” is impermissible unless the specific nature of the relationship of Smith and Jones is indicated.  The comment unhelpfully fails to state what type of disclaimer would be sufficient.  For example, is the commonplace one: “A Professional Association, Not a Partnership” sufficient?

CONCLUSION

In the regulation of lawyer advertising, Indiana is fairly conservative.  These proposed amendments will make some changes, if adopted, but those changes will not catapult Indiana into the vanguard of states embracing a laissez-faire attitude toward lawyer advertising.  Whether the Rules Committee’s proposal will resonate with the Court itself remains to be seen.  Stay tuned.