Last month’s column covered general guidelines on lawyer advertising and publicity. Drawing on disciplinary cases decided in just the past three years, let’s get a little more specific about the content of lawyer advertising.
What’s in a name? Rule of Professional Conduct 7.5(b) (2005) restricts the use of trade names. So, for example, in Matter of Schwebel, 824 N.E.2d 670 (Ind. 2005), the Court held that “Personal Injury Clinic Law Office” violated that prohibition. Going even further, the Legal Ethics Committee of the Indiana State Bar Association opined that the use of alphabetical tricks, like “AA Jane Doe, Attorney,” to get preferred ranking in the Yellow Pages, violates the prohibition against using trade names and is otherwise deceptive. See, Opinion 1 of 1999. You can view this online at http://www.inbar.org/content/legalethics/legalethics2.asp
Websites: You post it; you own it. In Matter of Philpot, 820 N.E.2d 141 (Ind. 2005), the Court issued its first disciplinary order about website content. As a general proposition, the fact that lawyer advertising or publicity appears on a website does not in any way exempt it from the rules governing lawyer advertising and publicity. Although not apparent on the face of the Court’s summary order, in Philpot the lawyer incorporated content from another website that the Court found to be deceptive and prejudicial to the administration of justice because it advocated that parents in special education mediations lie and use improper tactics like making false demands. So when a lawyer incorporates website content from other sources, the lawyer is accountable for that content. An interesting open question is whether a lawyer can also be held responsible for content that is accessible directly from the lawyer’s website via a link. The prudent lawyer will review all website content thoroughly, including content that is incorporated into the website via links to other websites.
Television advertising: “Let’s settle this one.” It should be obvious that television is an advertising medium governed by the Rules of Professional Conduct. In part because of the prominence of the advertising campaign, the case of Matter of Keller and Keller, 792 N.E.2d 865 (Ind. 2003), is of similar prominence. The primary issue was the use of claims of quality. See, Rule 7.2(d)(4) (2005). The Kellers, plaintiffs’ personal injury lawyers, used actor Robert Vaughn to tout their personal injury practice in a series of vignettes that typically ended with rather menacing-looking insurance company representatives urging a settlement mostly because of the identity of claimant’s counsel, rather than the merits of the claim. This, the Court held, violated the prohibition against flogging legal services with claims of quality. There are several additional interesting aspects of the Keller case. First, the Court analyzed and rejected a First Amendment defense. Second, the Court found that using Vaughn to urge that injured people hire the Kellers violated the prohibition, now in Rule 7.2(d)(3), against use of testimonials or endorsements. Third, the Court thought a brief, written disclaimer on the screen that said, “No specific result implied,” was inadequate to overcome the ad’s non-compliance. Finally, quoting from Bates v. State Bar of Arizona, 433 U.S. 350, 383 (1977), the Court set the stage for generally analyzing compliance with the rules governing lawyer advertising: “[B]ecause the public lacks sophistication concerning legal services, misstatements that might be overlooked or deemed unimportant in other advertising may be found quite inappropriate in legal advertising.” Keller, 792 N.E.2d at 869-870, quoting Bates, 433 U.S. at 383.
Stealth advertising—press releases. Sometimes lawyer advertising is not in an overt format, yet it is still governed by the advertising and publicity rules. Take the case of Matter of Allen, 783 N.E.2d 1118 (Ind. 2002). In the immediate aftermath of an airplane accident, Allen issued a press release stating that family members of two victims had contacted him, but that he did not plan to file suit immediately. The clear implication was that he had been hired, but he had not. The Court found the press release to be governed by the rules regulating advertising and publicity, and it violated those rules by containing a false statement. Take note that Rule 7.2(e) states, in part, that, “An advertisement must be identified as such unless it is apparent from the context that it is an advertisement.”
Specialization—a dirty word? Not really, but the ability to promote oneself as a specialist is limited by Rule 7.4 (2005) to lawyers who have been certified as specialists in a particular field of practice under the specialty certification regime governed by Indiana Admission and Discipline Rule 30. Claims of specific expertise are probably improper even for certified specialists, although statements to the public that a law practice is limited to or concentrated in a particular practice area are not. In the recent case of Matter of Anonymous, 783 N.E.2d 1130 (Ind. 2003), two non-certified lawyers improperly claimed to “specialize” in elder law. Words like “specialty” or variants thereof are off limits to uncertified lawyers.
Billboards—a picture’s not necessarily worth a thousand words. The billboard is a form of advertising that does not lend itself to wordiness. Still, it’s possible to get it wrong. Take Matter of Gerling, 777 N.E.2d 1097 (Ind. 2002), for example. The Gerling firm promoted its services in the personal injury field by means of a billboard that promoted its lawyers with the slogan, “Expect more from a Gerling lawyer.” The slogan was accompanied by a large picture of a group of professionally dressed people, one of whom was an African-American female. All of the individuals portrayed were lawyers, save the African-American female, who was a member of the firm’s support staff. This was misleading because of the billboard’s strong implication that these were the Gerling lawyers from whom one was entitled to expect more. A potential client who wished to be represented by an African-American female lawyer would have been out of luck at the Gerling firm.
Who wants to be a millionaire? Rule 7.3(d) (2005) prohibits claims that contain “statistical data or other information based on past performance or prediction of future results.” In Matter of Coale, 775 N.E.2d 1079 (Ind. 2002), the lawyer’s targeted solicitation materials included numerous references to large financial recoveries obtained on behalf of injured clients. The Court found that these statements violated the predecessor to Rule 7.3(d) (2005). The concern addressed by this prohibition is the misleading impression given by focusing exclusively on high damage awards. This is problematic for several reasons. A lawyer’s claim that he obtained a $1 million settlement is hardly accurate because it only tells part of the story. What if the value of the case, well handled, was $1.5 million? Even if a $1 million settlement was a good result in that one case, the selectivity of that information leaves the public without information about, for example, other cases the lawyer may have mishandled. Or the run-of-the-mill cases that the lawyer routinely settles for $5,000 to $10,000. Further, this kind of advertising invites unrealistic consumer expectations that relatively minor injuries will garner huge damage settlements. Not only does this mislead the public, it also sets the lawyer up for a lot of disappointed clients.
Objection! Completeness doctrine. Sometimes an advertisement suffers from not saying enough. A recent example is Matter of Anonymous, 775 N.E.2d 1094 (Ind. 2002), where a lawyer promoted bankruptcy services by stating without qualification: “Bankruptcy, but keep house & car.” The Court pointed out that this was true in some consumer bankruptcies, but not necessarily in all of them, so it was misleading. Rule 7.2(c)(2) (2005) requires more disclosure if limited information tends to create a misimpression.
Your advertising word is your bond. It is not uncommon for lawyers to invite members of the public to discuss their cases at a no-charge, initial consultation. What happens when a lawyer who so advertises charges the client for the initial consultation? A public reprimand might follow for engaging in misleading and deceptive advertising. See, Matter of Pacior, 770 N.E.2d 273 (Ind. 2002).
Conclusion. In Bates and its progeny, the U.S. Supreme Court approved of lawyer advertising as a constitutionally protected means of educating the public about legal services. Still, how lawyers go about publicizing their services requires careful attention to detail.