by: Arend J. Abel, Attorney
Any lawyer who pays attention to legal ethics issues in Indiana by now has heard of In re Anonymous. 6 N.E.3d 903 (2014). The most widely talked about aspect of the case was the fact that the disciplined lawyer was somehow caught off-guard because he sought out legal advice and other opinions and believed he was in compliance with the rules. There was a hue and cry that enforcement against the lawyer was unfair or even a violation of due process, either because the client testimonials that the Court held violated the rules were on a website the lawyer couldn’t control, or because the rules were unclear on what amounts to a violation.
But a little-noticed aspect of the case is one that could (and apparently does) continue to trip lawyers up, even though it’s in the very first sentence of the opinion:
We find that Respondent engaged in attorney misconduct by making false or misleading communications regarding legal services and by failing to include an office address in a public communication.
(emphasis added). That’s right, the lawyer was disciplined, in part at least, because the lawyer didn’t include an office address in the lawyer’s advertising. Read that again, go look at your advertising, and then come back to the rest of this article.
That aspect of the opinion did not interpret some ethics rule that was previously unclear. The requirement is right there in the rules:
Rule 7.2. Advertising
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(c) Any communication subject to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content. The lawyer or law firm responsible for the content of any communication subject to this rule shall keep a copy or recording of each such communication for six years after its dissemination.
Nothing unclear about that. And it’s been part of the Indiana Rules of Professional Conduct for more than three and a half years.
But four months after the Anonymous decision, and three and a half years after the rule change, lawyers apparently continue to be unaware of the address requirement. The June 2014 issue of Res Gestae, the official publication of the Indiana State Bar Association contained an article thoroughly analyzing Anonymous, even mentioning the address requirement. But by my count, there were at least sixteen attorney advertisements in the issue that didn’t comply with the address requirement.
As I sat writing this article, there were non-complying ads in the Indiana Lawyer’s paper edition, including one by a very prominent Indianapolis law firm. There was a non-complying ad from another very prominent Indianapolis law firm on the Indiana Lawyer’s home page. The Indiana Lawyer’s daily electronic newsletter, which, as the name implies, is published every day, contained another non-complying ad by a third prominent Indianapolis firm. In fact, it’s an understatement to call the three “prominent Indianapolis law firms.” Between them, they have offices in 19 cities, in 10 States and the District of Columbia.
I don’t know how many attorney billboards I’ve driven past that don’t comply with the rule, but it’s most of them. I’ve been told that the billboard companies discourage the use of an address. Then again, it’s not their law licenses that are at stake.
No doubt there are subtle questions on how to comply with this requirement in some circumstances, including figuring out what constitutes “Advertising” (spoiler, it’s any form of public communication lawyers and law firms use to try to get business), and how to comply with the rule in some “new media” situations. There may even be First Amendment Issues in how the rule applies in some circumstances.
But lawyers aren’t even getting the basics right for good old-fashioned print ads. If you didn’t stop to review your advertising when I told you to a few paragraphs ago, you might want to do so now. See any problems? Contact us now for a free consultation.