In the Matter of ANONYMOUS
Supreme Court of Indiana
775 N.E. 2d 1094 (Ind. 2002)
The respondent in this attorney disciplinary action has been
charged with placing a deceptive advertisement for his legal services. We today
find that the respondent's ad was deceptive under the Rules of Professional
Conduct for Attorneys at Law and that the appropriate discipline for the
misconduct is a private reprimand. For the education of the bar and the public,
we recount the facts and circumstances of this case.
In November of
1998, the respondent placed an advertisement in an Indianapolis newspaper in an
effort to solicit bankruptcy clients for his bankruptcy practice. The advertisement
stated, “Bankruptcy, but keep house & car.”
The respondent
and the Disciplinary Commission stipulate that in bankruptcy practice under
Chapters 7 and 13, the debtor has the right to retain possession of the
debtor's house and automobile if those obligations are reaffirmed during the
course of the bankruptcy proceedings. The debtor, however, must arrange to
bring the debts current; that is, pay all arrearages and continue making
payments on the debts after formal reaffirmation, unless otherwise agreed to by
the debtor and creditor. The debtor who has not reaffirmed these obligations
will be subject to foreclosure of these obligations and loss of secured assets,
including the debtor's house and car.
Indiana
Professional Conduct Rule 7.1(b) forbids a lawyer from using any form of
public communication containing a false, fraudulent, misleading, deceptive,
self-laudatory or unfair statement or claim. Indiana
Professional Conduct Rule 7.1(c)(2) describes a false, fraudulent,
misleading, deceptive, self-laudatory, or unfair statement or claim as one
which, inter alia, omits to state any material fact necessary to make
the statement, in light of all the circumstances, not misleading. Deceptive
representations include ones likely to cause an ordinary prudent person to
misunderstand or be deceived, or one which fails to contain reasonable warnings
or disclaimers necessary to make a representation or implication not deceptive.
Matter
of Huelskamp,
740 N.E.2d 846 (Ind.2000), quoting Prof.Cond.R. 7.1(c)(6). We find
that the advertisement omitted stating that a debtor in bankruptcy has only the
possibility of keeping his house and car, and that keeping such items through
bankruptcy is not guaranteed. Upon reading the respondent's ad, an ordinary*1095
prudent person, perhaps knowing nothing about the debt reaffirmation provisions
of Chapters 7 and 13, would likely believe that during and after bankruptcy
proceedings his house and car would be secure in his possession, no matter
what.
Finding a
violation of Prof.Cond.R. 7.1(b) requires no proof that any client or potential
client was in fact deceived. It is enough that a public communication risks
deceiving the public. The respondent's advertisement violated Ind.Professional
Conduct R. 7.1(b).
In mitigation,
the hearing officer found that the respondent did have several people review
the ad before he placed it in the newspaper. He had the ad changed promptly
once the Commission notified him of its concerns.
In light of
these considerations, we find that the respondent should be privately reprimanded
for his misconduct.