IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) CASE NO. 49S00-0103-DI-174
ANONYMOUS )
DISCIPLINARY ACTION
October 8, 2002
Per Curiam
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 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.
Costs of this proceeding are assessed against the respondent.