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Wednesday, May 07, 2014

Ind. Decisions - Reactions to recent Indiana Supreme Court disciplinary opinion

In this ILB post from April 16th, the ILB quoted criticism of a recent Supreme Court disciplinary opinion that was posted by Carolyn Elefant, the DC attorney and well-known writer of myShingle.com. The per curiam opinion, filed April 11th, was In the Matter of: Anonymous, summarized here by the ILB.

Today David Stafford of The Indiana Lawyer has a lengthy, must-read story headed "‘Disconcerting’ discipline case dings veteran lawyer over third-party website." A few quotes:

A closer examination of the record suggests Indiana Supreme Court Disciplinary Commission attorneys went too far and employed tactics in prosecuting the case against [Crown Point attorney Tim] Kelly that may have violated Rules of Professional Conduct. * * *

The Supreme Court disciplinary order makes no mention of problems with the commission’s investigation. But Lake Superior Magistrate Michael Pagano, who presided as hearing officer, concluded his sometimes-blistering report to the court by writing that he initially believed the commission “overreached.”

“I am of the firm belief that my initial evaluation was, and remains, correct,” Pagano wrote.

Disciplinary Commission Executive Director G. Michael Witte referred inquiries about Kelly’s case to staff attorney Fredrick Rice, who prosecuted the matter. The commission alleged five rule violations against Kelly but proved just two – violation of Rule 7.1 for false or misleading communications regarding services, and Rule 7.2(c), failing to include an office address in a public communication.

Rice urged the Supreme Court to clarify murkier aspects of rules, particularly as they relate to attorney responsibility for statements appearing on third-party lead-generating platforms such as Law Tigers.

“The commission firmly believes that a written opinion from this Court is needed to (serve) as guidance to all members of the Indiana Bar,” Rice summed up in response to Pagano’s findings.

So what’s the advice for attorneys who may use any of a growing number of lead-generating platforms or be affiliated with groups whose websites include testimonials? Might they face discipline for content on sites over which they have no control?

“It’s kind of a hard question to address because the court didn’t address it in the opinion,” Rice said. “With regard to giving lawyers some kind of guidance in the future, unfortunately, I think the court did not take that step.”

But Rice said the opinion makes clear that lawyers should consider themselves responsible for any affiliated Internet communication that appears to benefit them, even if they didn’t publish it themselves. * * *

Before signing with Law Tigers, Kelly sought an opinion from the Disciplinary Commission, which it declined to provide, according to the record. He also sought an opinion from the state bar and consulted with nationally recognized attorney Lynda Shely, outside ethics counsel to AAMIL and a longtime director of lawyer ethics for the State Bar of Arizona. * * *

“The commission was well aware of (Kelly’s) due diligence,” Pagano wrote. “In fact, following receipt of his submission, the commission sent (Kelly) a letter informing him it would not be pursuing charges against him. The commission, for reasons unclear, then reversed itself and proceeded with the instant matter.”

Posted by Marcia Oddi on May 7, 2014 08:24 AM
Posted to Indiana Courts