Kentucky and Indiana, which state has the tougher laws on Advertising (Essay Sample)

Research Project #13
MEMORANDUM
TO: [name of professor]
FROM: [name of student]
RE: PLS 262 BASIC LEGAL ETHICS
DATE: [date submitted]
QUESTION(S) PRESENTED
In comparing and contrasting Kentucky and Indiana, which state has the tougher rules and regulations on lawyer advertising?
SHORT ANSWER(S)
In comparing and contrasting Kentucky and Indiana, Kentucky has slightly tougher rules and regulations on lawyer advertising than Indiana.
FACTS/INFORMATION
The rules and regulations that govern lawyer conduct on advertising in Kentucky are contained in the Kentucky Supreme Court Rules of Professional Conduct (SCR 3.130). SCR 3.130(7) is the chapter that is dedicated to ethical standards on advertising rules. On the other hand, the rules and regulations on lawyer advertising in Indiana are contained in Indiana Rules of Court, Rules of Professional Conduct section 7.1 to 7.5. There are both similarities and differences in the wording of the rules and regulations on attorney advertising in both states. The similarities and differences will be discussed in detail to determine which state has tougher rules and regulations on lawyer advertising than the other.
DISCUSSION
In Kentucky, the term advertise implies “to furnish any information or communication containing a lawyer's name or other identifying information, and an “advertisement" is any information containing a lawyer's name or other identifying information” [Ky. R. Sup. Ct. SCR 3.130(7.01)” Rule SCR 3.130(7.01) - Definitions, Ky. R. Sup. Ct. 3.130(7.01)]. However, there are some exception to this definition, which include a lawyer’s professional identity card, an announcement by a public service that states that the attorney or law firm will be the main sponsor of the event, but no additional information can be disclosed except the name, address, and telephone number, and signs that are placed on or near the law firm and the complex directory that identifies the law office. Similarly, the Indiana Rules of Professional Conduct defines advertising as “any manner of public communication partly or entirely intended or expected to promote the purchase or use of the professional services of a lawyer, law firm, or any employee of either involving the practice of law or law-related services” [Ind. R. Prof'l. Cond. 7.2” Rule 7.2 - Advertising, Ind. R. Prof'l. Cond. 7.2]. From the definition, any information that contains a lawyer’s name or any other identifying information apart from the above-listed exceptions is construed as advertisement in Kentucky. This makes it difficult for lawyers to publicly display their information without risking being penalized by the Commission on Advertising. In addition, it makes it almost impossible for an attorney practicing in Kentucky to make their services known to prospective clients without risking violating the rules. On the contrary, in Indiana, lawyers have the liberty to display their names publicly, provided such information is not intended to persuade the general public to purchase or procure legal services from the lawyer or the law firm. A careful examination of the wording of advertising reveals that the rules in Indiana are almost similar to those in Kentucky since the disclaimer is that any public display of information with the full or partial intention or expectation to increase sales of the legal services of the lawyer or the law firm. The motivation behind any public display of identifying information is to create a conscious or unconscious awareness of the existence of the lawyer or the law firm in the minds of consumers. The underlying concept is to make them remember the lawyer or the law firm in the event a need arises where they require legal representation or advisory. The result is to attract more business to the lawyer or the law company, which will boost its sales revenue and increase market share. However, lawyers in Indiana can display their names and other identifying information publicly and argue in court that the intention was never to promote purchase of their services but that they were creating public awareness if any individual wished to approach them for any personal or public interest matter. A keen look at the definition of the word “advertise” by both states clearly shows that Kentucky has stricter rules on lawyer advertising than Indiana.
Another similarity in the rules and regulations on lawyer advertising in both states is the wording about payment of referral services. The Indiana rules state that “a lawyer shall not give anything of value to a person for recommending or advertising the lawyer's services” [Ind. R. Prof'l. Cond. 7.2” Rule 7.2 - Advertising, Ind. R. Prof'l. Cond. 7.2b]. The exceptions to this rule are that the attorney may pay any amount that is deemed to be appropriate for advertising under the set rules. In addition, the concerned lawyer may pay the prescribed fees of charitable organizations, legal service groups, or referral service that is recognized under law. Moreover, the attorney may pay for law practice as outlined in Rule 1.17. Finally, the lawyer may direct clients to other attorneys or consultants who have a pre-existing agreement with the lawyer or law firm provided such agreement is not in contravention of the advertising rules, is not exclusive between the parties, and that the client is made aware of such an existing arrangement. The text of Kentucky rules on advertising are exactly the same as those of Indiana, that is, “a lawyer shall not give anything of value to a non-lawyer for recommending the lawyer's services” [Ky. R. Sup. Ct. SCR 3.130(7.20” Rule SCR 3.130(7.20) - Advertising, Ky. R. Sup. Ct. 3.130(7.20)]. The exception to this rule are also the same listed above in the Indiana rules. There is a convergence of ideas and legal opinion that lawyers in both Kentucky and Indiana should not pay anything of monetary or construed value to any person who refers another person to them or their law offices. This rule is designed to discourage unscrupulous attorneys from circumventing the set rules on advertising by offering exponential rewards to any member of the public who recommends their services to their friends and relatives. The motive behind such a payment is to encourage the referrers to bring more customers and also to silently let those referred to them know that they will accrue similar benefits. Therefore, the rules on paying a referrer are similar in both Kentucky and Indiana states.
The rules on advertising in Indiana obligates any marketing campaign to include at least one name of an attorney or law firm in charge of the disseminated content [Rule 7.2 - Advertising, Ind. R. Prof'l. Cond. 7.2]. Kentucky has a similar requirement, [Rule SCR 3.130(7.20) - Advertising, Ky. R. Sup. Ct. 3.130(7.20)], and the wording is the same. However, Indiana requires that lawyers should be in possession of the copy or recording of the advertising content for a span of six years after the date of distribution for public consumption. No such requirement is imposed by the Kentucky rules on lawyer advertising. Maintaining a record for six years in its original form might be a toll order since unforeseen circumstances such as devastating natural disasters or destructive human activity might occur during that period altering or destroying the copy or recording either partially or entirely. Lawyers in Kentucky are required to be in possession of advertising content for only two years from the period of dissemination. However, if a disciplinary action or suit is instituted against the lawyer or the law firm before the Court, Inquiry Commission, or Board of Governors and is still pending, the attorney is required to keep the recording or copy of the advertisement until the case is heard and determined [Rule SCR 3.130(7.20) - Advertising, Ky. R. Sup. Ct. 3.130(7.20) (6)]. This makes the rules in Indiana slightly tougher than those in Kentucky based on this particular requirement of keeping the content of the advertising for six years as opposed to two years in Kentucky.
In Kentucky, the rules state that it is mandatory for the attorney whose name or image is contained in any advertising campaign to personally undertake the legal services thereof advertised unless there is a clear disclosure to the public that the legal services might be undertaken by another equally qualified lawyer from the law office. In addition, in the event that the lawyer whose image or name appears in the advertisement is not qualified or licensed to practice the legal service in Kentucky, such information should be clearly stated in the advertisement. Moreover, in case the attorney advertises legal services with the sole aim of referring clients to other law firms or lawyers, she/he needs to make that information public in the advertisement in no uncertain terms [Rule SCR 3.130(7.20) - Advertising, Ky. R. Sup. Ct. 3.130(7.20)(5)]. On the contrary, Indiana rules are silent as to whether the attorney whose image or name appears in the advertisement should disclose if they will personally represent the clients or that other lawyers will be responsible for rendering the advertised legal services. In addition, the rules are silent on whether the advertising lawyer should disclose whether they are permitted to practice in Indiana or not. Based on this rule alone, Kentucky has tougher rules and regulations on lawyer advertising.
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