ATTORNEY FOR THE RESPONDENTS ATTORNEYS FOR THE INDIANA SUPREME COURT
Kevin P. McGoff DISCIPLINARY COMMISSION
Tammy J. Meyer Donald R. Lundberg, Executive Secretary
John C. Trimble Charles M. Kidd, Staff Attorney
Indianapolis, Indiana
______________________________________________________________________________
In the
FILED
0B
Indiana Supreme Court
1B
Sep 04 2008, 2:33 pm
_________________________________
CLERK
of the supreme court,
No. 49S00-0402-DI-82 court of appeals and
tax court
IN THE MATTER OF:
SCOTT A. BENKIE,
Respondent.
_________________________________
No. 49S00-0402-DI-83
IN THE MATTER OF:
DOUGLAS A. CRAWFORD,
Respondent.
_________________________________
Attorney Discipline Action
Hon. Karen M. Love, Hearing Officer
_________________________________
September 4, 2008
Per Curiam.
This matter is before the Court on the report of the hearing officer appointed by this
Court to hear evidence on the Indiana Supreme Court Disciplinary Commission's "Verified Com-
plaint for Disciplinary Action" in each of these cases and the post-hearing pleadings of the
parties. We find that Respondents, Scott A. Benkie and Douglas A. Crawford, engaged in attor-
ney misconduct in their advertisements for their legal services.
Scott A. Benkie’s and Douglas A. Crawford’s admission to this state's bar in 1985 and
1986, respectively, subjects them to this Court's disciplinary jurisdiction. See IND. CONST. art. 7,
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§ 4. For their misconduct, we find that Respondents should receive a public reprimand.
Background
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The case was submitted to the hearing officer on stipulated facts and exhibits.
Respondents practice law as partners in the firm of Benkie & Crawford and used brochures to
solicit clients for the firm. The two brochures at issue in this proceeding are "When You Need a
Lawyer" and "We Work for You."
In "When You Need a Lawyer," which first appeared in 1996, Respondents represented
that the firm has a "commitment to obtaining the best possible settlement for you and your
family." In "We Work for You," which first appeared in 2001, Respondents describe several
prior successful representations including the area of law, client names, amounts recovered, and
other facts. "Legal Advertisement" appeared on each page of both brochures through 2004, at
which time it was replaced with "Advertising Material."
Respondents filed both brochures with the Indiana Supreme Court Disciplinary
Commission ("Commission") as required by Professional Conduct Rule 7.3(c). "When You
Need a Lawyer" was sent to the Commission in 1996, with a letter stating it was being submitted
for approval. The Commission responded with a letter stating that its does not render advisory
opinions on the propriety of targeted solicitation letters. Respondents filed "We Work for You"
with the Commission in 2001. Respondents filed revised versions of "When You Need a
Lawyer" in 2003 and 2004. The Commission sometimes sends letters to lawyers advising them
that the language of their submissions needs to be changed to comply with the Professional
Conduct Rules. Respondents did not receive any such advisement.
The Commission charged Respondents with violating these Indiana Professional Conduct
Rules that prohibit the following conduct: 1
1
The numbering of some of these rules, but not their substance, has been changed since the inception of
this case. The current rule numbers are used in this opinion.
2
7.2(b): Use of a public communication containing a false, fraudulent, misleading,
deceptive, self-laudatory or unfair statement or claim.
7.2(c)(3): Use of a statement intended or likely to create an unjustified expectation.
7.2(d)(2): Use of a public communication that contains statistical data or other
information based on past performance or prediction of future success.
7.3(c): Solicitation of professional employment without the words "Advertising
Material."
Discussion
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"Commitment to obtaining the best possible settlement." Respondents argue it is no
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violation to make a commitment to clients to obtain the best possible settlement for them. We
agree with Respondents on this point. It is improper for an attorney to say he or she can obtain
the best possible settlement for clients. See Matter of Wamsley, 725 N.E.2d 75, 77 (Ind. 2000).
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Such a statement promises a result and creates an unjustified expectation on the part of
prospective clients. Respondents, by contrast, promised prospective clients only a commitment
to their cases, which clients have every right to expect. We therefore find for Respondents on
this charge.
Descriptions of prior representations. Respondents clearly used a public communication
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that contained information based on past performance, which is prohibited by Rule 7.2(d)(2).
Respondents assert that they used quotations from newspaper articles and cited the name of the
paper and dates of the articles. Thus, they argue, the information was already before the public
and was objectively verifiable. The rule, however, makes no exception for such use. Moreover,
the selective use and editing of such articles, which may not necessarily be accurate, could be
misleading and lead to unjustified expectations by potential clients.
Respondents contend that a staff attorney for the Commission informally approved a
solicitation letter submitted by a law firm that contained references to past successes and
attached a favorable newspaper article. The propriety of that letter is not before this Court.
Suffice it to say, however, that the fact that a staff attorney may have informally approved
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objectionable material in one case does not mean rule violations by other attorneys must be
excused.
"Legal Advertisement."
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Advertisement" rather than "Advertising Material" was a rule violation, but they contend that it
was merely technical and inadvertent. Although the violation was inadvertent, we do not
consider it to be a mere technicality. Use of the phrase "Legal Advertisement" may create the
impression that the Commission or some other body had reviewed it and found it to be "legal."
Lack of warning or assistance from the Commission. The Rules of Professional Conduct
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provide:
Every written, recorded, or electronic communication from a lawyer
soliciting professional employment from a prospective client potentially in need
of legal services in a particular matter, and with whom the lawyer has no family
or prior professional relationship, shall include the words "Advertising Material" .
. . . A copy of each such communication shall be filed with the Indiana
Supreme Court Disciplinary Commission at or prior to its dissemination to the
prospective client. . . . Each time any such communication is changed or altered,
a copy of the new or modified communication shall be filed with the Disciplinary
Commission at or prior to the time of its mailing or distribution. . . .
Prof. Cond. R. 7.3(c) (emphasis added).
Although this rule requires filing of advertising materials with the Commission, it does
not require the Commission to review such materials for violations. Indeed, reviewing every
such letter, brochure, and other communication from every Indiana lawyer would be an
impossible burden. Nevertheless, the filing requirement serves several functions. It preserves a
record of lawyer advertising material in case a dispute arises. Perhaps most importantly, such
filing with the Commission encourages self-policing by lawyers. The filing requirement also
makes it possible for the Commission staff to spot at least some advertising materials that run
afoul of the rules and to warn those lawyers of the need to correct the violations. We do not wish
to discourage this service to the bar and to the public, even though it cannot extend to every
lawyer communication filed with the Commission.
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We conclude that Respondents' lack of warning that their advertising material appeared
to contain rule violations did not deny them due process of law or otherwise prejudice them.
Still, the fact that Respondents sought advice from the Commission regarding their advertising
material mitigates the degree of their culpability.
Sanction. Respondents have no prior history of disciplinary action. The hearing officer
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and the Commission recommend a public reprimand. We conclude this is an appropriate
sanction under the circumstances of this case.
Conclusion
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The Court concludes that Respondents' use of the phrase "commitment to obtaining the
best possible settlement" did not violate the Rules of Professional Conduct and finds for
Respondents on this charge. The Court, however, concludes the Commission has demonstrated
by clear and convincing evidence that Respondents committed the remaining violations as
charged.
For Respondents' professional misconduct, the Court imposes a public reprimand.
The costs of this proceeding are assessed against Respondents. The hearing officer
appointed in this case is discharged.
The Clerk of this Court is directed to give notice of this opinion to the hearing officer, to
the parties or their respective attorneys, and to all other entities entitled to notice under
Admission and Discipline Rule 23(3)(d).
Shepard, C.J., and Dickson, and Boehm, JJ., concur.
Sullivan and Rucker, JJ., concur except that they would find no violation of Indiana Professional
Conduct Rule 7.2(d)(2).
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