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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.