

|FOR THE RESPONDENTS             |FOR THE INDIANA SUPREME COURT          |
|                                |DISCIPINARY COMMISSION                 |
|                                |                                       |
|Ronald E. Elberger              |Donald R. Lundberg, Executive Secretary|
|Bose, McKinney & Evans LLP      |Charles M. Kidd, Staff Attorney        |
|2700 First Indiana Plaza        |115 West Washington Street             |
|135 North Pennsylvania Street   |Suite 1165                             |
|Indianapolis, IN 46204          |Indianapolis, IN  46204                |



                                   IN THE

                          SUPREME COURT OF INDIANA

IN THE MATTER OF             )
                                  )     CASE NO. 49S00-0006-DI-368
JAMES R. KELLER              )

IN THE MATTER OF             )
                                  )     CASE NO. 98S00-0006-DI-369
S. JACK KELLER               )



                             DISCIPLINARY ACTION




                                August 8, 2003


Per Curiam.



      By authorizing  advertisements  for  their  law  firm  that  suggested
insurance  companies  would  settle  claims  merely   because   their   firm
represented  the  claimants,  the  respondents   violated   the   Rules   of
Professional  Conduct  for  Attorneys  at  Law.   For   this   and   another
advertising  violation,  we  find  today  that  the  respondents  should  be
publicly reprimanded.
      The  Indiana  Supreme  Court  Disciplinary  Commission   charged   the
respondents, James R. Keller and S. Jack  Keller,  with  violations  of  the
Rules of Professional Conduct as a result of television advertisements  they
authorized during 1999 and 2000 for their  law  firm,  Keller  &  Keller.  A
hearing officer conducted an evidentiary hearing on the  charges,  concluded
the Commission failed to carry its burden of  proof,  and  recommended  this
matter be dismissed. The Disciplinary Commission  filed  a  timely  petition
for review, challenging the hearing officer’s conclusions of law. Where  the
hearing officer’s report is challenged, we review the  record  presented  de
novo. Matter of Wilder, 764 N.E.2d 617 (Ind. 2002). Final  determination  as
to misconduct and sanction rests  with  this  Court.  Matter  of  Lamb,  686
N.E.2d 113 (Ind. 1997); Matter of Gerde, 634 N.E.2d 494 (Ind.  1994).    Our
jurisdiction over  the  respondents  arises  from  their  admission  to  the
Indiana bar in February 1997.
                      I. The Television Advertisements
      The  respondents  purchased  four  television  advertisements  from  a
national  marketing  firm.  Each  advertisement  consists  of   a   standard
presentation customized to name the law firm purchasing  the  advertisement.
The  first  advertisement,  known  as  the  “Strategy  Session,”  depicts  a
conference room where actors portraying insurance adjusters  are  discussing
a claim.  An older man, the “senior  adjuster,”  asks  a  younger  man,  the
“junior adjuster,” how the claim should be  handled.   The  junior  adjuster
describes the claim as “…a large claim, serious auto accident” and  suggests
they try to deny and delay to see if the claimant will “crack.”  The  senior
adjuster then asks which lawyer represents the victim, whereupon the  junior
adjuster responds: “Keller & Keller.”   A metallic sound effect follows  and
the senior adjuster, now looking concerned, states: “Keller & Keller?  Let’s
settle this one.”  At this point in the advertisement, actor  Robert  Vaughn
appears on screen and advises viewers, “[T]he insurance companies  know  the
name Keller & Keller.”  He invites individuals who have been injured  in  an
auto accident to tell  the  insurance  companies  they  “mean  business”  by
calling  Keller  &  Keller.   Vaughn  provides  the  respondents’  telephone
number, which also appears at the bottom of the screen.
      The second  advertisement  is  a  shorter  version  of  the  “Strategy
Session,” known as the “Settle-10” spot.   This  advertisement  opens  in  a
conference  room  with  the  senior  adjuster   asking   which   lawyer   is
representing the victim  and  the  junior  adjuster  responding:  “Keller  &
Keller.” As with the  “Strategy  Session”  spot,  a  metallic  sound  effect
follows and the  obviously  concerned  senior  adjuster  states:  “Keller  &
Keller? Let’s settle this one.”  The respondents’ telephone  number  appears
at the bottom of the screen.
      The third advertisement is a still shorter version  of  the  “Strategy
Session,” known as the “Settle-5” spot.  It begins  with  a  metallic  sound
effect and ends with a troubled looking senior adjuster stating:  “Keller  &
Keller? Let’s settle this one.”
      The parties  agree  that  these  three  advertisements  are  fictional
dramatizations and not a re-enactment of any actual strategy  session  known
by the respondents to have actually occurred.
      The final advertisement, known as the “Victim’s Rights” spot, features
Vaughn introducing himself and stating:
           If you’ve been injured in an auto accident, you don’t need talk.
           You need to take back what’s been taken away from you. Tell  the
           insurance companies you mean business. Tell them  you’ve  called
           Keller & Keller … They go after your rights piece  by  piece  by
           piece until you get every dollar you deserve.


      The advertisement  ends  with  a  metallic  sound  effect  and  Vaughn
suggesting that viewers call “right now.”
                     II. Arguments Presented by Parties
      The hearing officer appointed to hear this matter concluded  that  the
Disciplinary Commission failed to meet its burden  of  proving  the  alleged
violations  by  clear  and  convincing  evidence.[1]   The  Commission   has
petitioned for review of the hearing officer’s findings,  arguing  that  the
hearing officer erred in failing to find that:
           1.  the  respondents’  television   advertisements   contain   a
              statement, opinion, representation or  implication  regarding
              the quality of respondents’ legal services  in  violation  of
              Prof.Cond.R. 7.1(d)(4), and,

           2. the respondents’ television advertisements contain an implied
              endorsement of the respondents’ law practice in violation  of
              Prof.Cond.R. 7.1(d)(3).


      The  respondents’  position  concerning  the  review  of  this  matter
includes two arguments.  First,  in  Respondents’  Petition  for  Review  of
Hearing Officer’s Ruling which Excluded Expert  Testimony,  they  argue  the
hearing officer improperly excluded expert testimony “… with regard  to  the
interpretation,  application   and   constitutionality   of   [Prof.Cond.R.]
7.1(d)(3) and 7.1(d)(4).”   We deny the  respondents’  petition  and  uphold
the hearing officer’s exclusion of this testimony.  The Constitution of  the
State of Indiana vests this Court with  exclusive  jurisdiction  in  matters
involving the admission and discipline of attorneys. Ind.CONST.,  art.  VII,
Section 4; Matter of Kesler, 272 Ind. 161, 163, 397 N.E.2d 574, 575  (1979).
 The testimony of expert witnesses on the subject of the practice of law  is
not proper evidence, as it is the province of this Court to  determine  what
the practice of law is.  See Matter of Perrello, 386 N.E.2d 174,  179  (Ind.
1979).
      The respondents also filed a brief in opposition to the Commission’s
petition for review, therein arguing that their advertisements are
protected by the commercial speech doctrine recognized by the federal
courts under the First Amendment to the United States Constitution, and are
also protected by Article I, Section 9 of the Indiana Constitution.   We
will address these issues infra.
      III. Prof.Cond.R. 7.1(d)(4): Improper Representation or Implication
Regarding
                       the Quality of Legal Services.


      Indiana Professional Conduct Rule 7.1(d) provides:
           A lawyer shall  not,  on  behalf  of  himself,  his  partner  or
           associate, or any other lawyer affiliated with him or his  firm,
           use  or  participate  in  the  use  of  any   form   of   public
           communication which:


                                     ***


           (4) contains a statement or opinion as to  the  quality  of  the
           services or contains a representation or  implication  regarding
           the quality of legal services; …


      The evidence presented clearly and convincingly establishes  that  the
respondents’  advertisements  contain  a   representation   or   implication
regarding the quality of their  legal  services.   Though  the  respondents’
advertisements contain a  brief  printed  disclaimer,  “No  specific  result
implied,”  the  advertisements  imply  that  clients  represented   by   the
respondents’ law firm will achieve favorable results based solely  upon  the
respondents’  reputation  with  insurance   companies.    The   respondents’
advertisements  create  an  impression  that  the  claims  they  handle  are
settled, not because of the specific facts or  legal  circumstances  of  the
claims, but merely by the mention of the name of the  respondents’  firm  to
insurance companies.
      This Court has found that similar advertisements violated Prof.Cond.R.
7.1(d)(4).  In Matter of Anonymous, 689 N.E.2d 442 (Ind.  1997),  where  the
attorney’s advertisement claimed  his  law  firm  was  a  “premier  personal
injury law firm” with “30 years trial experience and a  support  network  to
rival that of a larger city firm” and “the track record  and  resources  you
need to win a settlement,” we noted the danger underlying broad  unsupported
claims:
           A  person  unfamiliar  with  personal  injury  litigation  might
           understand the advertisement to promise that any claim  or  case
           handled  by  the  respondents  would  result  in   a   favorable
           settlement. Anonymous at 443.

Here, the respondents’ advertisements suggest  the  very  sort  of  improper
implication of which we cautioned in Anonymous.
      Similarly, in Matter of Wamsley, 725 N.E.2d 75 (Ind. 2000) we found  a
violation  of   Prof.Cond.R.   7.1(d)(4)   where   an   attorney’s   printed
advertisement stated, “… my reputation, experience and  integrity  …  result
in most of our cases being settled …”  Like the advertisements in  Anonymous
and Wamsley, the respondents’  advertisements  suggest  insurance  companies
will be inclined to settle claims handled by their firm.[2]
      The intent and purpose behind our Rules of Professional Conduct is  to
create a high  standard  for  communicating  with  the  public  about  legal
services. The Preamble to the Rules of Professional Conduct provides:
           The legal profession’s relative autonomy carries with it special
           responsibilities  of  self-government.  The  profession  has   a
           responsibility to assure that its regulations are  conceived  in
           the public interest and not in furtherance of parochial or self-
           interested concerns of the bar. Indiana  Rules  of  Court,  West
           Publishing (2003), p. 336.


      The United States Supreme Court recognized this same concept  when  it
stated:
           [B]ecause  the  public  lacks  sophistication  concerning  legal
           services, misstatements  that  might  be  overlooked  or  deemed
           unimportant  in   other   advertising   may   be   found   quite
           inappropriate in  legal  advertising.  Bates  v.  State  Bar  of
           Arizona, 433 U.S. 350, 383, 97 S.Ct. 2691, 2709 (1977).

  Accordingly, we  find  respondents’  advertisements  violate  Prof.Cond.R.
7.1(d)(4).[3]
                           IV. Respondents’ Claims
      The respondents contend that their advertisements are protected by the
commercial speech doctrine recognized by the federal courts under the  First
Amendment to the United States  Constitution,  and  are  also  protected  by
Article I, Section 9 of the Indiana Constitution.  We reject both  of  these
arguments.
      “There can be  no  constitutional  objection  to  the  suppression  of
commercial messages that do not accurately inform the  public  about  lawful
activity.  The government may ban forms  of  communication  more  likely  to
deceive the public than to inform it.”  Central Hudson Gas & Elec. Corp.  v.
Public Serv. Comm’n of N.Y.,  447  U.S.  557,  563,  100  S.Ct.  2343,  2350
(1980).  Because we have  found  the  respondents’  advertisements  unfairly
imply a particular favorable result in cases involving insurance  companies,
the advertisements are more likely to deceive the public than inform it  and
thus are  not  protected  under  the  First  Amendment’s  commercial  speech
doctrine.
      Likewise, even if Article I, Section 9 of the Indiana  Constitution[4]
is viewed as “… more comprehensive than the first amendment,”[5]  it is  not
so comprehensive as to permit deceptive and misleading communication in  the
context before this Court.  While the right to speak clause  is  broad,  the
responsibility clause ensures:


           … despite the presence of the right to speak clause,  the  state
           retains its delegated authority to promote the peace, safety and
           well-being of Hoosiers by punishing  expression  that  could  be
           thought to undermine  those  ends.  Whittington  v.  State,  669
           N.E.2d 1363 (Ind. 1996) (fn 6).

We hold that the regulation of attorney advertising is consistent  with  the
responsibility clause of  Article  I,  Section  9.   “The  selection  of  an
attorney by a lay person must  result  from  an  informed  choice,  free  of
influences or persuasions.” Matter of Guerrero, 482 N.E.2d 1139, 1140  (Ind.
1985).  The advertisements put forth by the respondents do  not  promote  an
informed choice, but instead tend to mislead the  public.   Accordingly,  we
find the respondent’s state constitutional argument unpersuasive.
                   V. Prof.Cond.R. 7.1(d)(3):  Endorsement
      Indiana Professional Conduct Rule 7.1(d)(3) prohibits an attorney from
using any form of public communication which contains an  endorsement  of  a
lawyer.  The  parties  stipulated  that  none  of  the  four  advertisements
contain  an  express  endorsement  of  the  respondents.   The  stipulation,
however, does not address the issue of  an  implied  endorsement.   We  find
that the “Victim’s Rights” advertisement contains an implied endorsement  of
the respondents.
      We have not had the opportunity to define  “endorsement”  as  used  in
Prof.Cond.R. 7.1(d)(3).  Accordingly, as  with  statutory  construction,  we
give undefined words their plain, ordinary, and usual  meaning,  unless  the
construction is plainly repugnant to the intent or the context of  the  rule
under consideration.  Hinojosa v. State, 781 N.E.2d 677,  680  (Ind.  2003).
The hearing officer found that:
           “Endorse” means “to give  approval  to;  support;  sanction  [to
           endorse a candidate]” or “to state, as in an advertisement, that
           one approves of (a product, service, etc.), often in return  for
           a fee” while  an  “endorsement”  is  “a  statement  endorsing  a
           person, product, etc., as in an  advertisement.”  Webster’s  New
           World Dictionary, p.  449  (3rd  College  e.  1994)  (third  and
           second, subpart c  definitions).  “Endorsement”  also  has  been
           defined as “[a]pprobation; sanction; support: sought the union’s
           endorsement.” The American Heritage College Dictionary,  p.  454
           (Houghton  Mifflin  3rd  ed.  1993)  (third  definition)  (Joint
           Exhibit  24);  see  also   Webster’s   New   Twentieth   Century
           Dictionary, p. 600 (Simon and Schuster, 2d., 1983) (“endorsement
           … 4. approval; sanction.”).


      In  the  advertisements,  Vaughn  tells  viewers,   “[t]he   insurance
companies know the name Keller & Keller,” “[t]ell  the  insurance  companies
you mean business. Tell them you’ve called Keller & Keller…,” and,  finally,
“[t]hey go after your rights piece by piece by piece  until  you  get  every
dollar you deserve.”  The purpose of these statements is  to  reinforce  the
notion established in the “Strategy Session”  advertisement  that  the  name
Keller & Keller alone achieves results. In  advising  that  the  respondents
“go after your rights piece by piece by piece” until every  possible  dollar
is recovered,  Vaughn  clearly  is  supporting  the  respondents  and  their
ability to secure a positive result for the  client,  and  even  implies  by
these statements that, based on past successes,  this  is  the  respondents’
usual outcome.   Vaughn clearly implies that Keller  &  Keller  can  provide
the services that the viewers need.  He is not just encouraging  the  public
to seek legal assistance, he is endorsing their contact  with  the  firm  of
Keller & Keller  because  of  their  reputation.   There  is  a  distinction
between simply suggesting that viewers call Keller & Keller, and  suggesting
that viewers who call Keller &  Keller  will  obtain  a  favorable  outcome.
Because of Vaughn’s endorsement of the respondent’s services,  we  find  the
respondents violated Prof.Cond.R. 7.1(d)(3).
                                VI. Sanction
      Having found  the  respondents  guilty  of  misconduct,  we  must  now
determine the appropriate sanction. The  hearing  officer  noted  the  great
lengths that the  respondents  went  to  research  the  propriety  of  their
advertisements.    Nonetheless,   the   respondents’   advertisements   were
defective.   As  in  Matter  of  Wamsley,  the  respondents’  advertisements
divest the public of the opportunity to make a decision on whether  to  hire
them  based  on  facts  about  the  respondents  and  their  qualifications.
Accordingly,  for  the  protection  of  the  public,  we   find   that   the
respondents’ faulty advertisements warrant  the  same  sanction  imposed  in
Wamsley,  that being a public reprimand.
      Accordingly, the respondents, James R. Keller and S. Jack Keller,  are
hereby reprimanded and admonished for the misconduct set forth herein.
      The Clerk of this Court is directed to provide notice of this order in
accordance with Admis.Disc.R. 23(3)(d), to the hearing officer, and  to  the
clerk of the United States Court of Appeals for  the  Seventh  Circuit,  the
clerk of each of the United States District Courts in this  state,  and  the
clerks of the United States Bankruptcy Courts in this state.
      Costs of this proceeding are assessed equally against the respondents.


      DICKSON, SULLIVAN, BOEHM, and RUCKER, JJ., concur.
      SHEPARD, C.J., not participating.
-----------------------
[1]  Matter of Siegel, 708 N.E.2d 869 (Ind. 1999)
      [2] The advertising campaign  in  question  here  has  also  been  the
subject  of  litigation  in  North  Carolina.  In  Farrin  v.  Thigpen,  173
F.Supp.2d 427 (M.D.N.C. 2001), the federal district  court  found  that  the
“Strategy Session” spot created  “…  an  unjustified  expectation  that  the
lawyers advertised can obtain settlements based solely on  their  reputation
and the insurance industry fear or reluctance to try a case  against  them.”
Farrin at 440.

      [3]As part of his finding that the  Commission  failed  to  carry  its
burden of proof, the hearing officer found the Commission failed to  produce
any  evidence  the   public   sustained   actual   harm   because   of   the
advertisements. We find, however, that such a showing by the Commission  was
not necessary in order to find a  violation  of  Prof.Cond.R.  7.1(d).   The
risk of deceiving the public is  sufficient  to  establish  a  violation  of
Prof.Cond.R. 7.1(d).  See, e.g., Matter of Anonymous, 689 N.E.2d  442  (Ind.
1997) (advertisements that a person might misunderstand to promise that  any
claim handled by the attorney would result in a  favorable  settlement  were
improper); Matter of Anonymous, 775 N.E.2d 1094, 1095 (Ind.  2002)  (holding
no requirement of actual deception, but only risk of deception,  to  support
Prof.Cond.R. 7.1(b) violation).

[4] Article I, Section 9 provides:

No law shall be passed, restraining the  free  interchange  of  thought  and
opinion, or restricting the right to speak, write, or print, freely, on  any
subject whatever: but for  abuse  of  that  right,  every  person  shall  be
responsible.

[5] Randall T. Shepard, Second Wind for the Indiana Bill of Rights, 22
IND.L.REV. 575, 581 n. 39 (1989).

