Thursday, April 17, 2014

Discipline of "Anonymous" Shows Misplaced Priorities of the Indiana Disciplinary Commission

Last week an Indiana disciplinary case was handed down that demonstrates once again the misplaced priorities of the Disciplinary Commission and its Executive Secretary Michael Witte.  The Indiana Supreme Court decision sets out the facts:
The American Association of Motorcycle Injury Lawyers, Inc. ("AAMIL") is a for-profit Arizona corporation that offers franchise opportunities involving AAMIL's registered trademarks, including "Law Tigers," and other proprietary marks, slogans, and logos
Michael Witte, Executive Secretary
Indiana Disciplinary Commission
(together "trademarks"). AAMIL's business model involves contracting with lawyers and law firms throughout the United States, and granting those lawyers and firms licenses for exclusive use of the Law Tigers name and other trademarks owned by AAMIL within certain geographic areas ("territory") to promote and market the services offered by AAMIL to the public. Under the terms of the license agreements, these "Licensee" lawyers and firms agree to engage in promoting and marketing the Law Tigers as a service to meet the needs of the motorcycle-riding public, including legal advice and/or representation in connection with claims involving the operation of motorcycles.

On March 15, 2010, Respondent and his firm entered into a license agreement with AAMIL to be an exclusive licensee in Indiana for a term of three years. The Law Tigers' toll-free telephone number service was established by AAMIL and operates under its authority. Under the terms of the license agreement, AAMIL was obligated to ensure that all calls to the Law Tigers toll-free telephone number seeking legal assistance from Respondent's territory were automatically routed directly to Respondent.

In addition, the public could contact Law Tigers through AAMIL's Law Tigers internet website. The website contained a wide variety of information for the motorcycle-riding public, including information about lawyers and firms that AAMIL identified as the Law Tigers source of legal services in the various geographic areas of the United States. The website offered a search function that identified Respondent and his firm as the exclusive Law Tigers source for legal services for his territory.

The Law Tigers website contained examples of previous results obtained by "Law Tigers Motorcycle Accident Lawyers," boasting "Exceptional Results: Settlements and Verdicts." A tab led to "Client Testimonials" from persons who claim to have utilized Law Tigers in seeking advice and/or representation regarding a motorcycle-related legal matter. Such testimonials included: "Law Tigers changed my life in a big way and my family received our fair share of justice." "Law Tigers went above and beyond! The settlement was more than expected!" "The legal services were fast and painless and the best experience I have ever had with lawyers and lawsuits." Although none of the settlements, verdicts, or testimonials related to Respondent, the website did not disclose that they did not relate to Respondent.

Respondent also maintained a separate website for his law firm, which could be accessed through a link from the Law Tigers website. The firm website included a statement that the firm was not permitted to include information about previous results from settlements and verdicts. However, a visitor to the Law Tigers website was not required to access the link to the firm website to be put in contact with Respondent and his firm.

Respondent distributed AAMIL-produced informational materials within his territory, including "promotional backers." The promotional backers contained a toll-free telephone number for the Law Tigers service, the Law Tigers website address, and the names of Respondent and his firm. However, the promotional backers did not contain Respondent's address.
The Commission threw the book at the attorney, lodging the charges with:
7.1: Making false or misleading communications regarding services, e.g., statistical data, information based on past performance, testimonials.

7.2(c): Failing to include an office address in a public communication.

7.3(d): Accepting referrals from an unqualified referral service.

7.3(e): Improperly giving something of value for a recommendation.

7.5(a)(4): Use of an improper trade name.
In the end, the Indiana Supreme Court in a 5-0 decision said the allegations lodged by the Commission only merited a private reprimand.  I'm not sure how you can do a "private" reprimand after the Commission had already made the matter public when it charged the Commission.
Catherine Nestrick, Chair
Indiana Disciplinary Commission

It is apparent from the case that the Disciplinary Commission devoted enormous resources to going after "Anonymous" for what at best is a petty violation.  (Of course, the attorney in response also undoubtedly spent tens of thousands of dollars trying to defend himself hiring one of the top disciplinary attorneys in the state.))  The Indiana Supreme Court should look beyond this case and investigate how much time and resources the Commission devoted to pursuing Anonymous.  At the same time Witte declares the Commission lacks the resources to properly investigate attorneys like William Conour who are causing real harm to the public by stealing money from trust funds, he is willing to devote substantial resources to go after attorneys for minor violations.  Witte's poor judgment in charging and prosecuting attorneys even merited an IBJ editorial.

Public resources are finite. When Executive Secretary Witte decides to use the limited resources of the Commission to go after attorneys for petty offenses, that means there are less resources to devote to going after attorneys who commit violations that greatly harm the public.  While Witte undoubtedly deserves the lion's share of the blame, the Disciplinary Commission members listed below who continue to sign off on Witte's poor prosecution decisions should also be held accountable:

Members

Catherine A. Nestrick, Chair
Berry Plastics Corporation
Evansville

 
William Anthony Walker, Vice Chair
Attorney at Law
Gary

 
Nancy L. Cross, Secretary
Cross, Pennamped, Woolsey & Glazier, P.C.
Carmel

 
Andrielle M. Metzel, Treasurer
Benesch, Friedlander, Coplan & Aronoff LLP
Indianapolis

 
Maureen Grinsfelder
Fort Wayne
 
Trent A. McCain
McCain & White, PC
Merrillville

 
R. Anthony Prather
Barnes & Thornburg LLP
Indianapolis

 
Leanna K. Weissmann
Attorney at Law
Lawrenceburg

 
Kirk White
Bloomington

 
Finally, I would note that, although the decision was only a private reprimand, the decision itself may have substantial consequences that have already merited criticism in an article entitled: "An Indiana Ethics Opinion That May Kill Legal Startups."

Thanks to Marcia Oddi, publisher of the Indiana Law Blog, for her fine work in bringing attention to these decisions and the articles that comment on them.

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