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 logosThe Commission threw the book at the attorney, lodging the charges with:
(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.
Michael Witte, Executive Secretary
Indiana Disciplinary Commission
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.
7.1: Making false or misleading communications regarding services, e.g., statistical data, information based on past performance, testimonials.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.
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.
|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:
Berry Plastics Corporation
Attorney at Law
Cross, Pennamped, Woolsey & Glazier, P.C.
Benesch, Friedlander, Coplan & Aronoff LLP
McCain & White, PC
Barnes & Thornburg LLP
Attorney at Law
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.