Antitrust Law Daily Wrap Up, ADVERTISING—Ind. Sup. Ct.: Attorney’s false or misleading public communications called for private reprimand, (Apr 14, 2014)

By John W. Arden, J.D., LL.M.

An Indiana attorney who entered an exclusive license agreement with the American Association of Motorcycle Injury Lawyers was properly reprimanded by the Indiana Supreme Court Disciplinary Commission for making false or misleading communications regarding legal services and for failing to include an office address in a public communication, according to the Indiana Supreme Court (In the Matter of: Anonymous, April 11, 2014, Per Curiam).

The American Association of Motorcycle Injury Lawyers (AAMIL) is a for-profit Arizona corporation that offers franchise opportunities involving its registered trademarks—including “Law Tigers” and other slogans and logos. The AAMIL grants licenses for the exclusive use of the marks within certain geographic areas to promote legal services to the motorcycle-riding public.

In March 2010, an Indiana lawyer entered into an agreement to be an exclusive licensee of AAMIL in Indiana for a period of three years. Under the agreement, AAMIL was obligated to ensure that all telephone calls to its Law Tigers toll-free number from Indiana were automatically routed to the lawyer. The AAMIL’s website included information about lawyers and law firms in various geographic areas of the U.S. It also contained examples of previous settlements and verdicts obtained by the AAMIL for clients and testimonials from clients.

The Indiana lawyer maintained a separate firm website, which could be accessed from a link on the Law Tigers website. This firm website included a statement about previous settlements and verdicts that was prohibited by Indiana law. The lawyer further distributed AAMIL-produced informational materials within his territory, including “promotional backers” containing a toll-free telephone number for the Law Tiger Service, the Law Tiger website address, and the names of the lawyer and his firm.

The Indiana Supreme Court Disciplinary Commission charged the lawyer with violating rules of professional conduct that prohibited (1) making false or misleading communications regarding services (including statistical data, past performance, and testimonials), (2) failing to include an office address in a public communication, (3) accepting referrals from an unqualified referral service, (4) improperly giving something of value for a recommendation, and (5) using an improper trade name.

False or misleading communication. The hearing officer concluded that the lawyer’s association and link to the Law Tigers website made him responsible for all of the promotional materials associated with the Law Tigers venture, including all of the communications on the website. This was so, because the average consumer would not make a distinction between the Indiana lawyer and the assertions on the website. In particular, the “Settlements and Verdicts” page of the Law Tigers website contained the type of information prohibited by Rule 7.2(d)(2) and Rule 7.1 of the Indiana Rules. The testimonials on the website were prohibited by Rule 7.2(d)(3) and 7.1 of the Indiana Rules.

As a whole, the information contained on that website suggested “that the quality and likely results of the Respondent’s professional services, as a member of Law Tigers®, would be comparable to the quality and success of the services provided by the other lawyers who are part of the Law Tigers® ‘national network of local motorcycle accident attorneys’ without referring to any back-up factual data, and as such, is the type of communication prohibited” by Rule 7.2(d)(4) and Rule 7.1 of the Indiana Rules.

The Indiana lawyer argued that the hearing officer erred in finding these violations because (1) none of the statistical data or testimonials on the website related to it and (2) its own website did not violate any of the rules. Under the totality of circumstances test, the Indiana Supreme Court agreed with the hearing officer’s conclusion that the average viewer would not differentiate between the lawyer and the statements made on the Law Tiger website. Thus, the lawyer was responsible for objectionable content on that website.

Failure to include office address. The Indiana lawyer conceded that he inadvertently violated the rule requiring the name and office address of a lawyer in any public communication.

Discipline. The hearing officer recommended that the lawyer not be given discipline harsher than a private reprimand. The Court agreed because he had no history of prior discipline in nearly 41 years of practice; he cooperated fully with the Disciplinary Commission; he exercised due diligence before entering into the relationship with the AAMIL; and his own website provided disclaimers regarding the content of the Law Tigers website.

The case is No. 45S00-1301-D1-33.

Attorneys: Karl L. Mulvaney (Bingham Greenbaum Doll LLP) and Ronald F. Layer (Layer Tanzillo Stassin & Babcock, P.C.) for the respondent. G. Michael Witte and Frederick L. Rice for the Indiana Supreme Court Disciplinary Commission.

Cases: Advertising FranchisingDistribution IndianaNews