By: Dave Stafford, www.theindianalawyer.com
A recent Indiana attorney disciplinary order quickly gained the notice of the ABA Journal and legal blogs, prompting some analysts to predict the ruling would have a chilling effect on lawyers here and around the country. But the case also involved pursuit of discipline that a court-appointed hearing officer called “disconcerting.â€
Crown Point attorney Tim Kelly was reprimanded for testimonials appearing on the Law Tigers website, over which he had no content control. (Photo submitted)
The Indiana Supreme Court’s April 11 opinion, In the Matter of: Anonymous, 45S00-1301-DI-33, concluded a protracted attorney discipline case with a private reprimand. The lawyer was found to have made misleading communications regarding legal services offered in testimonials, and he failed to include his office address on a promotional item.
But the offending testimonials weren’t on the attorney’s website. They appeared on the website for Law Tigers, a network of the American Association of Motorcycle Injury Lawyers that the lawyer subscribed to. Additionally, the promotional item that lacked an address did conform with advertising rules at the time it was produced. After a rule change added a requirement that office addresses appear on advertising, the lawyer acknowledged the change escaped his notice. Once aware of the rule change, he added his address to Law Tigers promotional items that he passed out at biker events, according to the record.
A cursory review of the case reveals that anonymous is Tim Kelly, a longtime Crown Point personal injury attorney. A closer examination of the record suggests Indiana Supreme Court Disciplinary Commission attorneys went too far and employed tactics in prosecuting the case against Kelly that may have violated Rules of Professional Conduct.
“My father practiced law in Indiana for 30-plus years and never had a disciplinary issue. I’ve practiced law for almost 42 years and this is the only discipline issue I’ve ever had,†Kelly said. “I’ve worked extremely hard to be ethical, honest, successful and recognized as a good lawyer. … It is really devastating that something like this resulted in me being disciplined.â€
The Supreme Court disciplinary order makes no mention of problems with the commission’s investigation. But Lake Superior Magistrate Michael Pagano, who presided as hearing officer, concluded his sometimes-blistering report to the court by writing that he initially believed the commission “overreached.â€
“I am of the firm belief that my initial evaluation was, and remains, correct,†Pagano wrote.
What’s a violation?
Disciplinary Commission Executive Director G. Michael Witte referred inquiries about Kelly’s case to staff attorney Fredrick Rice, who prosecuted the matter. The commission alleged five rule violations against Kelly but proved just two – violation of Rule 7.1 for false or misleading communications regarding services, and Rule 7.2(c), failing to include an office address in a public communication.
Rice urged the Supreme Court to clarify murkier aspects of rules, particularly as they relate to attorney responsibility for statements appearing on third-party lead-generating platforms such as Law Tigers.
“The commission firmly believes that a written opinion from this Court is needed to (serve) as guidance to all members of the Indiana Bar,†Rice summed up in response to Pagano’s findings.
So what’s the advice for attorneys who may use any of a growing number of lead-generating platforms or be affiliated with groups whose websites include testimonials? Might they face discipline for content on sites over which they have no control?
“It’s kind of a hard question to address because the court didn’t address it in the opinion,†Rice said. “With regard to giving lawyers some kind of guidance in the future, unfortunately, I think the court did not take that step.â€
But Rice said the opinion makes clear that lawyers should consider themselves responsible for any affiliated Internet communication that appears to benefit them, even if they didn’t publish it themselves.
Kelly’s rule violation arose from testimonials on the Law Tigers site that provided examples of previous results. Offending statements included: “Law Tigers changed my life in a big way and my family received our fair share of justice,†and “Law Tigers went above and beyond! The settlement was more than expected!†None of the statements were attributed to Kelly or his firm, and his firm’s site contained a disclaimer that comported with Rules of Professional Conduct.
While Pagano had trouble with the case against Kelly, he identified the rule violations and recommended the minor sanction that the court accepted.
“Under the totality of the circumstances of this case, the Court agrees with the hearing officer’s conclusions that the average viewer would not differentiate between Respondent and the statements about Law Tigers on the AAMIL website and that Respondent is therefore responsible for objectionable content on the website,†the court held.
Rice downplayed Pagano’s criticism of the commission’s prosecution of Kelly’s case. “The Supreme Court certainly did not address those issues in their opinion,†Rice said. “I doubt they put a lot of importance on that, I don’t know.â€
‘Test case’ grew testy
Bingham Greenebaum Doll LLP partner Karl Mulvaney defended Kelly before the commission. He argued Kelly was a test case where greater rule clarity could have been achieved through the rulemaking and amendment processes.
“It’s really a shame because I don’t think my client deserves to be tagged too hard here,†Mulvaney said.
Kelly’s discipline case even surprised him a bit.
“All I can say is the hearing officer recognizes this was an unusual prosecution and the Supreme Court accepted his findings,†he said.
Before signing with Law Tigers, Kelly sought an opinion from the Disciplinary Commission, which it declined to provide, according to the record. He also sought an opinion from the state bar and consulted with nationally recognized attorney Lynda Shely, outside ethics counsel to AAMIL and a longtime director of lawyer ethics for the State Bar of Arizona.
“Quite frankly, it appears to Mr. Kelly that the Commission’s attempt to use him as a test case amounts to a due process violation because the Rules of Professional Conduct certainly do not make it clear that participation in (Law Tigers’) group advertising is a violation of the Rules,†Mulvaney argued in a brief to the court.
Pagano saw abuses and irregularities, too.
“The commission was well aware of (Kelly’s) due diligence,†Pagano wrote. “In fact, following receipt of his submission, the commission sent (Kelly) a letter informing him it would not be pursuing charges against him. The commission, for reasons unclear, then reversed itself and proceeded with the instant matter.â€
Pagano noted in his findings that Rice had difficulty articulating a proposed sanction when asked, ultimately saying, “… that’s not the important part of this. The discipline is not the important part. It’s a determination of what the rules require and what they say.â€
“(T)he idea that (Kelly) should be used as a mere instrument to re-write an exceptionally unsettled area of law troubles me deeply, especially in light of the great lengths (Kelly) went to in ascertaining whether his participation in AAMIL would cause him disciplinary grief,†Pagano wrote.
He wrote that he wasn’t certain if the commission’s pursuit of cases where rules are unsettled and the respondent has been diligent was common. He invoked Justice Steven David’s opinion in Fry v. State, 990 N.E.2d 429 (Ind. 2013): “(T)hat’s ‘the way we’ve always done it’ is a poor excuse … for continuing to do something wrong.â€
Pagano declined to answer questions about the case.
Mulvaney argued in court documents that commission staff also appeared to violate Professional Rule of Conduct 4.1 by having an intern engage in a live chat session on the Law Tigers website in an unsuccessful attempt to generate an anonymous inquiry to Kelly’s office. Rule 4.1 requires truthfulness in statements to others, and the intern identified himself in the live chat as a typical Web user browsing the site as he made general inquiries about the service.
Pagano declined to weigh whether commission staff may have violated rules. “I will not address the merits of this suggestion, other than to say I did find the commission’s tactics in this regard disconcerting in light of the dictates of the Rule,†he wrote.
At one point, Pagano’s irritation with the commission’s tactics precluded consideration of some of its arguments. “I shall not engage in further analysis of these issues out of fear it would constitute positive reinforcement of behavior that should not be encouraged,†he wrote.
The commission petitioned for review after receiving Pagano’s findings and conclusions, but the Supreme Court denied the request. “The hearing officer’s suggestion that the commission staff engaged in some form of deceptive or dishonest ‘pretexting’ … is contrary to the evidence presented,†Rice wrote.
The intern “in no way misrepresented anything about himself or what he was doing in his interactions with the Law Tigers live chat operator,†Rice argued.
Unsettled rules
Indiana University Robert H. McKinney School of Law Professor David Orentlicher said rulings from the Supreme Court of the United States and other federal courts have found some state attorney advertising rules violate First Amendment free speech protections or impermissibly restrain trade.
“In this case, the only question is, ‘Did he violate the rules?’ not ‘Are the rules valid under the Constitution?’†Orentlicher said. “That’s an important question that’s lurking here.â€
Shely, the Arizona legal ethics attorney, said Kelly’s discipline runs counter to prevailing trends. Kelly’s disciplinary ruling could be extended to any attorney who’s affiliated with the Association of Professional Responsibility Lawyers, for instance. Shely noted the Anonymous opinion came shortly after that group concluded a conference on attorney advertising regulation.
“You have each state trying to regulate lawyer advertising,†Shely said, “when in fact you have things like YouTube and the Internet. … People all over the world will look at that information.â€
Shely said the Federal Trade Commission also has warned against overzealous rules enforcement if speech is truthful. “I understand there is a mindset among some lawyers that we’re a profession and we shouldn’t have to advertise and it’s unseemly, but that’s not realistic in this day and age,†she said. “It’s also not constitutional.â€
Mulvaney said the testimonials for which Kelly was disciplined pale in comparison to numerous other examples of lawyer advertising.
“The contours of what advertising is, is in something of a state of flux and it’s probably too early to tell how this will all play out around the country,†Mulvaney said, “but it’s a conversation worth having. … In the scheme of things, my client’s conduct shows every attempt to be in compliance with the rules.â€
For Kelly, the experience leaves a blemish on an otherwise clean record dating to 1972, and it stings.
“The grievances that formed the basis for the disciplinary action came from my competitors,†he said. “The primary purpose of the commission is to protect the public, and the public wasn’t complaining.â€â€¢
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