ORIGINAL IN THE SUPREME COURT OF THE STATE OF INDIANA ) ) ) ) HEARING OFFICER'S REPORT Findings of Fact and Conclusions of Law

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1 ORIGINAL IN THE SUPREME COURT OF THE STATE OF INDIANA IN THE MATTER OF TIMOTHY F. KELLY Attorney No ) ) ) ) Cause No. 45S l-di -33 HEARING OFFICER'S REPORT Findings of Fact and Conclusions of Law This matter was set for Final Contested Hearing on August 29, 2013, 9:00 a.m. Mr. Fred Rice appeared for the Disciplinary Commission. Messrs. Karl Mulvaney and Ronald Layer appeared for Respondent, who also appeared in person. Mr. Kevin Willis and Respondent were both sworn and testified. All ofthe Commission's Exhibits (1-37) and Respondent's Exhibits (A-J) are admitted into evidence,within the ambit of the parties' stipulations thereto. However, I now overrule any reserved relevancy objections related to said exhibits at this time. At the conclusion of evidence, the parties rested and I took the matter under advisement, after setting a briefing schedule with the consent of the parties. The allegations against Respondent revolve around his participation in a lawyers' group advertising campaign, commonly known as Law Tigel's The Commission frames its allegations asserting that Respondent's participation therein constituted impermissible "fee sharing" and "case running," inter alia. Respondent has countered, in a nutshell, that his activities were ethically proper "lead generation" and that Indiana law in this regard is too unsettled to warrant discipline. I accepted a substantial factual stipulation from the parties (hereafter noted as 1

2 "Stipulation" with the corresponding numbered paragraph thereto). Said stipulations are taken as true and settled and are incorporated herein as part of my factual findings. Any factual finding I make that could be construed as a legal conclusion and any legal conclusion that I make that could be construed as a factual finding, should be so construed. I acknowledge and shall apply the clear and convincing evidence standard in making these findings and conclusiol)s. Findings of Fact 1. TIMOTHY F. KELLY (hereinafter "the Respondent") is an attol'1ley in active good standing, having been duly admitted to practice law in the State ofindiana on September 26, The Respondent's attorney number is (Stipulation 1) The Respondent has no history of prior discipline in nearly 41 years of practice and he has cooperated fully with the Disciplinary Commission during its investigation and prosecution of this matter. (Stipulations 33 and 34). Moreover, I find that, in all respects, Respondent was a truthful and credible witness. 2. The Respondent is, and was at all times relevant herein, the principal of Kelly Law Offices, a law firm in Crown Point, Lake County, Indiana, where the Respondent practices law. (Stipulation 2) 3. Warren G. Levenbaum is a lawyer licensed to practice in the State of Arizona, and is a pminer at Levenbaull1 & Cohen, a law finn with offices in Phoenix, Arizona. (Stipulation 3) 4. Levenbaum is also president and CEO of the American Association of Motorcycle Injury Lawyers, Inc. ("AAMIL"), a for-profit corporation organized and incorporated under the laws of the State of Arizona, with headquarters also in Phoenix, AZ. (Stipulation 4). 5. AAMIL is engaged in a business enterprise that offers franchise opportunities thl'ough arrangements involving the licensing by AAMIL of certain registered trademarks and other proprietary marks, slogans mld logos owned by AAMIL. (Stipulation 5) 2

3 6. As initially incorporated, in 2003, AAMIL described it business purpose as being "... to market legal services to motorcyclists through licensee attorneys under the trade name of The Law Tigers." (See Comm. Ex. 1) (Stipulation 6). Law Tigers is one of several registered trademarks owned by AAMIL. (Stipulation 7) 7. In April 2009, as it had in previous years, AAMIL filed with the Indiana Secretary of State a "Franchise Disclosure Document" permitting it to promote its franchise/licensing business opportunity within the State ofindiana. (See Conun. Ex. 4) The disclosure statement AAMIL filed with the Indiana Secretary of State in December 2004 was called a Uniform Franchise Offering Circular. (See Comm. Ex. 2). (Stipulation 8) 8. AAMIL's business model for its operations involves contracting with lawyers and law firms throughout the United States, and granting those lawyers and law firms licenses to exclusively use the Law Tigers name together with other proprietary marks, slogans and logos, also owned by AAMIL, within certain geographic areas identified in the license agreements (the "licensed te1'1'itory") to promote and market the benefits and services offered by AAMIL to the general public. (Stipulation 9) 9. Under the terms of the license agreements, these "Licensee" lawyers and law firms agree to engage in a number of activities in promoting and marketing the Law Tigers name, which activities are designed to promote and market Law Tigers as a service to meet the needs of the motorcycle-riding public for, among other things, legal advice andlor representation in connection with personal injury or property damage claims involving the operation of motorcycles. (Stipulation 10) 10. On 01' about March 15,2010, the Respondent, individually and as principal of the Kelly Law Offices, entered into a License Agreement as Licensee with AAMIL as Licensor 3

4 (hereinafter the "License Agreement") for an initial term of t1u'ee (3) years. (See Comm. Ex. 6). (Stipulation II) II. Previously, in March 2005, AAMIL had entered into an almost identical license agreement with Randall Sevenish, an Indiana attorney who practices law in Indianapolis, Indiana. (See Comm. Ex. 3) The Sevenish license agreement was terminated well before March 15,2010. (Stipulation 12). 12. I find that Mr. Sevenish paid a license fee of approximately $70, for the first year, $78, for his second year and $96, for his third year. Furthermore, I find that Mr. Sevenish was never subjected to disciplinary action for his activities as a licensee of AAMIL. This is important as I further find that Respondent did his own investigation, prior to entering into his license agreement, to ensure that Mr. Sevenish had not been disciplined for his actions. Moreover, I find that Respondent relied on the above, in part, in making his determination as to whether entering into the License Agreement would be ethical. l 13. I find that Respondent took the following additional steps to determine the ethicality of entering into a License Agreement with AAMIL before entering into said Agreement: a. He contacted the Disciplinary Commission and requested an Advisory Opinion as to the ethicality of entering into said agreement. The Disciplinary Commission refused Respondent's request. b. He contacted the Indiana State Bar Association's Ethics Committee and made a similar request, which was likewise refused. I This, of course, does not bar this action against Respondent. However, it is significant evidence of his efforts at due diligence. 4

5 c. He reviewed a legal opinion from Atty. Lynda Shell, in which she stated that, pursuant to Indiana's Rules of Professional Conduct, entering into the License Agreement would not be a violation of said Rules. d. He consulted with all four of his finn's associates, in a free and open discussion, as to their opinion regarding the Agreement's ethicality. All agreed it was ethically permissible to enter into the Agreement. e. He was aware that there were several other groups with names like ABATE, AIM, BAM and others, where lawyers were the licensees or Indiana representative for such groups, in some cases headed by out-of-state attorneys. Those groups appeared to be engaged in the same type of lead generation without matching that AAMIL provided. f. Respondent did not believe that the lawyers involved in those other lead generating organizations had been disciplined and testified that one such lawyer, the BAM representative, advertised that he had utilized BAM for 20 years. Respondent further testified that he checked the Indiana Supreme Court Online Docket and found that no charges had been brought against that attorney. 14. I further credit Respondent's testimony regarding due diligence, wherein, he stated: Well, I was extremely comfortable that we weren't a referral service because there are so many additional requirements for referral service. For instance, you have to pay something of value. I was paying a dollar. Okay. You have to have... human intervention. There was none in this program. You had to have the humans matching". the needs of the client to the abilities of the lawyer. None of that occurred in this case. I had in front of me the fact that 2 With regard to Atty. Shely's credentials, Respondent characterized her as the "Donald Lundberg of Arizona." I accept the characterization. 5

6 Mr. Sevenish had done the program right under the nose of the Commission and not been charged. So I was confident and actually quite surprised when they, in 2012, finally came up with this idea that it was an impermissible referral service. I was confident at the time that we were well outside the boundary of that. (Tr. p. 127) 15. I find that the Commission was well aware of Respondent's efforts at due diligence via Respondent's September 2012 letter to the Commission, with attached exhibits (See Ex. G). In fact, following receipt of his submission, the Commission sent Respondent a letter informing him it would not be pursuing charges against him. The COl11l11ission, for reasons unclear, then reversed itself and proceeded with the instant matter. (Tr. pp ). 16. Under the Respondent's License Agreement, the promotional and marketing activities the Respondent agreed to perform within his exclusive licensed territoly included arranging and paying for media advertisements on radio and television, attending conventions, motorcycle events and trade shows focused on motorcycles and motorcycle riding, and visiting vendors of motorcycles and motorcycle equipment to hand out or otherwise cause the distribution of AAMIL produced Law Tigers informational materials. (Stipulation 13). Moreover, I find that Mr. Sevenish, under his Agreement, engaged in these same activities. 17. In addition to having the Law Tiger Licensees, including the Respondent, pay for the actual costs ofthe promotional, marketing and advertising activities within the Licensee's exclusive licensed territory, AAMIL's business plan, evidenced in its Franchise Disclosure Document, would typically have Licensees agree to pay a license fee in the approximate amount of between $20,000 and $90,000 per year for the benefits granted the Respondent under the License Agreement. (See Comm. Ex. 4, p. 4) (Stipulation 14) 18. During negotiations of the Respondent's License Agreement in March 2010, AAMIL agreed to the Respondent's request to waive all but $1.00 (one dollar) of the license fee 6

7 for the first two years of the initial three-year term of the License Agreement. The Respondent's License Agreement thus provided for a license fee of$1.00 (one dollar) for each of the first two years (2010 and 201l) of the three-year tenn. The License Agreement provided for a license fee of $238,000 for the third year (2012). (Stipulation 15) 19. The Respondent paid the license fee amount for the first and second years as required under the License Agreement. (See Conun. Ex. 9) (Stipulation 16) 20. In November 2011, the Respondent requested that AAMIL waive the license fee for the third year of the License Agreement that was to begin in March, (See Comm. Ex. 7) (Stipulation 17). 21. In January 2012, AAMIL responded to the Respondent's request, and agreed to waive all but $1.00 (one dollar) of the $238,000 license fee for the third year of the term. (See Comm. Ex. 8) (Stipulation 18) 22. The Respondent paid the $1.00 (one dollar) third-year license fee on April 4, (See Comm. Ex. 9) (Stipulation 19) 23. I find that in addition to the license fee paid by the Respondent to AAMIL, over the tlu'ee-year initial term of the License Agreement, the Respondent also paid AMMIL advertising costs for advertisements written and produced by AAMIL and run on behalf of the Respondent in local markets within the Respondent's exclusive licensed territory, in an amount of at least $119, However, at no time did Respondent share his fees, divide his fees or make payment to AAMIL based on the number of cases he received via the License Agreement. 24. A major part of the AAMIL produced informational materials the Respondent distributed or caused to be distributed within his exclusive licensed territoly, included what are known as "promotional backers," to which are attached "Free Biker Benefit Cards" containing, 7

8 among other information, a toll-free telephone number to access the Law Tigers service, "1-800-LA W-TIGERS" ( ), and the Law Tigers internet website address, "LaIl'Tigers.com". In addition, the Respondent's name, "Tim Kelly," and the name of the Respondent's law firm, "Kelly Law Offices," with no address for either, also appear on the promotional backers followed by the phrase "America's Injw)' Lawyers Who Ride," another one of the proprietmy marks owned by AAMIL and licensed for use by the Respondent under the terms of the License Agreement. Also, the Respondent's name and the name of his law firm do not appear at all on either the wallet size or key-chain size "Free Biker Benefit Cards" themselves. (See Comm. Ex. 10) (Stipulation 20) 25. The Respondent violated Rule 7.2(c) (2011) of the Indiana Rules of Professional Conduct during the years 2011 and 2012 by failing to include his office address in the informational materials distributed by the Respondent in connection with his and his law firm's Law Tigel's promotional, marketing and advertising activities. The parties agree that there was no violation for the year 2010 because it was only in 2011 after an amendment to Rule 7.2(c) that the address was required on such informational materials. (Stipulation 32) follows: 26. Furthermore, regarding this allegation, Respondent testified, truthfully, as "In 2010, the promotional information, which is the subject of this case, had just Kelly Law Offices on; and that is what the Rule required. I became aware in 2010 that there were some... proposed amendments to the Rules. And we looked at the proposed amendments; and, the proposed amendment to the Rule that governs this issue upped the ante, by,... saying that not only did you have to have the fmn name but you had to have one of the lawyer's responsible -- the name of one of the lawyers responsible for the material on the card. In anticipation of that being adopted, we then modified this card to include not only the firm name but also my individual name. 8

9 And apparently, at some point between the promulgation of the proposed amendments and actual adoption of the Rule, someone dropped in the address requirement and we just missed it. But I was unaware that we had missed it until we gotthe Complaint." (Tr. pp ) 27. At conventions, trade shows and motorcycle events in the Respondent's exclusive licensed territory, where the Respondent was required to have a visible presence, the Respondent customarily set up or caused to be set up an AAMIL designed Law Tigers promotional display booth/tent, with the Law Tigers name displayed clearly and prominently in and around the booth/tent. (Stipulation 21) 28. The Law Tigers toll-free telephone number service was arranged for and established by AAMIL and operates under its authority. (Stipulation 22) 29. Under the terms of the License Agreement, AAMIL was obligated to insure that all calls to the Law Tigers toll-free telephone number seeking assistance from a lawyer and emanating from within the Respondent's licensed territory were automatically routed directly and exclusively to the Respondent at Kelly Law Offices. (Stipulation 23) 30. In addition, members of the motorcycle riding public may also contact Law Tigers through AAMIL's Law Tigers internet website at LawTigers.com, and engage, online, with a live "chat operator." (Stipulation 24) 31. I find that on February 15,2012, at Mr. Rice's direction, Mr. Kevin Willis (then a law student and intern with the Disciplinary Commission), went to the Law Tigers website. Mr. Willis then supplied his first name to a chat-prompt and engaged a "chat operator" in a text exchange reproduced below, verbatim: "Kyra H says: Hi Kevin. Kyra H says: I'm a chat operator, my job is to find out what you need help with and see if we have a Law Tigers attorney available to help you. 9

10 Kevin says: Hi Kyra. How are you? Kyra H says: If it's alright with you, I'm going to ask a few brief questions to try to narrow the type of help you need. Kevin says: "Ok. Sounds good. Kyra H says: What best describes your accident? Motorcycle Accident, Auto or Truck Accident, or something else? Kevin says: I have not been in an accident. I'm just browsing your web site. Kevin says: Are you in Indiana? Kyra H says: Our national network of local motorcycle accident attorneys are located in cities throughout the United States. Kyra H says: May I get your phone number and address? I am going to have one of our Law Tiger law firms contact you right away to discuss your case. Kevin says: I don't really have a case right now with a motorcycle accident. Someone told me about your site and I thought I'd take a look. So you have a Law Tiger Law Firm in Indiana? Kyra H says: We have a network oflawyers and we will be able to find you one in Indiana. Kevin says: Oh, okay. So you could refer me to a lawyer in Indiana if I was in a motorcycle accident or like if someone else stole my bike? Kyra H says: Yes we can. Kevin says: That's good to hear. Would I have to pay you for the referral fee or does the Indiana Law Tiger take care of that referral fee? Kyra H says: I work as a chat operator. I obtain some general information about your lo

11 claim and then we can determine if one of our attorneys is available to assist you." Kyra H says: May I get your phone number and address? I am going to have on of our Law Tiger law firms contact you right away to discuss your case. Kevin says: Well, let me think about it a little more. Thank you for your time. Kyra H says: "Thank you for contacting us, have a wonderful day." 32. I find that because Mr. Willis did not provide his phone number, his contact with Law Tige/'s was not routed to Respondent's office. That is, in order to route individuals to the correct geographically-located attorney, the Law Tigers website must first obtain an area code or other geographical information from the caller. As Mr. Willis' contact with Law Tigers was largely devoid of identifying information, no such contact with Respondent was possible. As such, I cannot make a finding or conclusion by clear and convincing evidence that this "chat" constitutes impermissible screening of potential clients. 3 Moreover, the only other evidence provided on this issue were the affidavits of Aaron Hines (Respondent's Exhibit I) and Jo Patton (Respondent's Exhibit J). Both affidavits assert, and I find, that no screening of potential clients takes place during a chat session. Rather, after conclusion of the chat, the entire transcript of the chat is routed to the geographically appropriate AAMIL member. And, to reiterate, because Mr. Willis did not provide such information during his chat, no such routing was possible. 33. Of the routed calls or internet website contacts received by the Respondent from persons contacting Law Tigers and presenting legal matters during the first 2 V, or so years of the term of the License Agreement, at least twenty-six (26) such contacts resulted in the establishment of lawyer-client relationships that were fee-generating representations for the 3 Respondent's counsel suggested that Mr. Willis' actions in this regard, or rather, the attorney(s) supervising him as an intern, violated Rule of Professional Conduct 4.1. I will not address the merits ofthis suggestion, other thall to say that I did find the Conunissioll's tactics in this regard disconceliing in light of the dictates of the Rule ill question. 11

12 Respondent and his law firm. (See Resp. Ex. F) (Stipulation 25) 34. All ofthe promotional, marketing and advertising activities engaged in by the Respondent in colmection with the Law Tige/'s venture were designed so as to promote the Respondent and his law firm as the exclusive Law Tige/'s source for legal services within the Respondent's licensed territory. (Stipulation 26) 35. In addition, it was AAMIL's and the Respondent's intent that any personal injury/property damage legal business generated as a result of the Law Tigers promotional and marketing activities from within the Respondent's licensed te1'l'itory would inure solely and exclusively to the benefit of the Respondent and his law finn. (Stipulation 27) 36. The AAMIL Law Tige/'s internet website at LawTigers.com, contains a wide variety of information for the general motorcycle-riding public, including information about and on behalf of those lawyers and law firms AAMIL identified as the Law Tige/'s source of legal services in the various geographic areas of the United States. (Stipulation 28) 37. The Law Tige/'s website identifies, and offers the visitor a search function that identifies the Respondent and his law firm as the exclusive Law Tigers source for legal services for the geographic areas in the State ofindiana that comprises the Respondent's licensed territory. (See Comm. Ex. 16) (Stipulation 29) 38. The Law Tige/'s website also contains examples of previous results obtained through settlements and verdicts by "Law Tige/'s Motorcycle Accident Lawyers," categorized by examples of various types of motorcycle accidents and types of injuries, and the dollar amounts of the settlements and/or verdicts obtained. (See Comm. Ex. 14) None of the settlements and verdicts mentioned on the Law Tige/'s website are the Respondent's. The Law Tigers website does not state that the settlement and verdicts mentioned therein are not the 12

13 Respondent's, and does not identify the lawyer or law finn to whom the settlement and verdicts are attributable. (Stipulation 30) 39. The Law Tigers website also contains a tab that can be used by visitors to the website to access a page in the website titled "Client Testimonials," which contains both video and written testimonials from persons who claim to have utilized the Law Tigers service in seeking advice and/or representation with regard to a motorcycle-related legal matter. (See Comm. Ex. 15) None of the testimonials on the Law Tigers website specifically refer to the Respondent. Nothing in the Law Tigers website specifically states that the Respondent is not the lawyer to whom the testimonials refer. One such written testimonial that appeared on the Law Tigers website read as follows: (Stipulation 31) "These motorcycle attorneys are all we talk about to our friends that ride. The Law Tigers went above and beyond to help me in my condition with hospital and home visits. The legal services were fast and painless and the best experience I have ever had with lawyers and lawsuits. -Karen L." 40. I find that Respondent also maintained a separate internet website for his law finn, Kelly Law Offices, at tfklawfirm.com, which could be accessed through a link from the Law Tigers website. 41. I find that The Kelly Law Offices website included a page that stated that the Kelly Law Offices is not permitted to include information about previous results obtained through settlements and verdicts. 42. I find that a visitor to the Law Tigers website is not required to, and need not access the link to the separate Kelly Law Offices website in order to be put in contact with Respondent and his law firm as the exclusive Law Tigers source for 13

14 legal services within the Respondent's Indiana licensed territoly. Conclusions of Law 1. The first and second issues are closely enough related that I shall analyze them jointly. The first issue is whether the Respondent violated Ind Rule of Professional Conduct 7.3(e) (2010) and Rule. 7.3(d) (2011) by pmiicipating in a non-qualified referral service with AAMIL, in which potential clients were referred to the Respondent within Indiana on an exclusive basis for legal representation through the Law TigerS service. [COlmllission's Verified Complaint, ~~ 20] 2. Ind Rule of Professional Conduct 7.3(e) (2010) states: A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure the lawyer's employment by a client, or as a reward for having made a recommendation resulting in the lawyer's employment by a client, except that the lawyer may pay for public communication permitted by Rule 7.2 and the usual and reasonable fees or dues charged by a lawyer referral service falling within the provisions of paragraph (d) above." Ind. Rule of Professional Conduct 7.3(d) (2011) states: "A lawyer shall not accept referrals from, make referrals to, or solicit clients on behalf of any lawyer referral service unless such service falls within clauses (1) (4) below. A lawyer or any other lawyer affiliated with the lawyer or the lawyer's law firm may be recommended, employed, or paid by, or cooperate with, one of the following offices or organizations that promote the use of the lawyer's services or those of the lawyer's finn, if there is no interference with the exercise of independent professional judgment on behalf of a client of the lawyer or the lawyer's finn: (1) A legal office or public defender office: (A) operated or sponsored on a not-for-profit basis by a law school accredited by the American Bar Association Section on Legal Education and Admissions to the Bar; (B) operated or sponsored on a not-for-profit basis by a bona fide nonprofit community organization; (C) operated, or sponsored on a not-for-profit basis by a govenm1ental agency; (D) operated, sponsored, or approved in writing by the Indiana State Bar Association, the Indiana Trial 14

15 Lawyers Association, the Defense Trial Counsel of Indiana, any bona fide county or city bar association within the State of Indiana, or any other bar association whose lawyer referral service has been sanctioned for operation in Indiana by the Indiana Disciplinary Commission; and (E) operated by a Circuit or Superior Court within the State ofindiana. (2) A military legal assistance office; (3) A lawyer referral service operated, sponsored, or approved by any organization listed in clause (1 )(D); or (4) Any other non-profit organization that recommends, furnishes, or pays for legal services to its members or beneficiaries, but only if the following conditions are met: (A) the primary purposes of such organization do not include the rendition oflegal services; (B) the recommending, furnishing, or paying for legal services to its members is incidental and reasonably related to the primaty purposes of such organization; (C) such organization does not derive a financial benefit from the rendition of legal services by the lawyer; and (D) the member or beneficiary for whom the legal services are rendered, and not such organization, is recognized as the client of the lawyer in the matter." 3. The second issue is whether the Respondent violated Ind Rule of Professional Conduct 7.3(f) (2010) and Rule 7.3(e) (2011), and Rule 7.2(b) (2011) by paying AAMIL a license fee. That is, whether the Respondent compensated and gave something of value or a "referral fee" to AAMIL for the arrangement by which AAMIL recommended, channeled and otherwise assisted in securing the Respondent's professional employment to those consumers who interacted with the Lall' Tigers service. [Commission's Verified Complaint, ~ 21] 4. Ind. Rule of Professional Conduct 7.3(f) (2010), states: "A lawyer shall not accept employment when the lawyer knows, or reasonably should know, that the person who seeks the lawyer's services does so as a result of lawyer conduct prohibited under this Rule 7.3." 15

16 Ind. Rule of Professional Conduct Rule 7.3(e) (2011), states: "A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure the lawyer's employment by a client, or as a reward for having made a recommendation resulting in the lawyer's employment by a client, except that the lawyer may pay for public conmmnication permitted by Rule 7.2 and the usual and reasonable fees or dues charged by a lawyer referral service falling within the provisions of paragraph (d) above." Ind. Rule of Professional Conduct Rule 7.2(b) (2011), states: "A lawyer shall not give anything of value to a person for recommending or advertising the lawyer's services except that a lawyer may: (1) pay the reasonable costs of advertisements or communications permitted by this Rule; (2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service described in Rule 7.3(d); (3) pay for a law practice in accordance with Rule 1.17; and (4) refer clients to another lawyer or a non-lawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if (i) the reciprocal referral agreement is not exclusive, and (ii) the client is informed of the existence and nature of the agreement." 5. The parties, via their briefs, both acknowledge one exceedingly salient point: whether lead generation and payment therefore is ethically permissible under our Rules has yet to be addressed. Our Rules are deathly silent as to their application to the given fact pattern. Nonetheless, I conclude that of the jurisdictions that have addressed this issue, those that have found lead generation permissible have the better of the argument. See Alabama Slate Bar Assoc. v R. TV Lynch Co., Inc. 655 So.2d 982 (Ala. 1995); Arizona Ethics Opinion No (1995); Kentucky Bar Association Ethics Opinion E-429 (2008); New York State Bar Association Committee on Professional Ethics Opinion 799 (2006). Furthermore, I conclude that the Commission failed to establish by clear and convincing evidence that any inappropriate "matching" (as used in the above cited authorities) has taken place. Thus, under the precedents 16

17 listed, no ethical violation has been adequately established. 6. However, while I acknowledge the import of having this issue settled, there are far gentler means of achieving this end than a Disciplinary Proceeding, i.e., amending our Rules of Professional Conduct, 4 particularly on the unique facts of the present case. Moreover, the following exchange during the Final Hearing was most disconcerting: "Hearing Officer Pagano: Allright. Well, Mr. Rice, I will ask you, what is the maximum level of discipline the Commission is asking for 01' is requesting or is going to seek? By Mr. Rice: Your Honor, um, um, what we will do, Your Honor, is, um, provide you with, uh, Proposed Findings of Fact. By Hearing Officer Pagano: You can't answer that question today, sir? I'm just curious as to what you're - - what the Commission is looking for. What's - - What's - - What is the appropriate remedy you're gonna be requesting? By Mr. Rice: As far as discipline? By Hearing Officer Pagano: Yes. By Mr. Rice: I - -I can't answer that. I - -I - - I'm not in a position to do that. I mean, I have to consult with my client and ask them what they want to do. Um, - - By Hearing Officer Pagano: Well, personally, do you have an opinion as to what 4 Fortunately, we would not have to look far for such an amendment or clarification. The ABA's Model Rules of Professional Conduct already differentiate between lawyer referral services and "lead generation services." Specifically, Comment [5] to Model Rule 7.2 states that: A lawyer may compensate employees, agents and vendors who are engaged to provide marketing or client development services, such as publicists, public-relations personnel, businessdevelopment staff and website designers. Moreover, a lawyer may pay others for generating client leads, such as Internet-based client leads, as long as the lead generator does not recommend the lawyer, any payment to the lead generator is consistent with Rules 1.5( e ) (division of fees) and 5.4 (professional independence oft11e lawyer), and the lead generator's communications are consistent with Rule 7.1 (communications concerning a lawyer's services). To comply with Rule 7.1, a lawyer must not pay a lead generator that states, implies, or creates a reasonable impression that it is recommending the lawyer, is making the referral without payment from the lawyer, or has analyzed a person's legal problems when determining which lawyer should receive the referral. 17

18 the appropriate level of discipline would be if I find on all counts of your Complaint that [sic 1 you've proven is true? By Mr. Rice: Uh, I, you know, I would think that certainly, uh, and let me just, uh, mention that certainly recognizing the position Mr. Kelly was in, some of the things he did, uh, which were good, uh, um, but recognizing the, uh, - -the, um, - - as - -as, uh, - - as counsel has put it, that - - that this is kind of an, uh, - -a - -a dark room, if you will. Uh, and - -and as I put it, that these issues are fairly unsettled. Uh, uh, the ultimate discipline that - - that probably should be imposed here is certainly not going to be great. I can't put a - - put a specific - - You know, discipline ranging from a public reprimand, I think, in this particular case, all the way up to disbarment. Certainly, this is not a disbarment case. Certainly, this is not a suspension case. But, beyond that, I mean, so we're talking about somewhere in the lower levels, uh, public reprimand up to, uh, I doubt even - - even a short suspension probably. So, uh, I would think that we were - - we're probably somewhere in the public reprimand arena. Uh, but that's not the important part of this. The discipline is /lot tlte important part. It's a determination of what the Rules require and what they say..." (Tr. pp ; emphasis added.) I must disagree with Mr. Rice's assessment. The law is important, without question. However, the idea that Respondent should be used as a mere instrument to re-write an exceptionally unsettled area of the law troubles me deeply, especially in light of the great lengths Respondent went to in ascertaining whether his participation in AAMIL would cause him disciplinary grief in the future. (See Findings 12 and 13). 7. As I have not previously served as a Hearing Officer, it is possible that the 18

19 Commission's pursuit of charges in circumstances such as this, when the Rules are unsettled and a respondent has engaged in thorough due diligence, may well be common practice. If this is indeed the case, I would point to Justice David's opinion in Fry v. State, 990 N.E.2d 429 (Ind. 2013), wherein he wrote: '"... that's the way we've always done it' is a poor excuse... for continuing to do something wrong." Jd. at 442. (emphasis in original). 8. In light of the above, 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. Rather, I find it preferable to rest the analysis of these allegations on Paragraph 19 of the Preamble to our Rules of Professional Conduct, as argued by Respondent: The Rules presuppose that disciplinary assessment of a lawyer's conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question and in recognition of the fact that a lawyer often has to act upon uncertain or incomplete evidence of the situation. Moreover, the Rules presuppose that whether or not discipline should be imposed for a violation, and the severity of sanction, depend on all the circumstances such as the willfulness or seriousness of the violation, extenuating factors and whether there have been previous violations. 9. I would urge the Supreme Court to ultimately conclude that the facts and circumstances of this case, on these specific allegations, warrant no further action or discipline. Should the Commission seek clarification of our Rules with regard to whether lead generation should be considered impermissible referrals, it should pursue a change and/or clarification tlll'ough our Rule Amendment procedures. 10. The third, fourth, fifth and sixth issues are closely related and shall be analyzed jointly. The first issue is whether the Respondent violated Ind. Rule of Professional Conduct 7.2(d)(2) (2010) and Rule 7.1 (2011) in that the information on the Law Tigers website, communicated for and on behalf of the Respondent and the other lawyers and law finns that make up the Law TigerS "national network of motorcycle accident lawyers," contains statistical 19

20 data and/or information based on past performance and/or results reasonably likely to create an expectation of similar results in future matters. [Commission's Verified Complaint, ~ 22] II. Ind Rule of Professional Conduct 7.2(d)(2) (2010), states: "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: (2) contains statistical data or other information based on past performance or prediction of future success... " Ind Rule of Professional Conduct Rule 7.1 (2011), states: "A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading." 12. The fourth issue is whether the Respondent violated 1nd Rule of Professional Conduct 7.2(d)(3) (2010) and Rule 7.1 (2011) because the information on the Lall' TigerS website, communicated for and on behalf of the Respondent and the other lawyers and law finns that make up the Lall' TigerS "national network of motorcycle accident lawyers," contained testimonials and/or endorsements of the Respondent as a Lall' Tigers lawyer, which were reasonably likely to create unjustified expectations about the Respondent and his law finn. [Commission's Verified Complaint, ~ 23] 13. Ind Rule of Professional Conduct 7.2(d)(3) (2010), states: "A lawyer shall not, on behalf of himself, his patinei' 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: (3) contains a testimonial about or endorsement of a lawyer..." Ind Rule of Professional Conduct Rule 7.1 (2011), states: "A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a 20