FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT
DISCIPLINARY COMMISSION
Karl L. Mulvaney Donald R. Lundberg, Executive Secretary
Indianapolis, Indiana 115 West Washington Street
Indianapolis, Indiana 46204
IN THE
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) CASE NO. 49S00-0102-DI-73
ROBERT R. FOOS )
DISCIPLINARY ACTION
June 28, 2002
Per Curiam
Robert R. Foos, Jr., an Indianapolis attorney admitted to the
practice of law in this state in 1998, practiced exclusively as counsel for
Warrior Insurance Company under the name “Conover & Foos, Litigation
Section of the Warrior Insurance Group, Inc.” Today, we find the use of
that designation under those circumstances was misleading in violation of
the Rules of Professional Conduct.
Following the appointment of a hearing officer in this matter, both
parties stipulated to the facts and, upon petition for review, submitted
legal issues directly to this Court for final resolution. Our review
process in disciplinary cases is de novo in nature and includes a review of
the entire record presented. Matter of Manns, 685 N.E. 2d 1071 (Ind.
1997), Matter of Young, 546 N.E. 2d 819 (Ind. 1989).
We accept the parties’ stipulations and now find that the respondent
practiced law as an employee of Warrior Insurance Group, Inc. (“Warrior”)
with responsibilities that included providing insurance defense
representation to individuals or entities insured by Warrior. Despite his
exclusive employment arrangement with Warrior, the respondent utilized
letterhead and otherwise held himself out to the public under the name
“Conover & Foos,” even though Conover and Foos as an entity was
indistinguishable from Warrior. Following this Court’s decision in
Cincinnati Insurance Co. v. Wills, 717 N.E. 2d 151 (Ind. 1999),[1] the
respondent and his colleagues changed their name from “Conover & Foos” to
“Conover & Foos, Litigation Section of the Warrior Insurance Group, Inc.”
A lengthy disclaimer appeared at the bottom of the letterhead in small
type, stating that the lawyers of Conover & Foos were the exclusive
employees of Warrior Insurance Company. On May 1, 2001, they again changed
their public designation to “Warrior Litigation Counsel.”
The Commission charged the respondent with violating Ind.
Professional Conduct Rules 7.2(a)[2] and 7.2(b)[3] by his use of “Conover
& Foos, Litigation Section of the Warrior Insurance Group, Inc.” after this
Court’s decision in Cincinnati Insurance Co., alleging that the designation
was misleading as to the identity, responsibilities, and status of those
practicing law exclusively as employees of Warrior.
The respondent argues that once he changed the designation following
this Court’s decision in Cincinnati Insurance Co, the amended name
adequately disclosed that he was a member of a captive law firm and
truthfully revealed the captive law firm’s nature, especially since both
Conover and Foos are in fact Indiana attorneys who defend Warrior. The
Disciplinary Commission argues that the use of “Conover & Foos, Litigation
Section of Warrior Insurance Group” for a group of employees who defend
Warrior Insurance exclusively is misleading because the name strongly
implies that the legal department of Warrior is a distinct entity with no
corporate connection to the insurer.
In Cincinnati Insurance Co., the exclusive lawyers for Cincinnati
Insurance practiced under the name “Berlon & Timmel,” with a disclaimer on
their letterhead similar to that used by the respondent. We concluded that
the use of “Berlon & Timmel” implied independence from Cincinnati Insurance
Company, which could lead a potential client to believe incorrectly that
the client’s interests were being represented by an independent law firm.
"[T]he representation that the attorney-employee is separate and
independent from the employer is, at least, false, misleading and deceptive
[and] may be fraudulent, depending on the circumstances under which the
representation is made." Cincinnati Insurance Co. at 165 (other citations
omitted). As such, we found that the use of the designation was misleading
under Prof.Cond.R. 7.2. The same is true with respect to the use of
“Conover & Foos” in this case, even though the small-type disclaimer
accompanying the designation states that the attorneys are “exclusively
employed” by Warrior. The disclaimer appears on the bottom of the
letterhead, away from the heading and the location of the “Conover & Foos”
designation. As in Cincinnati Insurance, we believe that the disclaimer
language which accompanies the name “Conover & Foos,” especially in light
of its location on the letter and the smaller type size, is not sufficient
to negate the possible misconception of independence. Accordingly, we find
that the respondent’s use of the name “Conover & Foos, Litigation Section
of the Warrior Insurance Group, Inc” is misleading and thus violates
Prof.Cond.R. 7.2(a) and 7.2(b).
Having found misconduct, we must now assess an appropriate sanction.
We have reprimanded attorneys who engaged in deceptive or misleading
advertising. See, e.g., Matter of Foster, 630 N.E.2d 562 (Ind. 1994)
(public reprimand for advertising as a specialist and for obtaining
information in party’s name with party’s permission, in light of no prior
history of disciplinary action); Matter of Wamsley, 725 N.E.2d 75 (Ind.
2000) (public reprimand for attorney’s use of advertisement in which he
claimed that he could obtain “best possible settlement” in “least amount of
time”); Matter of Huelskamp, 740 N.E. 2d 846 (Ind. 2000) (attorney’s
mailing of misleading and improper advertising to recently arrested
individuals). The use of a misleading law firm designation in this case
deserves similar sanction.
It is, therefore, ordered that the respondent, Robert R. Foos, is
hereby reprimanded and admonished for the misconduct set forth herein.
The Clerk of this Court is directed to provide notice of this order
in accordance with Admis.Disc.R. 23(3)(d) and the hearing officer in this
matter, and to provide the clerk of the United States Court of Appeals for
the Seventh Circuit, the clerk of each of the United States District Courts
in this State, and the Clerk of each of the United States Bankruptcy Courts
in this state with the last known address of the respondent as reflected in
the records of the Clerk.
Costs of this proceeding are assessed against the respondent.
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[1] In that case, we held, insofar as it is relevant to this case, that the
use of “law firm like names” for “captive law firms” to describe attorney-
employees is prohibited by Prof.Cond.R. 7.2 because it misleadingly
suggests they are outside counsel. Cincinnati Insurance Co. at 165.
[2] Rule 7.2(a) provides that “[a] lawyer or law firm shall not use or
participate in the use of professional cards, professional announcement
cards, office signs, letterheads, telephone directory listings, law lists,
legal directory listings, or a similar professional notice or device if it
includes a statement or claim that is false, fraudulent, misleading,
deceptive, self-laudatory or unfair within the meaning of or that violates
the regulations contained in Rule 7.1.”
[3] Rule 7.2(b) provides in part that “[a] lawyer shall not practice under
a name that is misleading as to the identity, responsibility, or status of
those practicing thereunder, or is otherwise false, fraudulent, misleading,
deceptive, self-laudatory or unfair within the meaning of Rule 7.1, or is
contrary to law. In that it is inherently misleading, a lawyer in private
practice shall not practice under a trade name.”