FOR THE RESPONDENT FOR THE INDIANA SUPREME COURT
Karl L. Mulvaney Donald R. Lundberg, Executive Secretary
Indianapolis, Indiana 115 West Washington Street Indianapolis, Indiana 46204
SUPREME COURT OF INDIANA
IN THE MATTER OF )
) CASE NO. 49S00-0102-DI-73
ROBERT R. FOOS )
June 28, 2002
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 Courts decision in Cincinnati Insurance Co. v. Wills, 717 N.E. 2d 151
See footnote 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)See footnote and
7.2(b)See footnote by his use of Conover & Foos, Litigation Section of the
Warrior Insurance Group, Inc. after this Courts 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 Courts 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 firms
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
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 clients 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 respondents 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 partys name with partys permission, in light
of no prior history of disciplinary action); Matter of Wamsley, 725 N.E.2d 75
(Ind. 2000) (public reprimand for attorneys 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) (attorneys 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.
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.
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.
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.