Sometimes lawyers make unpopular decisions to represent clients who will become — or are already — the subject of ridicule and blame. Yet, deep down we believe that we are doing the right thing by accepting the task of representation, and we are willing to embrace the consequences that may result from working with controversial figures.
On the morning of July 15, I was retained by Philip Martin McCaulay, an actuary based in Alexandria, Virginia. McCaulay has become infamous for registering and applying for a number of “Washington” related trademarks, any one of which could turn out to be a mark that the Washington NFL team (still branded as the Redskins, but with a stated intention to rebrand upon the conclusion of a pending review that has no end date) selects for future use.
McCaulay fits the description of being a controversial client. When McCaulay asked me for assistance, he referenced the terrible threats and harassment he was receiving from fans of the Washington NFL team and the public at large. It led to McCaulay tweeting, “Speculate on prior motives all you want if you don’t believe I just wanted them to change the name, now [I] just want this albatross around my neck gone.”
McCaulay was a man who lived in relative obscurity. Overnight, he has been thrust into the spotlight as people started to speculate about the forthcoming new nickname for the Washington NFL team and quickly discovered that McCaulay was attached to many pending trademark applications for names such as Washington Redtails and Washington Red Wolves.
Prior to June 24, McCaulay had only published four tweets, all of which were circulated in 2014. All of a sudden, McCaulay was the victim of a barrage of verbal attacks on the social media platform. He felt overwhelmed and did not know how to properly handle the situation. I am still working with McCaulay to better understand Twitter best practices as he receives a new mention by the minute.
In my diligence, I noted that McCaulay previously tried to communicate with the National Football League, offering any of his pending or registered marks for free. He even asked, “Are you waiting for me to offer to pay you to take them off my hands?”
McCaulay is clearly an individual who was — and continues to be — misunderstood. Thus, McCaulay hired my law firm to assist him in an effort to clear the record as to his intentions and with an interest in getting the word out to decision makers at the Washington NFL team about his interest in not holding up the franchise’s name selection process.
At noon on July 15, I disseminated a letter with the hope that it would clear the air as to who McCaulay is and what he stands for. McCaulay is a man with an expensive hobby of filing trademark applications and actually using the marks in connection with the goods and services stated in the descriptions of the applications. He is someone who has no desire to be a “trademark troll”; he will get out of the Washington NFL team’s way as soon as the team contacts him (if it decides to rebrand with any of the marks that McCaulay has sought to register). I see no reason why he should abandon any pending trademark applications that are of no interest to the Washington NFL team.
Many fans have criticized me in the 24 hours since I was retained by McCaulay. As lawyers, we must have thick skin and stand firm if we believe in our causes. Before I met McCaulay, I figured he was just another trademark troll. However, after conducting my diligence, I learned that he is not a bad actor; he has no intent to cause harm to the Washington NFL team. Instead, he is exactly the type of person who requires strong representation to explain his position and interests.
Not all represented clients are looking for a payday. While I am certain that McCaulay would not reject an offer of compensation for any of the intellectual property he possesses, it is my understanding that compensation is far from his main priority.
McCaulay should be a reminder to the masses that it is lazy to judge a book by its cover. Sometimes acts are not motivated by greed, and sometimes lawyers get involved in issues because they believe it is the right thing to do in order to assist a client in desperate need. When I heard that McCaulay greatly wanted the albatross around his neck gone, I was committed to do whatever is necessary to be of service, even if it meant shifting the Twitter attacks to yours truly.
Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.