Michael Smith advises clients with starting up new businesses, with buying and selling businesses, with negotiating contracts, with resolving internal disputes among the owners of businesses, and with protecting the rights of businesses and business owners through litigation. He also represents clients in appeals, both civil and criminal, and in seeking post-conviction remedies.
Mike was born and raised in Tennessee but has been a Hoosier for most of his life. He moved to Indiana in 1978 after receiving a B.E. in chemical engineering (summa cum laude) from Vanderbilt University to work for Eli Lilly and Company in Lafayette, Indiana, and to obtain a master degree from Purdue University. In 1989 he enrolled in law school while continuing to work full time at Lilly, obtaining a J.D. (summa cum laude) from the Indiana University Robert H. McKinney School of Law in 1993. He then moved to the Lilly Law Division, working first in the Environmental Law Group, and then in Securities and Commercial Transactions. While he was in the Law Division, he organized and led the Lilly Law Divison Pro Bono program. In 2008, he elected to retire from Lilly early to open a business law practice in Fishers, Indiana, originally known as Michael Smith Law Office, LLC and later as Smith Rayl Law Office, LLC. In 2018, he and his partner, Susan Rayl, joined with attorneys Joel Hand, Rachelle Ponist, and Valerie Horvath in forming Hand, Ponist, Horvath, Smith & Rayl, LLC. His recreational interests include backpacking and woodworking with hand tools.
- Business Law
- Estate Planning
- Securities Law
- Appeals & Appellate
- Limited Liability Companies
- Nonprofit Organizations
- Credit Cards Accepted
Visa, MasterCard, Discover
- D.C. Circuit
- U.S. District Court, Northern District of Indiana
- U.S. District Court, Southern District of Indiana
- English: Spoken, Written
- Hand Ponist Horvath Smith & Rayl, LLC
- - Current
- Hand Ponist Horvath Smith & Rayl, LLC
- Originally Michael Smith Law Office, LLC
- Adjunct Professor
- Indiana University School of Law -- Indianapolis
- Taught Contract Drafting to law students
- Contract Attorney
- Community Development Law Center
- Adjunct Professor
- Indiana University School of Law -- Indianapolis
- Conducted the Nonprofit Externship Program for law students at the Community Development Law Center.
- Eli Lilly and Company
- For more than fourteen years, Michael Ray Smith was in-house counsel for Eli Lilly and Company. While in Lilly's law division, Mike worked in the environmental legal department, in the office of the corporate secretary, and, for the last ten years, in the commercial transactions group. While in commercial transactions, Mike supported the Company's global sourcing operations, writing and negotiating contracts for all manner of goods and services, including a $1.3 billion energy management outsourcing transaction.
- Indiana University Robert H. McKinney School of Law
- J.D. (1993) | Law
- Honors: summa cum laude
- Activities: Note Development Editor, Indiana Law Review
- Purdue University - Purdue University
- M.S. (1982) | Chemical Engineering
- Activities: Research in the possible application of ion exchange technology in artificial kidneys.
- Vanderbilt University
- B.E. (1978) | Chemical Engineering
- Honors: summa cum laude
- Heartland Pro Bono Award
- Heartland Pro Bono Council
- Indiana State Bar Association
- American Institute of Chemical Engineers
- Yes, Your LLC Needs an Operating Agreement
- Fishers Business Insider
- Limiting the Discretion of the Administrator of Poor Relief in Indiana
- Indiana Law Review
- Advising Closely Held For-Profit Businesses, Annual CLE Conference, Rochester, IN
- Fulton County Bar Association
- Michael Ray Smith's Website Profile
- Hand Ponist Horvath Smith & Rayl, LLC Business Law Website
- Hand Ponist Horvath Smith & Rayl, LLC Main Website
- Indiana Business Law Blog
- Small Businesses Receive Help with Coronavirus Paid Leave
26 March 2020
- Small Businesses Must Pay Employees for Coronavirus Absence
23 March 2020
- Deceptive Consumer Sales Act Does Not Apply
4 December 2019
- Land Contract or Residential Lease?
20 September 2019
- Veil Piercing: Plaintiff Left With No Recourse, and That’s Okay
25 November 2018
- Homeowners’ Associations and Election Signs
5 October 2018
- History of the Johnson Amendment
2 October 2018
- Defend Trade Secrets Act: Are Your Employment Agreements Up to Date?
3 September 2018
- Revised Policy on the Use of Unpaid Interns
20 August 2018
- Q. Is a shareholder liable to conflict of interest if he is not a director?
- A: That’s a very interesting question. A partner in a partnership has a fiduciary duty that would be breached by that sort of act, but generally shareholders of a corporation do not owe each other that sort of fiduciary duty. However, in some states the shareholders in closely held corporations do have that sort of duty to each other. Note that the relevant state is the one in which the corporation is incorporated. It’s worth a call to a lawyer who is familiar with corporate law in that state to find out.
- Q. We live in Indiana and wish to do a transfer on death deed We are husband and wife ownership
- A: You can search for a lawyer by clicking on "Find a Lawyer" at the top of the page. If you wish to contact our firm, you can click on my name to get our contact information.
- Q. We live in Indiana and my wife and I wish to add beneficiaries on our house How is that done?
- A: Your question leaves out a lot of information that a lawyer will need to give you definitive advice, but the first thing that comes to mind as something that may meet your goals is a transfer-on-death deed.
- Q. Can Medicaid take my house? Or anyone else?
- A: If the deed is to you and your grandmother as joint tenants with right to survivorship, you own half of the property (the house and lot) and your grandmother owns half of the property. That's called an undivided interest because each of you has equal rights to the entire property. Indiana law gives each of the joint tenants a right to ask a court to "partition" the property, which is apparently what your aunt has done on behalf of your grandmother. After the lawsuit is filed, the court will order the parties to participate in mediation in an attempt to reach a mutually agreeable resolution. If that fails, the court can order the property to be sold, with the proceeds applied to any mortgage, back taxes, etc., and the rest of the proceeds being divided among the parties. I wouldn't be so quick to assume your aunt is lying about your grandmother needing the money to pay for a nursing home. In fact, I wouldn't be surprised if her one-half ownership of the property is prohibiting her from qualifying for Medicaid. If so, she may need to sell the property and "spend down" the proceeds of the sale before Medicaid will pay for a nursing home. Rather than spending a lot of time, effort, and money fighting with your aunt, I'd encourage you to talk to her about seeing an elder law attorney to see if there are ways to preserve some of your grandmother's assets so she doesn't have to spend it all down to qualify for Medicaid. Of course, I can't say what your aunt's true motives are. I'm just encouraging you to see if there are ways you can work with her rather than fight her, if you haven't already done so. Unless there are other facts that you didn't mention, I don't see you winning an attempt to keep the house for yourself by fighting the partition action. Other attorneys may see it differently.
- Q. We have a contract to buy a home on contract. We have paid it off but the owner refuses to sign over deed. Next step?
- A: You should consult an attorney for advice on exactly how you want to proceed, but I can give you some general information about this type of case and some of the options you may have. Let's take it a step at a time. First, to kick you out the seller will need a court order. To do get a order, the seller will have to show the court that the seller has the right to possess the property (i.e., that you've defaulted on the land contract), and the seller won't be able to meet that burden if you've met all the contract obligations. If the seller does go to court to get an order, you will get notice so you can appear in court to defend your rights. Second, even if the seller could show that you've defaulted under the land contract, the law provides some protection for people who breach a land contract after they've paid a substantial amount on it. At one time, if you breached a land contract before the entire amount was paid off, you could lose the property and everything you've put into it. Now, situations like the one you describe are treated more like a mortgage foreclosure; the seller can sell the property to someone else and apply the proceeds toward the amount you owe, with you having the right to receive proceeds in excess of the amount you owe. In other words, under the old system a land contract purchaser had no equity in the property until it was paid in full; that's different now. Third, if the seller takes you to court, it will give you the opportunity to file a counterclaim asking the court to perfect the transfer title to the property to you on the grounds that you've paid the full purchase price. Fourth, you could preemptively file a lawsuit against the seller asking the court to perfect the transfer of title to you. Again, this is just a general outline of the issues in this sort of case, and you should contact an attorney who practices real estate law to get advice on your particular situation.
- Q. 3 years left in my lease but I want out!
- A: I sometimes tell my business clients that they need a lawyer, an accountant, an insurance broker, and maybe a banker and that they should never trust one of them to do the job of another. I tell them I can't tell them what insurance policy to buy, and they shouldn't get their legal advice from their accountant....or in this case a banker. I respectfully disagree with your loan officer's opinion. Long term leases are no less enforceable than any other. The only difference I can think of is that an oral agreement may work for a short term lease, but a long term lease may need to be in writing. Technically, a lease with a term of over three years is supposed to be recorded, but that doesn't have any practical significance unless the landlord sells the property. Unfortunately, I can't tell you whether you have a way out of this particular lease based solely on the information in your question. For that, you'll need to consult a lawyer who will need more information, including a copy of the lease. That said, you should consider the possibility of negotiating a mutually agreeable termination of the lease, particularly given that your landlord is a friend. Even if you have a right to terminate unilaterally, doing it by mutual agreement could go a long way toward preserving the friendship.
- Q. For Indiana, what is the legal distinction between breach of contract and fraud?
- A: I'm not sure this is a matter for law enforcement. This sounds more like a civil matter than criminal fraud. There might or might not be a civil tort claim for fraud, but the fact that the seller had a lawyer contact your mother makes this sound more like a case of "seller's remorse" than fraud. You could try reporting it to the local police or sheriff, but I think your mother is likely to have more success with a civil lawsuit than criminal charges. You're correct that the title company can't force the seller to sign a deed, but a court can issue an order that, by one means or another, will clear up the title record to show that your mother owns the property. She should consult an attorney about filing a lawsuit to do that. There's another alternative suggested by the fact that the seller had an attorney contact your mother. Unless your mother is simply dead set on owning the property no matter what, she may want to investigate the possibility that the seller will pay more to keep the property than your mother paid the seller to buy it. In other words, your mother may be able to effectively sell the property back at a profit. Again, she should consult an attorney for advice.
- Q. Hi, I have signed a partnership on an LLC with another partner 50/50 but we have not filed anything with the IRS.
- A: To find out if the documents you've signed are valid and actually make you a member of the LLC or give you any interest in the LLC, you'll need to consult an Illinois business law attorney who will need to see the documents. However, no documents need to be filed with the IRS to create a limited liability company, to add a member to an existing LLC, or to transfer interest in an LLC. Those are matters of state law, not federal tax law. There are no IRS filings required to make those actions effective. There may, nonetheless, be IRS filings (and state tax filings, for that matter) that must be or should be made. For example, if it's a new LLC, it will need to obtain a federal tax id (called an employer identification number or EIN, even if the LLC has no employees) from the IRS. If it is an existing LLC, the LLC may need to submit a form to the IRS to make sure it is taxed the way you want it to be taxed (for example, if the members want it to be taxed as an S-corp instead of a partnership). And then, of course, there will be tax returns to file later. But all those filings deal only with federal taxes. They need to be done correctly for tax purposes, but they don't affect the validity of the formation of an LLC, the addition of a new member to an existing LLC, or the transfer of LLC interest. Bottom line: To get a complete answer to your question, you need to contact an Illinois business law attorney.
- Q. Can two businesses use similar names?
- A: Your question involves two different issues: trademarks and the names of entities. First, let's talk about trademark rights. The essence of a trademark is to identify the source of goods or services. Trademark infringement occurs when one mark used in connection with goods or services (whether or not the mark is the company's name) is likely to cause confusion or mistake about the source of the goods. In other words, if I use a mark in connection with goods that I manufacture that is similar enough to your trademark to cause people to mistake my goods for yours, then my mark infringes yours (or maybe yours infringes mine, depending on who acquired the rights first). Two marks do not have to be identical for one to infringe the other. However, I can use a trademark on my goods that is similar to your mark if the goods that I produce and sell are very different from the goods that you produce and sell simply because there is no likelihood that people will be misled into thinking that you are the source of my goods or vice versa. Now let's talk about company names. Generally, two companies organized in the same state cannot have names that are indistinguishable. The rules for deciding if two names are distinguishable vary a bit from state to state, but generally even a relatively small difference can make two names distinguishable. For example, Aftermath Cleanup Unit, LLC might be considered distinguishable from Aftermath Cleanup, LLC. As far as I know, there are no states in which the Secretary of State (or equivalent state official) considers trademark rights in deciding whether two company names are distinguishable. So it would be entirely possible for one company to have a name that infringes the trademark rights of another. In addition, a Secretary of State or equivalent official considers only other companies that are organized in that particular state (and probably companies that are organized in another state but registered to do business in that particular state). So it is entirely possible for two companies, organized in two different states, to have identical names. However, the Secretary of State does not consider the type of goods or services the new company will sell. That means you may be precluded from using a name for your company because it is indistinguishable from the name of another company, even if no trademark infringement would occur because there is no chance that the goods or services of one company would be confused with the goods or services of the other. That's why it is not enough to check the Secretary of State's records to see if the name you want to use for your new company is available in that state. You should also consider whether the name you want to use may infringe someone else's trademark, and that's a very different inquiry. All that being said, I cannot advise you if your company name infringes a trademark of the company that contacted you, but because trademark infringement can result in significant liability, you should take the claim seriously and contact a lawyer who practices trademark law.