Refer Or Recommend: The Total Attorneys Loophole

Almost immediately after  the decision issued granting dismissal of disciplinary charges against the Connecticut 5, Total Attorneys issued a press release proclaiming that the Connecticut Statewide Grievance Committee “validated” its internet advertising model.

Total Attorneys President Kevin Chern says that Connecticut has truly vindicated the company’s Internet advertising model.  “The Committee heard evidence from the state’s Chief Disciplinary Counsel and examined our business model,” he said.  “After carefully considering how consumers reach our sites, what information is collected, how territories are divided and the disclaimers provided for consumers, the Committee determined that we are not recommending attorneys but simply providing advertising.”

While I’m happy for the five lawyers who stood as scapegoats for Total Attorneys, Chern’s proclamation of validation is not merely premature but disingenuous.  So what is it that they did?

Total Attorneys is one of the magic bullet websites that allows lawyers in specific niches to “purchase” territory.  TA works Google to gain prominent page rank so that potential clients go to its websites when they are searching for a lawyer.  The clients put in their zip code and are sent to the lawyer who owns that turf.  In TA lingo, these clients are called “leads”, and the lawyer pays TA $65 for every lead who contacts them, whether they are retained or not.

The decision was based on the distinction between a referral and a recommendation.  The grievance committee found that clients were referred, but not recommended, and hence there was no violation of their disciplinary rules because the rules are limited to recommendations rather than referrals.  That’s one thin reed.

To reach this conclusion, the committee relied largely upon a disclaimer on Total Attorneys’ website claiming that this was not a recommendation.  Disciplinary counsel argued that when one, and only one, lawyer’s name comes up to an inquiring consumer, that’s tantamount to a recommendation.  The committee said no.

The decision states that “territorial exclusivity of the arrangement was not an implied endorsement and that the fees charged . . . were the appropriate costs of advertising on the website.”  The former position is dubious at best.  The latter is facially wrong.

When a potential client asks for the names of lawyers who serve a particular niche, and in return receives one, and only one, name, there can be no clearer message.  This is the lawyer to use.  This one lawyer, because they’ve only been given one lawyer.  No one tells the client that the reason is that the lawyer bought his territory.  There’s no mention of that nasty little detail.  If there was, I suspect clients would run the other way as fast as they could, recognizing how deceptive and manipulative this recommendation referral was.

But to equate paying $65 per lead to the sharing of advertising costs is absurd.  Costs are fixed.  Leads are variable.  To argue otherwise is nonsense.  To believe otherwise is just plain wrong.  The business model of Total Attorneys is to sell “leads,” those nice people who lawyers are supposed to think of as their respected clients.

While Kevin Chern’s claim of “validation” may be seriously overwrought, it’s true that the Total Attorneys advertising model wasn’t condemned.  That being so, buying up some turf from TA (and getting a free pass to the Get A Life Conference) may not result in having your ticket yanked.  But that doesn’t mean that any lawyer with a semblance of integrity or honor can now hook up with TA with a clear conscience.

There are a wealth of opportunities on the internet to engage in conduct that has the potential to bring in a few bucks, at the cost of your integrity.  Some think that words like integrity, not to mention honor, professionalism and excellence, are only used by us dinosaurs.  Bottom feeders are always looking for the get rich quick scheme.  The Slackoisie believe that the practice of law is all about what’s in it for them.  It’s up to each of us to decide what type of lawyer we want to be.  Not just our particular niche of the law, but whether we will do anything for a buck, no matter how slimy or disreputable. 

Just because the Connecticut grievance committee didn’t rule against the five doesn’t mean that we need to race to the bottom.  It’s up to each of us to select our path, high or low.

H/T Kevin O’Keefe

10 thoughts on “Refer Or Recommend: The Total Attorneys Loophole

  1. Sam Glover

    It’s up to each of us to decide what type of lawyer we want to be.

    Doesn’t this have more to do with how we serve our clients than with how we get our clients?

  2. SHG

    I don’t think so.  Character isn’t something you turn on and off.  It’s something you either have or don’t, and it cuts across everything you do.  If your approach to the law is one of honor and integrity, then it will apply both to how we get our clients as well as how we serve them. 

  3. Jamie

    “Character isn’t something you turn on and off. It’s something you either have or don’t, and it cuts across everything you do.”

    One minute I’m reading the comments, the next I’m flashing back to every prosecutor’s argument at sentencing…

  4. Carolyn Elefant

    I used the TA site and to me, the disclaimers were pretty clear. It said that it is paid Attorney Advertising, that lawyers are sponsors and that the site is not making any recommendations (I think that your proposed disclaimer is also perfectly reasonable). I also disagreed with the TA’s briefs, suggesting that this was some kind of First Amendment issue. This type of site is advertising plain and simple and thus, not entitled to the same degree of protection as, for example, a real blog (not a marketing blog but an information/opinion only blog).
    Having said that, I am of mixed views on this type of advertising. On the one hand, I do agree that the best way to find clients is to do great work, excel and build a reputation that leads to word of mouth referral from clients, other lawyers and even judges.
    On the other hand, the reality is that many lawyers do advertise heavily and sadly, many clients are lured by those ads. For example, if you google the term “billboard lawyer,” you’ll come up with a bunch of posts by other lawyers attesting to the general incompetence of this class of lawyers. And yet, because the billboard firms have money to post their face all over town, they’re able to attract clients away from other lawyers who might be more competent but simply don’t have the ad budget to compete.
    Though I don’t like Total Attorneys, in some ways I see it as the lesser of two evils. There will always be law firms that have the money to pay for SEO and run costly ad campaigns. This firm, for example – – puts millions of dollars into Internet and TV ads each year and then refers cases to local lawyers and takes a cut (does so ethically apparently by coming on board as co-counsel in each case to avoid the ban on referral fees that otherwise exists). And it’s all perfectly legal – no ethics rules violated.
    We can call TA and similarly structured services unethical referral services or for-fee recommendation and shut them down. But all that means is that smaller lawyers who are participating will likely not be able to mount an Internet campaign that will allow them to compete with the “big boys.” Internet advertising won’t go away – just this particular type.

  5. SHG

    That’s the beauty of low priced lawyer marketing schemes.  It let’s everybody participate in the race to the bottom.

  6. bob

    All of this criticism is to say nothing of increased consumer access to legal resources and information. How did it become unethical for a professional to advertise their services?

    No, there is not a merit threshold to be crossed in order to advertise. However, the attorneys who participate in networks like TA’s must rely on their merit in order to retain clients. If they don’t retain clients, they can’t afford the service.

    I don’t understand the equation between a business (as honorable a profession as law is, it is still a business, keep in mind) advertising their service and an attorney throwing character and honor out the window.

    Should attorneys just rely on walk-in traffic in order to maintain their dignity?

  7. SHG

    If this was just about advertising, that would be one conversation.  But this isn’t about advertising at all, but about selling terroritory to lawyers without disclosing the fact to potential clients, who are mislead into believing that they are being sent to a wonderful lawyer when all they are getting is steered to the lawyer who has paid to own their zip code.  Since when does misleading clients equate with providing increased consumer access?  That’s pure marketing crap, the sort of self-justifying BS that lawyers buy into to justify their putting on hot pants and walking the street.

    As for why the legal profession isn’t the same as a used car lot, if you need an expalantion, then you’re in the wrong profession. 

    As for whether lawyers should rely on walk-ins, here’s a surprise.  Do great work and your reputtion will spread far and wide by word of mouth.  Do crap work and hopefully no one will ever walk in your door.  Advertise on the internet and even the worst attorney can make himself sound as if he’s Benjamin Cardozo.  Tell me again how this is all about clients?

  8. bob

    “But this isn’t about advertising at all, but about selling terroritory to lawyers without disclosing the fact to potential clients, who are mislead into believing that they are being sent to a wonderful lawyer when all they are getting is steered to the lawyer who has paid to own their zip code.”

    See Carolyn’s statements on the disclaimers above. Nobody’s being mislead. Here’s wht it says at the bottom of

    “PAID ATTORNEY ADVERTISEMENT: This Web site is a group advertisement. It is not a lawyer referral service or prepaid legal services plan. Total Bankruptcy is not a law firm. The sole basis for the inclusion of the participating lawyers or law firms is the payment of a fee for exclusive geographical advertising rights. Total Bankruptcy does not endorse or recommend any lawyer or law firm who participates in the network. It does not make any representation and has not made any judgment as to the qualifications, expertise or credentials of any participating lawyer.”

    How is that misleading?

    Where’s the high-minded condemnation of attorneys who’ve advertised in the Yellow Pages? Is the attorney who’s on the back page of the Yellow Pages in full color being recommended by them? How about the top listing in a directory service like or

    Why not do great work and advertise that fact? Word of mouth is great advertising, of course, but it require a good number of mouths if you want to stay in business.

    Consider a common recent example: An attorney leaves a large firm to start his own solo practice. How does that attorney rely on word of mouth and still pay the bills necessary to get a new company on its feet?

    You seem to equate advertising with used car sales, which makes your distaste for ir understandable, if a bit misguided.

    There are many dishonorable attorneys who advertise, to be sure. There are also many dishonorable attorneys who don’t. You correctly state that it’s up to each lawyer to decide what type of lawyer they want to be. My point is that choosing to advertise doesn’t make that determination.

    There doesn’t have to be a false choice between honor and unemployment.

  9. SHG

    You’ve got to be joking. You can’t even find the disclaimer (as if anybody would read it) because you have to scroll down three pages, and then it’s off the white area into the bottom margin. This is nothing like the yellow pages, which is obviously an advertisement as no one suspects that being in the yellow pages is an endorsement by the phone company .  This is a deliberate effort to create a misimprression and to mislead.   Even if the disclaimer could be found, it’s absurd to argue that consumers would ignore all the careful marketing sweet-talk and read the disclaimer. 

    Spare me your sanctimony about how wonderful lawyers have some right to deceive potential clients to let the world know they’re wonderful.  You want to make yourself feel better for behaving like scum?  Do it elsewhere.

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