Yet the Connecticut Disciplinary Counsel, in its Order of Probable Cause and Complaint (H/T to Ben Glass of Great Legal Marketing for publicizing the order) against five innocent lawyers who participated in the Total Bankruptcy.com cooperative advertising website (one lawyer for just a scant two months) thinks otherwise – that John and Jane Consumers are really John and Jane Morons. To the Connecticut Disciplinary Counsel, systems like TotalAttorneys subject consumers to “corrupt” and “abusive” practices (Order at 13), “capitalizes on the financially insecure consumer’s fear of debt, poor credit rating and shame” and “intrude on the “sacred territory between lawyers and their clients.” (Order at 14).Since I’m not a regular aficionado of marketing blogs, and most of them try to shut the door when they see me coming since I rarely have nice things to say about them, it’s no surprise that I hadn’t heard of the plight of these “five innocent lawyers.” I had, however, been aware of the Connecticut Disciplinary Counsel’s investigation of Total Attorneys.
Carolyn has offered a paradigm of John and Jane Consumers enjoying the benefits of access to lawyers through Total Attorneys, and challenged the Disciplinary Counsel’s actions because no consumers were hurt in the making of this marketing strategy. That’s one way to look at it. Here’s another.
You’re a lawyer. You receive a telephone call from a for-profit company offering to feed you clients who visit the company’s web site seeking legal help. In exchange, you pay a fee for every consumer who contacts you. The company markets itself as a lawyer advertising site and claims the fee is used to cover operational costs and support services. But disciplinary officials, in Connecticut at least, think the agreement might be an example of paying for referrals, which is a felony offense in the state. The question of what constitutes ethical and legal Internet advertising of attorney services is back in the spotlight after local grievance panels recently found probable cause against two Connecticut attorneys who entered into business agreements with a Chicago-based company.
Of course, the focus is on Total Attorneys rather than the lawyers who put aside good judgment to become a party to this scheme. I agree with Carolyn that the Connecticut 5 are being made the scapegoats for a much, much larger problem. I don’t care for scapegoating, and don’t see how one can distinguish what these five lawyers have done from what is happening across the country with Total Attorneys and others, a whole industry that has arisen to feed cases to desperate lawyers under some variation of fee splitting.
But the real problem is captured best in a comment to Carolyn’s post:
Tracy Thrower Conyers – November 3, 2009 4:49 PMWhy is nobody stepping up? Because lawyers don’t understand (and don’t want to understand) Internet marketing and PPC strategies. Combine that with the fact that too little has been written about the ethics of web 2.0, and that nobody seems to want to step up and translate outdated ethical considerations to modern day technology. It’s a heavy combination of sad events for our five hapless pioneers. Hats off to you, Caroline, for stepping into the chasm and shining a little light.
Forget about all those cannons of ethics,codes of professional responsibility. That was so yesterday, so client-centric. We’re now in the age of Web 2.0, and it’s all about how technology can be used for lawyers to hear the sound of cha-ching. Our new ethos is profit, and our only discipline is doing whatever we have to do to get it.
There is a war being fought right in front of us. On one side is a tidal wave of newly established lawyer marketing businesses, deluging us with the promise of clients, money and success. On the other is the stodgy old world of hard work, competence and dignity. The problem with the latter is that it offers no promise of making the practitioner’s telephone ring. The marketers think they are very dignified, and take umbrage at the suggestion that their hair extensions are askew. Given the range of miniskirts available to marketers, some certainly are far more dignified than others. That’s feint praise.
The other side of equation is exemplified by my good buddy, Dan Hull at What About Clients? Despite Dan’s having suffered horrendous disfigurement in an unfortunate kiln explosion as an undergrad, he’s never forgotten as a lawyer that his only justification for accepting a dime is to serve his clients. And that dime can never be shared with any marketer, any business, for routing consumers his way. They come to him because of his reputation for skilled lawyers and his dedication to client service.
This battle has nothing to do with the five lawyers in Connecticut who have been placed in the town square to be used as examples of what will happen to you by succumbing to the lure of the marketers. This is a huge battle, taking place everywhere and clouding the eyes of otherwise good, but hungry, lawyers who have been blinded to the meaning of professionalism by the nagging pain in their bellies.
I cannot agree with Carolyn’s assessment that businesses like Total Attorneys are benign. They are a cancer in the legal profession, and one that happily infects far too many lawyers who are desperate for business. But I do agree that the five lawyers in Connecticut shouldn’t be flogged as the scapegoats for this much bigger problem. We must deal with the disease, not the symptom. Free the Connecticut 5! Total Attorneys is another story.
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Why is paying for referrals a felony? It seems to me to be a civil not a criminal infraction.
By the way I thought “feint praise” was a nice touch.
That’s a very good question, and I don’t know the answer. A violation of disciplinary rules, in itself, is understandable, but a crime, a felony no less, seem far beyond the pale. If a client is defrauded in the process, then let the lawyer be prosecuted for that, but fee-splitting is not inherently fraudulent.
Even homely guys can be of service. Thank for the kind words. Query: Are Clients Important Yet? Or are they still Just the Equipment? Call me when it happens; we’ll celebrate.
I never mentioned what part of your body was horribly disfigured, Stubby.
There’s a CT statute that makes use of runners and cappers by attorneys a felony. The bar ignores the fact that this law (which predates Bates v. Arizona) only applies to in-person solicitation.
In Manhattan, the preference is for hot dog vendors. In Houston, it’s cab drivers. Diversity is what makes this nation great.
Scott,
I go back and forth on services like Total Attorneys all the time. On the one hand, I can see how it might be viewed as a “pay for referral” and if that’s the case, CT would be justified in banning the service (prospectively). On the other hand, there are so many other similar schemes like pay for click and frankly, I would prefer to see them regulated either by regular law (e.g., under consumer statutes if services are fraudulent) or by market forces (by showing lawyers that many of these marketing schemes are a waste of money).
But again – my point (which you acknowledge) is that lawyers should not be penalized when the law is unclear. With social media and online advertising, much of what we do is unchartered. Certainly, there are some obvious common sense ethics rules that apply (e.g, don’t post false information about yourself on Linked-In or spam Twitter with solicitations) – but sometimes, the rules are unclear. And to make matters worse, many bars do not make their opinions readily accessible so even well intentioned lawyers who want to research on their own are not able to do so.
In addition, I do think that the fact that Total Attorneys advertising with the ABA gives it added credibility. After all, doesn’t a lawyer have a reasonable expectation that the ABA’s sponsors are engaged in ethical conduct? I think that both the ABA and TotalBankruptcy should be doing more to help these lawyers.
I think you are absolutely right about the ABA taking advertising from Total Attorneys (and man, do they ever advertise on the ABA journal website, especially the legal rebels pages) is an implicit endorsement. Ed Adams’ comment to your post was nonresponsive and disingenuous; you can’t take their cash and then claim you don’t know nothin’ about birthin’ no babies. While it isn’t the ABAs job to police the profession, they cannot claim the ethical high ground while taking money from a business like Total Attorneys. It’s embarrassing and absurd.
“But again – my point (which you acknowledge) is that lawyers should not be penalized when the law is unclear.”
The Doctrine of Lenity being applied to lawyers? Why, if that were to happen, it might get applied to us common ruck, too. 🙂
(Yeah, I know this crowd is likely to be in favor of it, in both sorts of cases. But…)
I agree. As soon as marketers put themselves (or their websites) as the contact point for legal services, there’s a problem. Lawyers & firms need to be the public facing entity, and shouldn’t triage the intake process. Some will argue that referrals aren’t an intake, but as soon as someone’s telling a non-lawyer about their legal problem, and expecting guidance – there’s an ethical concern. $$$ exchanging hands is the killer, and hiding behind the so-called complexities of web 2.0 doesn’t cut it.
Rule of Lenity? You scare me sometimes.
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This post was mentioned on Twitter by montserratlj: Legal ethics in a Web 2.0 world. Save the Connecticut 5? (@ScottGreenfield): http://bit.ly/2uV12Z
That’s it. We’re not taking showers together anymore.
The Connecticut 5 get a, “Meh.”
The rule itself seems stupid. Many legal ethics rules don’t make much sense. Nevertheless, I learned in Legal Ethics in law school – and then again when preparing for the MPRE – that you can’t pay a non-lawyer for a referral.
If one lacks the analytical ability to conclude that paying someone for a client is a paying for a referral…Why exactly should I be outraged?
If lawyers don’t like the rules, then change ’em. Challenge them in court. Don’t break them and then come crying about the grave injustice you suffered.
Heck, paying for a referral is not a major issue of justice. Some of the legal marketers are acting as if those lawyers (even calling them the “Connecticut 5” acts if they are a group suffering an injustice!) fall into Dr. King or Thoreau’s civil disobedience.
Copies of Connecticut Chief Disciplinary Counsel’s pre-hearing brief and other papers can be found here.
I would also call your attentions to my Pre-Hearing Memorandum (which appears on the same site just above the CDC memorandum). The Pre-Hearing memorandum represents my first comprehensive dismantling of Total Attorney’s legal arguments since the original complaint issued. It is rated “M” for mature (so if harsh words and adult subject matter offends you, you might want to skip this brief). Otherwise, bust out the popcorn (and enjoy).
Best Regards ~ Zenas Zelotes, Esq.
Did you file in Texas as well?