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Why Isn’t Anyone Speaking for the Five Solos Targeted by the Connecticut Disciplinary Counsel’s Attack on So-Called Referral Services?

by Carolyn Elefant on November 3, 2009 · 14 comments

in Ethics & Malpractice Issues, Legal Profession Trends

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So, let’s say that a typical consumer – we’ll call her Jane Consumer – in Connecticut finds herself hounded by creditors and deeply in debt.  Jane’s heard that bankruptcy might help but she doesn’t know if it’s right for her.  After all, Jane Consumer is no deadbeat.  She’s always paid her debts, but with limited health insurance benefits, an unemployed spouse and a child with learning disabilities, she’s fallen on hard times.  Jane is so ashamed of her predicament that she won’t share her troubles with friends or family.  Instead, she decides to turn to the Internet to find a lawyer who can educate her about her options.

Because Jane doesn’t know for sure that she needs to hire a bankruptcy lawyer, she doesn’t start with the phone book but instead, goes to Google and search the terms “Connecticut filing for bankruptcy lawyer.”  Jane figures that will give her information about her options.  Jane’s search generates a bunch of website links, including one by a company called Total Bankruptcy and another site called Clear Bankruptcy.com. But neither site seems particularly specific to Connecticut, nor do they assure Jane a free consult.  So Jane bypasses the TotalBankruptcy and ClearBankruptcy sites in favor of this website by a local attorney who has a bunch of easy to read FAQs.  Jane looks through a few other sites on the Google results list, then calls around until she’s secured a free consult.

Interestingly, at no point do any of Jane’s Google searches lead to any of the sites run by a state bar referral program.  Moreover, even if Jane had come across, for example, the New Haven Bar referral site, it’s doubtful that she’d have spent any time there because it doesn’t have any bankruptcy related resources.  In addition, the $35 fee to meet with a lawyer is a turn-off to Jane; given her financial state, only a free consult will do.

DISCIPLINARY COUNSEL THINKS THAT JANE CONSUMER IS JANE MORON.

I think that I’ve accurately described the process by which a typical consumer might use the Internet to find legal assistance.  Wouldn’t you agree?  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 finacally 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).  The consumer I described – who again, is pretty typical – doesn’t seem to have been abused or duped by TotalBankruptcy.  To be sure, Jane is ashamed – that’s why she turned to the Internet.  But Jane’s panic doesn’t sap her of her sensibilities.  In fact, that’s why the TotalBankruptcy or Clearbankruptcy sites didn’t even appeal to our hypothetical Jane Consumer:   it wasn’t state specific and didn’t ensure that she could get a free consultation.  TotalBankruptcy.com didn’t give Jane Consumer what she wanted, so she moved on.  She doesn’t sound victimized to me.

Meanwhile, the Connecticut Displinary Counsel believes that consumers are better served by “qualified non-profit lawyer referral services” that serve as neutral porals for the public seeking to find legal representation.” (Order at 12).  Perhaps that’s true, but in order for these sites to serve consumers, then consumers need to be able to find them.  Our Jane Consumer never came across this site in her search – and even if she had, it didn’t have enough resources to keep her attention or to give her what she’s after, which is an education about her options.  Plus, the bar referral services cost $35 while Jane was adamant about a free consult.  In short, the bar referral did not serve her needs.  Disciplinary Counsel’s Jane Moron might have been willing to shell out 35 bucks for referral to an unknown lawyer recommended by an esteemed and respected bar association, but Jane Consumer is a bit more savvy than that.

DISCIPLINARY COUNSEL’S REAL GRIPE ABOUT TOTALBANKRUPTCY ISN’T CONSUMER PROTECTION, BUT MONEY.

By now, I think I’ve established that the Connecticut Disciplinary Counsel’s assault on five innocent lawyers isn’t about protecting or educating consumers.  So what’s really going on here?  Disciplinary Counsel makes it crystal clear:  money.

For starters, Disciplinary Counsel opinion details the cost of participating in TotalBankruptcy: $750/month for 30 leads (with pro rated refunds for fewer received) (Order at 4), $40 for use of client management and call center and $65 for each contact generated.  Pricey?  No doubt.  (Personally, I find these services to be a waste of money, but if they’re providing results to lawyers, more power to them.  Plus, I do credit TotalBankruptcy with structuring the system so that lawyers are not locked in and can get a reduction if the service doesn’t produce the promised results).

But how much does Disciplinary Counsel think it costs to advertise in the Yellow Pages (where lawyers lock in for one or two year contracts, with no refunds allowed) or invest in a robust Google ads campaign?  Many of the firms who engage in these comparable services pay as much or more than what TotalBankruptcy charges (incidentally, the Disciplinary Counsel order was co-authored by two interns who are probably unfamiliar with how much any kinds of marketing efforts can cost and were likely horrified by the $750 figure).

In any event, when it comes to for-fee referrals, Disciplinary Counsel views the matter as one of degree.  The reason that Disciplinary Counsel found that Google Ads (also pay per click) pass muster but TotalBankruptcy’s scheme does not is because:

Total Bankruptcy charges far more than simply a click….In true pay for click schems, the fractional charges are tiny.  Total Bankruptcy’s charges are robust…For the price of having a call referred from Chicago to New London or New Haven, the attorney pays a hefty price.”

The Disciplinary Counsel concludes that “pay per click” terminology cannot change a referral system into a valid and ethical advertising system.”  (Order at 11).  At the same time,  the cost of acquiring a lead cannot legitimatize an otherwise unethical system.  Either pay per click is unethical or it is not, irrespective of whether the click (or lead) costs five cents (and indeed, back in 2006, mesothelioma attorney cost $54.33, just shy of TotalBankruptcy’s $65 price tag) or five thousand dollars.

At the end of the day, Disciplinary Counsel is seething that profit-seeking third parties are providing a service that the Bars should have provided years ago but failed to do so.  (Order at 14).  The Internet has played a central role in lawyer marketing efforts for at least a dozen years now.  The Connecticut Bar could have allowed lawyers to list websites online, could have sponsored educational websites with attorney ads, could have undertaken many activities to provide educational resources to consumers and to publicize lawyers’ activities.  Instead, the Connecticut Bar did nothing; it sat back and opened the doors to third parties to come in and capitalize on the void.  The bars reacted similarly two years ago when Avvo launched its services.  Yet now that someone is providing a service at a profit, the bars are up in arms, trying to protect turf that they willingly abandoned long ago.

WHY ISN’T ANYONE – INCLUDING THE ABA, WHICH TAKES MONEY FROM TOTALATTORNEYS, STICKING UP FOR THESE FIVE LAWYERS?

What burns me most about the Connecticut Disciplinary Counsel’s complaint, however, is that five innocent lawyers are being hung out to dry.  Remember back in the blogosphere of old when the Kentucky bar tried to claim that Ben Cowgill’s blog was a form of advertising and he’d have to pay $50 every time he posted – and how the blogosphere leapt to his defense?  True, blogs present a clearer First Amendment issue, so I wouldn’t necessarily expect those who supported Cowgill to take on this fight.  At the same time, the blogosphere has also changed; it’s rare to see bloggers take up a cause anymore and always welcome and refreshing when they do.  With TotalBankruptcy.com, I suspect that too many solo bloggers have too much invested in their own business models or practices to do anything that might help a third party that hasn’t helped them.  But for me, this isn’t about TotalBankruptcy; it’s about five lawyers – five well intentioned solo and small firm lawyers – with their licenses and reputations on the line.

Of course, for the more scholarly inclined, there are also Commerce Clause issues here as well.  One of the attorneys involved is licensed in Massachusetts and maintains an office there.  If Massachusetts doesn’t bar him from participating in TotalBankruptcy, how can Connecticut do so without threatening his livelihood?  Moreover, bear in mind that bankruptcy is a federal practice and one needn’t necessarily be licensed in a particular state to practice in the bankruptcy court there, thus making the intrusion on commerce even more invasive.

Finally, there are also some serious fairness considerations here.  These lawyers did not know, nor did they have reason to know that this system was unethical.  TotalBankruptcy’s legal opinions showed that it was.  Other state bars (such as Hawaii) have since accepted the practice.  Google Ads, a similar service (which even Disciplinary Counsel concedes differs in degree, not design) has never been challenged.  If the bar wants to prohibit TotalBankruptcy as unethical so be it, as long as it does so prospectively.  But don’t penalize well intentioned lawyers for this uncertainty.  But it’s clear that Disciplinary Counsel has no interest in playing fair.  It even references new legislation effective as of October 1, 2009 that criminalizes certain forms of solicitation.  Obviously, a new law isn’t going to apply to past acts.  So why mention it at all, except to fan the flames.

Still, why haven’t any solo bloggers taken up this fight? (I have been busy, but lots of other solo bloggers cover this turf).   Here stand five lawyers, at least one of whom questioned TotalBankruptcy about the ethics of their product and was assured that the matter had been vetted with ethics counsel and found to pass muster.  Moreover, TotalBankruptcy is an affiliate of TotalAttorneys which in turn sponsors ABA events like GP Solo and the Legal Rebels.  Attorneys would certainly be reasonable to rely on a service from which the ABA accepts contributions.  I may not like the service providers who sponsor the ABA – but I’d never question the quality or integrity of their product.  The same is true for lawyers who participated in TotalBankruptcy – it has an imprimatur of legitimacy by dint of the ABA accepting TotalAttorneys’ cash.

Which brings me to my last point.  Where the heck is the ABA in all of this?  If the ABA is taking money from a company that has put five attorneys’ reputations and licenses on the line, why isn’t it defending them in this matter?  The ABA has enough pull to sway judicial nominations and managed to even get Congress to propose legislation to exempt small legal practices from the FTC’s Red Flag Rules.  So why isn’t the ABA weighing in here?

Whether you like TotalBankruptcy or TotalAttorneys or believe that their service offers value isn’t the point.  TotalBankruptcy is totally out of the Connecticut Discipline Process at this point.  At the end of the day, on November 12, 2009, five lawyers will have their licenses and their reputation on the line.  And no one has bothered to speak for them.

  • Michael Harnois

    Of course it’s a matter of degree. The rule says “anything of value.” Pay-per-click ads are a de minimis amount. The Yellow Pages are pure advertising. No one could mistake them for a referral service. TotalAttorneys is one of the chief players in the commoditization of legal services–which would be reason enough to dislike them–but it is also leading lawyers into questionable ethical territory. Were that not the case, this proceeding would not have been brought. Certainly, these five attorneys do not deserve any punishment; but the complaint itself ought to be upheld. Is Total Attorneys paying for their defense?

  • Michael Harnois

    Of course it’s a matter of degree. The rule says “anything of value.” Pay-per-click ads are a de minimis amount. The Yellow Pages are pure advertising. No one could mistake them for a referral service. TotalAttorneys is one of the chief players in the commoditization of legal services–which would be reason enough to dislike them–but it is also leading lawyers into questionable ethical territory. Were that not the case, this proceeding would not have been brought. Certainly, these five attorneys do not deserve any punishment; but the complaint itself ought to be upheld. Is Total Attorneys paying for their defense?

  • http://www.ABAJournal.com Ed Adams

    With respect, I think you misunderstand the role of the ABA in the ethics process. We don’t defend lawyers accused of ethical wrongdoing; there are lawyers in private practice who do that, and do so quite effectively. The ABA’s role has been to author model ethical rules, which states are encouraged to adopt. It’s the role of the state courts to interpret their rules in individual cases such as this.
    It’s also wrong to suggest that ABA Journal advertisers are entitled to a defense of all their business practices by the ABA because they choose to spend money with us to reach our audience of lawyers. Indeed, if the ABA determined its policy positions based on who advertised with the Journal, that to me would be an enormous ethical mistake.
    But I agree with your larger point that it’s curious that so few lawyers have publicly spoken out in defense of these attorneys. I think part of the reason may be that the importance of the Internet in lawyer marketing is under-appreciated by many attorneys.
    –Ed Adams
    Editor and Publisher
    ABA Journal

  • http://www.ABAJournal.com Ed Adams

    With respect, I think you misunderstand the role of the ABA in the ethics process. We don’t defend lawyers accused of ethical wrongdoing; there are lawyers in private practice who do that, and do so quite effectively. The ABA’s role has been to author model ethical rules, which states are encouraged to adopt. It’s the role of the state courts to interpret their rules in individual cases such as this.
    It’s also wrong to suggest that ABA Journal advertisers are entitled to a defense of all their business practices by the ABA because they choose to spend money with us to reach our audience of lawyers. Indeed, if the ABA determined its policy positions based on who advertised with the Journal, that to me would be an enormous ethical mistake.
    But I agree with your larger point that it’s curious that so few lawyers have publicly spoken out in defense of these attorneys. I think part of the reason may be that the importance of the Internet in lawyer marketing is under-appreciated by many attorneys.
    –Ed Adams
    Editor and Publisher
    ABA Journal

  • http://blog.simplejustice.us shg

    I’m not fan of Total Attorneys. I don’t care for what they do, and what lawyers do with them. But I similarly don’t think that disciplinary proceedings against 5 individual lawyers, a drop in the bucket of voluminous dubious ethical practices, constantly solicited, importuned, engaged in and enjoyed in our internet age of no responsiblity marketing, is the wrong answer.
    Marketing has turned the legal profession into a morass. Total Attorneys and businesses like them are a big part of the problem. Lawyers willing to trade their professionalism for a few new leads are similarly part of the problem. I watch daily as lawyers do far worse than engage with a company like Total Attorneys. The bottom has yet to be found.
    But making 5 lawyers scapegoats will not solve the problem.

  • http://blog.simplejustice.us shg

    I’m not fan of Total Attorneys. I don’t care for what they do, and what lawyers do with them. But I similarly don’t think that disciplinary proceedings against 5 individual lawyers, a drop in the bucket of voluminous dubious ethical practices, constantly solicited, importuned, engaged in and enjoyed in our internet age of no responsiblity marketing, is the wrong answer.
    Marketing has turned the legal profession into a morass. Total Attorneys and businesses like them are a big part of the problem. Lawyers willing to trade their professionalism for a few new leads are similarly part of the problem. I watch daily as lawyers do far worse than engage with a company like Total Attorneys. The bottom has yet to be found.
    But making 5 lawyers scapegoats will not solve the problem.

  • http://www.pluggedinlawyer.com Tracy Thrower Conyers

    Why 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.

  • http://www.pluggedinlawyer.com Tracy Thrower Conyers

    Why 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.

  • http://www.chs-law.com Carl H. Starrett II

    Let me fill you in on some of the additional details. The complaining witness is not a consumer, but a bankruptcy attorney with a record of prior discipline. All of the parties involved are members of the National Association of Consumer Bankruptcy Attorneys, so you can imagine the internal discussions this has caused. The scope of the complaint goes beyond Connecticut. The complaining witness filed complaints in 47 states against hundreds of bankruptcy attorneys.
    Total Bankruptcy does not fit into my marketing plans, but the complaints have significantly increased the Google Page Rank of the complaining witness. I refuse to use his name to give him any more undeserved publicity and I have to seriously question his true motives.
    I’ve read the allegations and they seem like nonsensical gibberish to me. I suppose the next attack will be upon attorneys who use Google Adwords. To think that one person can cause so much havoc to the careers so many people scares me.
    This is about one attorney complaining about the advertising methods of other attorneys. Have consumers been harmed or mislead? I am aware of no evidence of that.

  • http://www.chs-law.com Carl H. Starrett II

    Let me fill you in on some of the additional details. The complaining witness is not a consumer, but a bankruptcy attorney with a record of prior discipline. All of the parties involved are members of the National Association of Consumer Bankruptcy Attorneys, so you can imagine the internal discussions this has caused. The scope of the complaint goes beyond Connecticut. The complaining witness filed complaints in 47 states against hundreds of bankruptcy attorneys.
    Total Bankruptcy does not fit into my marketing plans, but the complaints have significantly increased the Google Page Rank of the complaining witness. I refuse to use his name to give him any more undeserved publicity and I have to seriously question his true motives.
    I’ve read the allegations and they seem like nonsensical gibberish to me. I suppose the next attack will be upon attorneys who use Google Adwords. To think that one person can cause so much havoc to the careers so many people scares me.
    This is about one attorney complaining about the advertising methods of other attorneys. Have consumers been harmed or mislead? I am aware of no evidence of that.

  • http://www.PluggedInLawyer.com Tracy Thrower Conyers

    Michael, there is no basis for totalattorneys to even think they should pay for defending their customers in a case like this. They provided a service and it was purchased. It is up to the end user to understand the ramifications of his or her personal use of the service. That’s not to say that I think there is or should be an ethical issue with online marketing. I’m just saying that I completely disagree with your risk allocation analysis.

  • http://www.PluggedInLawyer.com Tracy Thrower Conyers

    Michael, there is no basis for totalattorneys to even think they should pay for defending their customers in a case like this. They provided a service and it was purchased. It is up to the end user to understand the ramifications of his or her personal use of the service. That’s not to say that I think there is or should be an ethical issue with online marketing. I’m just saying that I completely disagree with your risk allocation analysis.

  • http://www.totalattorneys.com Ed Scalan

    Carolyn, we feel just as strongly as you do about the innocent solo attorneys and small firm practitioners caught up in this issue. And, as Carl points out, it doesn’t stop with these five attorneys. The lawyer who triggered the investigation in Connecticut did so in 47 states, individually naming more than five hundred attorneys who are Total Attorneys customers.
    To Michael’s point and Tracy’s response, we have funded and will continue to fund all legal expenses for each of our attorney customers who has been targeted. Last month alone, it cost over $100,000. This attack began in April of 2009. We never entertained the possibility of standing by while our clients were victimized by a single attorney who has stated directly that he commenced this multi-state fiasco for anti-competitive purposes.
    From day one we consulted extensively with some of the country’s leading ethics attorneys in the creation of our business model, and remain confident that when the dust settles that model will be vindicated. As you mention, this vindication has already started.
    We believe very strongly that our business and its model greatly help consumers who, as many studies have shown, lack access to legal services. We have helped attorneys reach over 1,000,000 consumers through our advertising and have not one complaint on our Better Business Bureau (BBB) record. We are truly proud of our A+ rating, the highest rating the BBB awards. We also believe that our business and its model is in the best interest of attorneys. We NEVER lock a customer into a long-term contract. Our customers can cancel at any time. I say all the time around the office, “We re-win our customers at every touch point.”
    We are working very hard to build a suite of solutions to address the needs of solo and small firms. We are passionate about our attorney customers’ success. We believe that offering choices to attorneys and focusing on innovation helps each lawyer make the most of our services and his practice.
    I started this company in my apartment with a cell phone, a laptop, a credit card and a vision. Today our 250+ employees’ mission is simple: Improve lives through innovation in access to and delivery of legal services.
    If any of your readers would like to get to know us better I encourage you to check out the below videos or reach out to me, ed at totalattorneys.com
    About our Culture: http://vimeo.com/5375301
    Product Philosophy – http://vimeo.com/6055858
    Philanthropy Efforts to stop human trafficking http://vimeo.com/5750071
    (Learn more about Total Impact House here http://www.totalattorneys.com/impacthouse/ )
    Thanks!
    Ed Scanlan
    Founder & CEO
    Total Attorneys

  • http://www.totalattorneys.com Ed Scalan

    Carolyn, we feel just as strongly as you do about the innocent solo attorneys and small firm practitioners caught up in this issue. And, as Carl points out, it doesn’t stop with these five attorneys. The lawyer who triggered the investigation in Connecticut did so in 47 states, individually naming more than five hundred attorneys who are Total Attorneys customers.
    To Michael’s point and Tracy’s response, we have funded and will continue to fund all legal expenses for each of our attorney customers who has been targeted. Last month alone, it cost over $100,000. This attack began in April of 2009. We never entertained the possibility of standing by while our clients were victimized by a single attorney who has stated directly that he commenced this multi-state fiasco for anti-competitive purposes.
    From day one we consulted extensively with some of the country’s leading ethics attorneys in the creation of our business model, and remain confident that when the dust settles that model will be vindicated. As you mention, this vindication has already started.
    We believe very strongly that our business and its model greatly help consumers who, as many studies have shown, lack access to legal services. We have helped attorneys reach over 1,000,000 consumers through our advertising and have not one complaint on our Better Business Bureau (BBB) record. We are truly proud of our A+ rating, the highest rating the BBB awards. We also believe that our business and its model is in the best interest of attorneys. We NEVER lock a customer into a long-term contract. Our customers can cancel at any time. I say all the time around the office, “We re-win our customers at every touch point.”
    We are working very hard to build a suite of solutions to address the needs of solo and small firms. We are passionate about our attorney customers’ success. We believe that offering choices to attorneys and focusing on innovation helps each lawyer make the most of our services and his practice.
    I started this company in my apartment with a cell phone, a laptop, a credit card and a vision. Today our 250+ employees’ mission is simple: Improve lives through innovation in access to and delivery of legal services.
    If any of your readers would like to get to know us better I encourage you to check out the below videos or reach out to me, ed at totalattorneys.com
    About our Culture: http://vimeo.com/5375301
    Product Philosophy – http://vimeo.com/6055858
    Philanthropy Efforts to stop human trafficking http://vimeo.com/5750071
    (Learn more about Total Impact House here http://www.totalattorneys.com/impacthouse/ )
    Thanks!
    Ed Scanlan
    Founder & CEO
    Total Attorneys

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