The Connecticut bar's professional responsibility committee has written an opinion dismissing an ethics complaint against lawyers that pay the web site www.totalbankruptcy.com the sum of $65 for each prospective lead that the site provides them for their geographical area. Complaints have been filed against attorneys in 48 states, so I assume my own Mississippi is one of them as well just based on the odds, although I have no confirmation of this from our professional responsibility committee. At least 4 other states have also refused to pursue charges, but Connecticut was the first state to hold a full hearing on the charges. Connecticut's decision apparently turned on the distinction between "recommending" the lawyer's services, which is prohibited by the rule, from simply "referring" the interested party to the lawyer, which is not prohibited by the rule. This trend will no doubt open up other sites with the same scheme for referring prospects to lawyers, including other totalattorney sites such as "totaldivorce", "totalrealestate", "totalwills", etc. And, those lawyers who use google adwords can breath a sigh of relief, since the adwords campaigns are really no different, other than the size of the fee paid for the click.
Lawyer's Weekly's article on the current status of the issue follows:
A
written opinion dismissing an ethics complaint against five attorneys who
participated in a legal referral website was issued by the Connecticut
Statewide Grievance Committee.
The complaint is the largest legal ethics complaint in history targeting over
500 attorneys in 47 states, who paid to be part of the legal website,
totalbankruptcy.com and totalattorneys.com
The websites matched visitors to the website with participating attorneys who
had purchased the geographical area covered by the prospective client’s zip
code. The lead generated a per-prospect fee paid monthly by the attorney to the
websites. The total monthly fee was $65 for each lead received by phone call or
email from the websites.
The complaint alleged this advertising structure violated ethics
rules prohibiting fee-for-referrals.
A number of states, Alaska, Hawaii, Illinois and North Carolina, declined to
pursue the charges.
Connecticut was the only state to hold a full hearing.
Last month , it granted a
summary motion to dismiss the complaint.
In its full decision , issued February 8, 2010, the
committee found that the lawyers did not violate Rule 7.2(c) of the Rules of
Professional Conduct, which prohibits a lawyer from "giving anything of
value for recommending the lawyers services," except to pay reasonable
advertising costs.
The committee said the prosecutor did not establish a prima facie case of a
recommendation, as opposed to a referral.
" The term ‘refer’… means… ‘to send or direct…for aid, information, etc.’
A ‘recommendation’ connotes an endorsement; a ‘referral’ does not," the
Committee said.
"We conclude that because (1) the potential client initiated the contact
by visiting the website and by providing voluntarily the requested information
and (2) the websites did not contain any language of endorsement but rather
express disclaimers to the contrary, there are appropriate safeguards built
into the design of this advertising arrangement to remove the implication that
the referral is a recommendation based on a client’s particular legal needs or
the competence of the attorney," the decision said.
It noted that the websites at issue had been "designed to accomplish
compliance with the Rules of Professional Conduct with very little margin for
error" and that "on slightly different facts, we may well have concluded
that a prima facie case of ethical violations had been established."
- Sylvia Hsieh
