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Is Total Attorneys Complaint a Total Joke?

What are we to make of the complaint by Connecticut lawyer Zenas Zelotes against Chicago-based Total Attorneys and its lawyer-founder Kevin Chern? Zelotes has filed versions of his 303-page complaint against more than 500 lawyers in 47 states. He alleges that these lawyers are obtaining referrals through and sharing fees with Total Attorneys in violation of legal ethics rules. The Connecticut Law Tribune first reported about the complaint in July and now it is back in the news with a piece in the Norwich Bulletin.

In a blog post written shortly after the story appeared in the Law Tribune, Total Attorneys president Chern defended his company's business model.

Mr. Zelotes’s argument that the pay-per-performance model employed by Total Attorneys amounts to fee splitting defies even the most basic logic. Sponsoring attorneys pay fees based on exposure, regardless of whether or not a particular consumer ever retains them or they ever receive a fee.

The truth is that the pay-per-performance model employed by Total Attorneys is the industry standard in online advertising and is most notably employed by Google as the pricing model for their AdWords program. Total Attorneys’ program is a natural extension of the Google performance-based pricing model. Both times that ethics opinions have addressed performance-based pricing models, first in South Carolina and then in Kentucky, they have been found to be compliant.

At Law Marketing Blog, Larry Bodine sides with Chern, calling the complaint "zany" and citing those same South Carolina and Kentucky ethics opinions to conclude that the law is on the side of Total Attorneys. Carolyn Elefant, my colleague in writing Legal Blog Watch, also sides with Chern. In a comment to Chern's blog post, she wrote, "Frankly, I have never understood the objections to these 'for fee' referrals. The bars all run referral services and they are pay-for-play."

But are the ethics rules all that black-and-white? Connecticut's chief disciplinary counsel, Mark DuBois, has found probable cause to pursue disciplinary complaints against five lawyers relating to their involvement with Total Attorneys. "I feel like the traffic cop who has to defend the 35-mile-an-hour speed limit to a guy who has invented a car that goes 200 miles per hour," DuBois told the Norwich Bulletin, saying the cases raise "fascinating issues" about the use of technology in marketing legal services.

DuBois earlier told the Law Tribune that the Web sites used to attract potential clients could run afoul of his state's rules. "The problem with that is that the advertising rules here require there to be the name of a Connecticut-admitted lawyer on the ad and that lawyer has to file the ad with the grievance committee for review." Dubois also said there would be ethical problems if the fees paid by attorneys are deemed well in excess of the cost of the advertising sites' operation.

In Virginia, a draft ethics opinion issued earlier this year concluded that a lawyer's participation in a Web site similar to Total Attorneys would violate that state's ethics rules. The non-binding draft was put out for public comment and now awaits further review by the state bar Ethics Committee.

These actions in Connecticut and Virginia suggest that Zelotes' complaints should not be dismissed out of hand. Regardless of whether you believe the complaints have merit, they point to the need for a broader re-examination of legal ethics rules that some see as outmoded and others as essential to protecting consumers. I agree with Martha Sperry at the blog Advocate's Studio, who says this case highlights the need for our the legal profession "to examine change, and that includes the ethical rules that purport to guide the profession and ensure protection of client interests."

To the extent that these complaints point to the lack of clarity and consistency in the rules of conduct governing lawyers, they are no joke. Complaints filed in 47 different states could conceivably result in 47 different outcomes. That kind of uncertainty doesn't help lawyers or consumers.

Posted by Robert J. Ambrogi on September 15, 2009 at 02:34 PM | Permalink | Comments (17)


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