More Perspectives on the 'Connecticut Five'
As I noted here last week, Connecticut's attorney grievance committee begins its hearings Thursday into the cases of five attorneys accused of violating state ethics rules by participating in the Web site TotalBankruptcy.com. As I wrote then, my former Legal Blog Watch colleague Carolyn Elefant, writing at her blog MyShingle, wondered why so many in the legal community were letting the so-called Connecticut Five be "hung out to dry." I also quoted Josh King, general counsel at Avvo.com, who argued at the Avvo Blog that lawyers should be allowed to market themselves however they see fit, "in the absence of consumer harm."
But not everyone sees Total Attorneys -- the parent company of TotalBankrutpcy.com -- as benign. As I noted in my earlier post, one who does not is Connecticut lawyer Zenas Zelotes. It was his complaint that spawned the Connecticut hearings and he has filed versions of it against more than 500 lawyers in 47 states. He alleges that these lawyers are acting unlawfully by obtaining referrals through and sharing fees with Total Attorneys. "This is about upholding the integrity of our profession," he said in a comment he posted here.
Another who does not is Scott Greenfield. At Simple Justice, Greenfield asserts that businesses such as Total Attorneys "are a cancer in the legal profession, and one that happily infects far too many lawyers who are desperate for business." He characterizes the dispute as a war within the profession, one in which the Connecticut Five are merely scapegoats for a bigger problem. "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."
That point of view is shared by Mark Bennett of the blog Defending People. In a post titled, Disbar the Connecticut 5, he argues that the lawyers' arrangement with Total Attorneys was fee sharing, plain and simple, and that they should not have been surprised to find themselves the subject of a disciplinary action.
We don’t get a free bite at the apple every time the next shiny place to advertise comes around just because it’s not explicitly forbidden; it’s our responsibility as lawyers to know whether their advertising passes muster or not, and to avoid advertising that might violate the rules. Being dazzled by “Web 2.0″ bullshit is not, and should not be, a defense to a claim of unethical conduct by a lawyer.
In a subsequent post, In Favor of Lawyer Exceptionalism, Bennett takes issue with Josh King's "No blood, no foul" argument with regard to consumers and King's statement that lawyer advertising rules are a vestigial "attempt at lawyer exceptionalism." Responds Bennett:
I am in favor of lawyer exceptionalism not because lawyers should be treated with special respect, but because lawyers should treat people with special respect. In our “21st-Century media landscape” lawyers need to be reminded that they are exceptional, that they have a sacred trust, and that lawyer advertising should be not merely undeceptive, but beyond reproach.
Meanwhile, Carolyn Elefant updates her hung-out-to-dry comment with a follow-up post noting that the Connecticut lawyers "haven't completely been hung out to dry." Turns out that Total Attorneys is paying the legal costs of its attorney customers. She also appends a lengthy reply to Bennett, in which she says that she strongly disagrees "with punishing lawyers with a disciplinary proceeding where the law is not clear and the bars offer limited options for attaining certainty."
If this is a civil war within the legal profession, I've been accused of siding with both camps. The truth is, I am uncertain about where I stand. I absolutely agree that lawyers -- as Bennett put it -- have a sacred trust and that our advertising must be not just transparent, but crystal clear. At the same time, I have not taken the time to evaluate Total Attorneys in sufficient depth to offer an opinion about its model. I worry that the mechanisms of many find-a-lawyer sites are not in the least bit transparent to consumers and I have seen some that are downright deceptive.
At the same time, there is a shortage of tools available to consumers to help them find and evaluate appropriate lawyers. Based just on the number of calls I receive from consumers all over the country who are having difficulty finding a lawyer, I believe the profession is not doing enough to help them. It only makes sense that the Web should be the vehicle that would help them. The question remains what that vehicle should look like.
Posted by Robert J. Ambrogi on November 10, 2009 at 01:16 PM | Permalink
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