Thank you for writing about the other side of this issue – though I don’t agree with the analogy between the Ollie cabdriver situation and Total Bankruptcy. As you point out in your post on the cabbie, he waits outside the jail and catches clients at their most vulnerable. In my view, the Ollie cabdriver situation would be unethical whether he gets a fee or not, because it’s a face to face solicitation. The fact that lawyers pay to get access to the fruits of this solicitation compounds the problem even further.

The TotalBankruptcy situation is very different. Consumers arrive at the site through searches that they initiate. Moreover, there’s nothing on the site that forces them to hire a lawyer. Truth be told, I don’t find the site very effective – it is very generic – and my guess is that most consumers bypass it in favor of a site by a local attorney.

But there’s another issue with TotalBankruptcy that I posted on today (after you’d written this post). If you look at the language of Rule 7.2, it does not prohibit “for fee referrals.” Rather, it states that “a lawyer may not give anything of value for a recommendation.” To me, this changes this equation entirely. A recommendation is proactive; for example, I can imagine Ollie’s cabdriver telling clients “Have I got a great lawyer for you!” By contrast, what if Ollie’s cabdriver kept stacks of criminal lawyers business cards in his cab (and lawyers paid for that privilege) and consumers could take a card or not. The cabbie served as a conduit, just as Total Bankruptcy serves as a conduit or a pass through.

Also, in my view, the TB issue is a very gray area. Ethics violations, like criminal charges, require some element of intent – and here, I am quite confident that these lawyers did not believe or intend to violate rules. After all, for-fee directories have been lawful for years – they too, are “for fee referrals.” The pricing scheme of $750/month for 30 click throughs applied whether lawyers actually received a call from the client or a case. In the Ollie Cabdriver case, lawyers pay only when they actually get a client; here, they paid for 30 click throughs, just as you’d pay for 10,000 eyeballs or other type of metric. Given this uncertainty, I believe that the participating lawyers should have the benefit of the doubt.

I do agree with you on one point – you can’t outsource ethics. And I think that my earlier post was too easy on the lawyers to the extent that I gave them a pass for simply inquiring about the ethics of the system and relying on TotalBankruptcy’s assurances. After reading the TB response in the ethics case, I see that the analysis, though prepared by some well reputed lawyers, was pretty lightweight. I too assumed that the analysis would be worth relying on because of who prepared it, and I was wrong in that regard.

As for online marketing, while I am a fan, I’m not a huge booster of these services, which in many ways are very much like 1-800 lawyers and the like. I think many online marketing schemes (like Legal Match) are overpriced and don’t produce much value. But I’d prefer to see them regulated by market forces, rather than the bars – unless there’s clear evidence that the continuation of these services harms consumers.

Carolyn