Disbar the Connecticut 5

 Posted on November 06, 2009 in Uncategorized

No, not really. I don't care whether they get disbarred or let off.

A lawyer can't pay a nonlawyer for a referral. This is an uncontroversial proposition. In Connecticut, paying a nonlawyer for a referral can even be a felony. So when five Connecticut lawyers signed on to pay totalbankruptcy.com $65 per referral, they shouldn't have been terribly surprised to find themselves the subjects of a Memorandum of Fact and Law by Disciplinary Counsel (via Simple Justice).

TotalBankruptcy.com, in its bottom-of-the-page low-contrast disclaimer, calls itself a "cooperative advertising website"-a claim handily dispensed of by the Disciplinary Counsel:

This $65 per contact price is fixed, and not contingent on the number of attorneys "sponsoring" Total Bankruptcy, distinguishing it from a cooperative advertising model.

Saying it in a disclaimer doesn't make it true. Lawyers know that. And Total Bankruptcy's website sure looks, to the desperate-by-definition potential client seeking bankruptcy, like a referral site if not a full-blown law firm. Disclaimer notwithstanding, it is designed, I would argue, to look like a referral site.

Boosters of online marketing (like Carolyn Elefant) are up in arms:

If the bar wants to prohibit TotalBankruptcy as unethical so be it, as long as it does so prospectively.

(Carolyn also analogizes TotalBankruptcy to Google's pay-per-click. She quotes a small part of the Disciplinary Counsel's rationale for distinguishing Total Bankruptcy from pay-per-click, but leaves out the meat of it as well as a crucial word in a key sentence, so that it appears in her post that the Disciplinary Counsel is just haggling over the price. This is far from the truth.)

Carolyn's indignation is misplaced. If the bar is correct that Total Bankruptcy is in fact an unauthorized referral system in violation of the rules, then this should come as no surprise to the lawyers disciplined: they were, after all, paying to have cases steered toward them, and only toward them. Total Bankruptcy was serving the role of Ollie's cabdriver; I doubt that Ollie claimed surprise when he got indicted because the law doesn't specifically forbid barratry by cab drivers.

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. As Eric Turkewitz first said (and I shamelessly stole):

outsourcing marketing = outsourcing ethics

When it comes to marketing, let the buyer beware.