Posted on
November 7, 2009 in
Carolyn Elefant details the defense of three of the “persecuted” Connecticut Total Bankruptcy lawyers.
I don’t know that “persecuted” is the right word to use to describe people who face possible punishment for something they did—let’s be blunt—out of avarice. But okay.
Carolyn is impressed by the lawyers’ defense that Total Bankruptcy doesn’t recommend lawyers but only refers clients to them. (Under the Connecticut rule at issue, it’s illegal for a lawyer to give someone something of value for recommending the lawyer’s services.)
The Total Bankruptcy sites refer clients to lawyers by asking them to provide a zip code, at which point clients are referred to the sponsoring attorney’s website for that geographic location. (Response at 10). But Total Bankruptcy doesn’t recommend or endorse any of the Sponsoring Lawyers – a fact that is highlighted in the site’s terms of service.
The distinction between a “referral” and “recommendation” makes all the difference.
I wonder if Carolyn went and tried out the Total Bankruptcy site. A friend of mine did, and found that he was asked for details of his circumstances—amount of debt, type of debt, monthly income and expenses—that one would expect to be used by someone recommending the best lawyer for the job. And whatever the site’s terms of service were (they actually don’t say anything about “recommendations”; it is the disclaimer, that low-contrast small type below the fold, that does), my friend wasn’t presented with them before he hit “submit” and was told this:
Congratulations! You’ve taken the first step toward financial freedom!
One of our Consumer Advocates will be contacting you shortly to set up your consultation wtih Reese Baker of Baker & Associates.
If you would like to see if somebody is available to speak to you immediately, we encourage you to call us at: (877) 349-1309.
So you know it’s us, our number will appear on your caller ID as:
(800) 510-6420If we happen to miss you, be sure to call us back at: (877) 349-1309!
In the meantime, if you would like to visit this attorney’s web site, please go to https://www.bakerassociates.net.
It sure looked like a recommendation (Consumer Advocates! Yay!), and it appeared to have been made based on all of the information my friend provided.
So it wasn’t really a recommendation. So my friend didn’t have to provide all that information. So nobody at Total Bankruptcy really knows whether any of the lawyers who are paying for recommendations oops referrals is worth a damn.
Is the test whether the terms of service (nudge nudge wink wink) describe it as a recommendation? Is the test what is happening behind the scenes? If a site is called “Total Bankruptcy Attorney Recommendations” but functions like TotalBankruptcy.com, are lawyers using it off the hook because, despite all appearances to the contrary, they are not paying for recommendations?
Or is the test whether it looks like a recommendation to the client?
What makes sense? Isn’t the point of the rule that clients shouldn’t be misled into thinking that they are getting a recommendation based on their needs, rather than based on payments by the lawyer? Because that’s exactly how Total Bankruptcy looked to my friend.
And also to me.
These Connecticut lawyers aren’t being “persecuted,” they’re being punished for participating in what should have appeared to them to have been a marketing scheme of dubious legitimacy at best.
Outsource your marketing, outsource your ethics.
Given how other rules regarding attorney advertising have been getting struck down when challenged I wonder about this one as well.
Alas, as a licensed Connecticut attorney, I must say that the rules are quite clear. At least, after the fact. What I mean to say is that, when questions are posed to state bar counsel, the answer is ALWAYS “we don’t give prosepective advice”. No, you must ask for an advisory opinion.
What I mean to say is this, the rules aren’t always clear. There were many Connecticut attorneys asking whether such “referrals” or “recommendations” or pay-per-click advertising ran afoul the rules. No one really know, though we suspected that it MIGHT.
The word MIGHT is an impressive word because it can denote the slightest of possibilities, the most infitesimal, itty-bitty, maybe chance… You see, the real problem here is that the opinion reaches to pay-per-click ads, it is still not perfectly clear whether the bar will pursue those who pay for such ads as well. After all, pay-per-click is CLEARLY a fee for referral, recommendation, or the like, is it not?
I know, I know. Of course it is not. Ah, but the question still lingers in the hearts of some CT attorneys. When will we know for sure? When we are grieved?
I say this because CT is still uncertain on how the attorney advertising rules apply to social media marketing sites such as AVVO, LinkedIn, and even Facebook, Myspace, and the like. The ultimate problem is likely two-fold: lack of money for advice / enforcement AND the speed at which technology is advancing (being much faster than lawyering advances I fear).
I am not certain how we should view such referral services. Inherently, I dislike them (as I continually drone “gentlemanly profession” that should be no surprise). That being said, I also feel that these fellows of the profession were wronged by a system that refuses to provide advice on how it might interpret rules except through a LONG and arduous opinion process…instead the system says, we will know it when we prosecute it.