Connecticut’s legal ethics attack on Total Attorneys a step backward for consumers

This week the State of Connecticut began hearings on whether five attorneys violated state ethics rules by participating in an Internet advertising program run by Total Attorneys.

Cast in the light of protecting consumers, Connecticut’s action is another step backward for consumers and the lawyers who serve consumers by providing legal services at reasonable prices.

Total Attorneys, through its web advertising program, gives small firm lawyers the ability to pool their resources and market their services at a much lower cost than they could do effectively on their own. The outcome is good lawyers getting legal work and consumers having access to legal services they may not have otherwise been able to afford.

Nonetheless, Connecticut attorney Zenas Zelotes filed a 303-page complaint against Total Attorneys and its President, Kevin Chern. Zelotes claims that the lawyers who use Total Attorneys services are in violation of legal ethics rules, because they are obtaining referrals through and sharing fees with Total Attorneys. Essentially, he believes this is fee-splitting, that they are providing value for a client referral.

Zelotes has filed similar versions of the same complaint against more than 500 lawyers in 47 states.

Several well-respected, web-savvy legal professionals have chimed in to defend Total Attorneys and the five Connecticut lawyers who stand to face disciplinary action, including Larry Bodine, Carolyn Elefant, and Avvo’s Josh King. Bob Ambrogi has been following this story as well, pointing out that “these complaints point to the lack of clarity and consistency in the rules of conduct governing lawyers.”

Kevin Chern responded to the initial charge in a blog post in July:

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.

Regardless, the chief disciplinary counsel of Connecticut, Mark Dubois, found probable cause to pursue the complaints, which brings us to the current hearings.

The Internet can serve as the great equalizer for lawyers who have not been practicing for decades or without a war chest for cheesy advertising campaigns. But state ethics governing bodies, usually without a clue as to how the Internet works, seem inclined to protect the status quo.

The only reasons I can see for actions like Connecticut’s here is to protect the status quo. To prevent younger lawyers who have struck out on their own from getting legal work from the good old boys. Or to protect state bar lawyer referral systems where lawyers pay the bar association for referrals.

There’s no way states can say they are taking such action to protect consumers. Very strange when the rules being enforced were designed to protect consumers in their attempt to find a lawyer to help.