Last week, Washington became the eleventh state to close its ethics investigation into the Total Attorneys online advertising model without making any finding of wrongdoing.
The complaints against thirteen Washington attorneys were part of a national campaign by one Connecticut lawyer to attack Total Attorneys’ Internet marketing services to lawyers.
The complaints, filed in April 2009, alleged that Total Attorneys President Kevin Chern and more than 500 attorneys across the country had violated the various states’ Rules of Professional Conduct simply by participating in the Total Attorneys advertising platform.
In the 7-page letter explaining its decision not to pursue the complaints, Washington State Bar Association Senior Disciplinary Counsel Jonathan Burke noted that Illinois, Connecticut, Hawai’i, Vermont, Alabama, Arizona, Idaho, New Mexico, Colorado and Alaska had closed investigations with no finding of wrongdoing.
Each of those states carefully considered the complaints on the merits and made a determination to dismiss or close the investigation. Disciplinary Counsel joined these jurisdictions by providing a thorough, independent analysis of the issues.
Referencing both the website disclaimers and the lack of screening and matching functions, Disciplinary Counsel concluded that “[t]he websites do not attempt to hold themselves out as lawyer referral services or fit the definition of ‘lawyer referral service’ in Comment 6 to RPC 7.2.”
Unlike previous state decisions, the Washington letter also touched on the claim that the websites’ pay-per-performance model violated 11 USC §504(a), which prohibits the sharing of fees in bankruptcy cases.
The analysis specifically indicates that the attorneys in question “did not share or agree to share ‘compensation’ with the websites.”
Shortly after a Connecticut hearing panel dismissed all charges against lawyers who had participated in Total Attorneys in that state, the complainant in the disciplinary matter filed in bankruptcy court a motion to reopen a concluded bankruptcy case for the stated purpose of again alleging fee-sharing and a violation of 11 USC §504(a).
According to Total Attorneys’ General Counsel Pam Gracyalny,
“We are awaiting a ruling on the motion to reopen before we know whether these same allegations which were already considered by the disciplinary authorities will be entertained by the court.”
Chern says that he is pleased by the determinations in those states that have examined the Total Attorneys advertising model.
“While it’s possible that there are other Internet advertising models out there that do violate the Rules of Professional Responsibility, only the Total Attorneys model has been subjected to state-by-state scrutiny. We have always believed and worked to ensure that our model was in compliance with the applicable ethics rules, and we hope that when these matters have been concluded, we will be left with clear standards for attorneys who want to use the Internet to ethically and profitably promote their law firms.”