US state Bar recognises attorney internet advertising is different

Strange story here on the attempts by US state Bar authorities to reconcile ethics rules with the internet…

US-based Total Attorneys Inc, a managed-services provider that helps small law firms and solo practitioners, has announced its first victory in defending its internet advertising model against allegations made by Zenas Zelotes, a bankruptcy lawyer in Norwich, Connecticut. Alleging improper referrals are being made through internet sites managed by Total Attorneys, Zelotes filed hundreds of ethics complaints against its president, Kevin Chern, and attorneys who use the service. The first to rule on the complaint, Hawaii’s Office of Disciplinary Counsel completed a full inquiry and determined that there is no basis upon which to take any action in the case. Hawaii also stated in its letter that the complaint raised serious First Amendment free commercial speech and other legal issues.

“The ruling in Hawaii affirms our belief that the advertising model used by Total Attorneys is within the bounds of ethical and professional conduct,” said Chern. “In Connecticut, as in most states, the Rules of Professional Conduct do not expressly address modern technology. That said, the Hawaii finding demonstrates that reasonable attorney regulators can certainly apply antiquated Rules to contemporary technology in a way that fulfills their mission to protect consumers and that retains the spirit of those Rules.”

Further undermining the Zelotes allegations, the Virginia State Bar’s Standing Committee on Legal Ethics has officially withdrawn the draft ethics opinion on attorney internet advertising upon which Zelotes has relied heavily. By widely distributing Draft Legal Ethics Opinion 1851 to attorney regulators across the country in support of his allegations, Mr Zelotes made the opinion the centerpiece of his campaign despite the fact it had never been adopted. In response to the Committee’s invitation for public comment, Chern and his legal team, along with other independent third parties, submitted comments drawing the Committee’s attention to the First Amendment and other constitutional implications of regulating internet advertising. “By the withdrawal of the Virginia opinion, it is clear that the issue of internet advertising is not settled,” said Chern. “We applaud the efforts of bar regulators to address these issues and we appreciate that the task of updating the ethics rules to catch up with today’s technology is no small feat.”

At least one federal court has recently recognized the unique nature of internet attorney advertising. In its August 3, 2009 order in Public Citizen Inc -v- Louisiana Attorney Disciplinary Board (No. 08-4451) the US District Court for the Eastern District of Louisiana stated that “This Court is persuaded that internet advertising differs significantly from advertising in traditional media.” The Court held that the Louisiana rule which required attorneys to file copies of their advertising with the bar regulators was unconstitutional as applied to internet advertising due to the unique considerations inherent in internet advertising. According to Chern, “this is the first time a federal court has recognized that the rules which were written for traditional forms of advertising cannot be automatically or even constitutionally applied to advertising on the internet. Consumers need and deserve access to affordable legal services and group attorney advertising models such as ours meet that need.”

Lawyers who use Total Attorneys’ services pay the same fee every time a contact is generated, regardless of whether that consumer retains the lawyer, and in the absence of any recommendation by Total Attorneys of the attorney. The Complainant argues that this practice amounts to paying for a referral and should be considered unethical by state disciplinary bodies. Total Attorneys argues that their programs are akin to Google AdWords and other performance-based pricing models ubiquitous on the internet.