A Connecticut-licensed attorney ensnared by a nationwide ethics complaint moved to dismiss his case last week after a six-and-a-half hour hearing before a three-member ethics commission in Hartford.
The decision on the motion could have an impact on more than 550 lawyers in 47 states who have done or are doing business with Total Attorneys, a Chicago-based company that helps connect consumers to lawyers through web sites such as www.totalbankruptcy.com.
Norwich, Conn., bankruptcy attorney Zenas Zelotes filed grievances against all of those lawyers, arguing that Total Attorneys' method of connecting the parties is an example of lawyers paying for referrals, which is a felony in Connecticut and a violation of the Rules of Professional Conduct.
For a $65 fee, attorneys who sign up with Total Attorneys receive leads on potential clients who enter their zip code and other contact information and click for a "free consultation." The potential client is routed to the fee-paying lawyer who is closest to that zip code, and the lawyer has exclusive rights to all leads in that zip code.
Matthew Rousseau, a Massachusetts-based attorney licensed in Connecticut, is one of 12 lawyers licensed in this state to be named in Zelotes' complaints. Five of those attorneys have had probable cause found against them.
Rousseau's case was the only one heard last Thursday because his was the first in which probable cause was found.
Chief Disciplinary Counsel Mark Dubois argued that the Total Attorneys model violates state law and ethics codes because it is recommending a lawyer to people who enter their contact information. "We got in all of the evidence [during the hearing] that we needed to get in," Dubois said. "The facts are not disputed. It's just a matter of whether there were rules violations."
Attorney David Atkins, of Pullman & Comley, represents Rousseau and two other Connecticut lawyers under fire. He moved for dismissal of the case, arguing that the Total Attorneys set-up is not recommending any lawyers but is just pointing people toward attorneys who choose to advertise with the company, similar to Google's advertisement model.
"The Office of Chief Disciplinary Counsel cannot establish what it must establish by clear and convincing evidence," Atkins said, that Total Attorneys is recommending lawyers to the public.
Zelotes said TotalAttorney is not the same as Google. While the search engine is selling advertising, he said, the net effect of the Chicago-based site is to provide direct referrals to lawyers. However, he acknowledged that at last week's hearing, that he "got a sense from the questioning that the committee may not have [understood] the distinction" between Google's model and Total Attorneys' model.
If the motion to dismiss is granted, all of the Connecticut cases will be dropped. If the motion is denied, testimony in the Rousseau case will resume and the door will open for additional hearings. "Whatever the decision is, it will open a lot of eyes and we'll see where we stand with all of this," Zelotes said.
At least one state has already made that determination. Last month, Hawaii's disciplinary counsel completed a full inquiry and decided that there was no basis to take any action on the ethics complaints filed there, mainly because the complaints raised First Amendment free commercial speech issues.