Bar Finds 'Ask Gary' Lawyers Broke Rule
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By MICHAEL SASSO
Republished from The Tampa Tribune
Originally published: Jun 22, 2007
TAMPA - The Florida Bar is cracking down on scores of personal injury lawyers who have benefited from the 1-800-ASK-GARY referral service, including more than a dozen from the Bay area.
In most cases, lawyers found to have violated Bar advertising rules are either sent a warning letter or ordered to attend a four-hour seminar on advertising rules.
However, the investigation appears to be an indictment of the Ask Gary advertising style, which is heavy on personal testimonials from accident victims who call the toll-free hot line for help.
The Bar, which is the statewide regulatory organization for lawyers, prohibits such testimonials and dramatizations in ads by lawyers and legal referral services. Even receiving a client from such an ad is a violation, said Ken Marvin, an official in the Bar's Tallahassee office. The Bar started its nearly yearlong investigation after dozens of lawyers complained that the Ask Gary ads didn't seem to play by the same rules that they did.
The ads are produced by Physicians Group LLC, which is a chain of accident clinics based in Sarasota. Although the Bar can target the lawyers who benefit from its commercials, it has no authority to go after a health care company. Still, Marvin noted that it's hard to tell who's behind the Ask Gary commercials from watching them on TV.
"I've seen some [Ask Gary ads] that don't even suggest he's a medical provider," Marvin said.
(Each commercial closes with a disclaimer in white letters naming Physicians Group.)
Late last year, the Bar sent out more than 100 letters to personal injury lawyers across Florida who it thought got client referrals from Ask Gary operators. The association closed its investigation into many of the lawyers quickly, because it found they hadn't gotten any referrals.
However, the Bar has taken action against at least 34 lawyers across Florida that it found accepted referrals from Ask Gary, in violation of Bar rules. By late Thursday, the Tribune had received a partial list of lawyers targeted by the association. The Bar still has open investigations into some Florida lawyers and declined to disclose their names.
Lawyers Must Pay $750, Attend Class
Some Tampa-area lawyers received a recommendation for "diversion," which typically requires that lawyers pay a $750 fee and sit through a four-hour advertising course. They are: Alejandro Fiol, Zareh Zackary Melkonian, Jack Marc Perez and William Driscoll III of Tampa; Howard Merricks, Harry Hale Jr. and Scott Swope of Clearwater; and Robert Thornhill III and Patrick Stoia of Palm Harbor.
Other area lawyers received a "letter of advice," which essentially is a warning and is considered a lesser action than diversion. They are: Jose Toledo, Steven Loewenthal, Dominic Fariello and Eric Tyrone Taylor of Tampa; Robert Thornhill Jr. of Palm Harbor; Frank Butler of Pinellas Park; John Paul Joseph, Marc Nussbaum and Andrew Reeder of St. Petersburg.
The Tribune attempted to contact the lawyers, but either was unsuccessful at reaching them, or they declined comment. Marvin noted that the actions taken against each lawyer didn't rise to the level of disciplinary action, which could include a harsher penalty called an admonishment or a filing of complaint with the Florida Supreme Court.
Kathy Bible, an advertising counsel in the Florida Bar's Tallahassee office, said a lawyer who works for the Morgan & Morgan firm - known for its "For the People" slogan - received a diversion, but she didn't name him. John Morgan, the head of the firm, didn't return a call from the Tribune this week.
Ads' Emotional Appeals Faulted
The Bar is targeting the Ask Gary ads because their personal testimonies are emotional appeals, Marvin said. The lawyers association wants people to choose a lawyer based on facts, not emotion, so it prohibits lawyers from creating such ads and prohibits them from getting referrals from services that use them.
A spokesman or actual client in a commercial might give a lawyer a glowing endorsement, but behind the scenes other clients who don't appear on TV might be critical of him, Marvin explained.
For its part, Physicians Group never considered itself an legal referral service, said Greg Zitani, a counsel for Physicians Group. It is a medical provider that refers some Ask Gary callers to its own clinics, and it strikes referral relationships with some lawyers. It sends some callers to the lawyers, and those attorneys often refer their clients back to Physicians Group's clinics for medical treatment, Zitani said.
The clinic chain has struck a deal with the Bar in recent weeks that would let the lawyers association review its future commercials. Lawyers then should be able to receive clients from Ask Gary without fear of offending any rules, Zitani said.
Asked whether Ask Gary ads will continue featuring patient testimonials, he said, "I would think not."
Behind the scenes, some lawyers have grown to resent the Ask Gary campaign because of the way it and other legal ads have come to dominate personal injury law.
From its base in Sarasota, Physicians Group has grown into a chain of 42 accident treatment facilities and offices that stretch from Naples to Jacksonville and include several offices in the Tampa Bay area. The company is controlled by Gary Kompothecras, a Sarasota chiropractor who is a close friend and campaign supporter of Gov. Charlie Crist. During his campaign for governor, Crist paid Kompothecras for use of his personal jet.
Physicians Group has become a huge advertiser on local television. According to TNS Media Intelligence, which tracks advertising in local markets, the company spent just less than $2.1 million last year on advertising in the Bay area market. That figure does not include additional money that it spends in other Florida markets, including Jacksonville and Southwest Florida. By comparison, Morgan & Morgan, the area's top legal advertiser, spent about $5 million last year in the Bay area, according to TNS figures.
Bar's Action Criticized
Jeffrey Luhrsen, a Sarasota-based personal injury lawyer, suggested the investigation into lawyers who use Ask Gary was spawned by competing lawyers upset at missing out on clients.
Luhrsen said he respects Physicians Group's medical care and has used it himself. Luhrsen estimates he has recommended that his personal injury clients use its medical services 1,200 times. In turn, Ask Gary's operators have sent him about 400 potential clients. Luhrsen said he thought the Bar had authorized the Ask Gary commercials in the past, and he was surprised to learn of the probe months ago.
Bar records didn't indicate whether it had taken action against Luhrsen, and he said he didn't know where his case stands Thursday.
"The Bar exists to protect the public from poor quality legal representation," Luhrsen said. "The Bar does not exist to referee turf battles between attorneys and medical providers."