EXPERT WITNESS: Money back guarantee? Read the fine print

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By Michael G. Brock

On 8/7/2016 I sent the following letter to: Consumer Protection Division, P.O. Box 30213, Lansing, MI 48909-7713, Facsimile: 517-241-3771

"Dear Sir or Madam: Sherry L. Barron runs or is the sole practitioner at the Diagnostic Assessment Center. She does substance use evaluations for driver's license restoration. I am a competitor. In the July 22, 2016 edition of the Downriver Trader Magazine on page 5, she is advertising a money-back guarantee to anyone who does not get their license back with one of her evaluations. http://www.monroemi.com/DownRiverTrader/drt.pdf

"I believe that offering a money-back guarantee is unethical for many reasons. First, the evaluations done for license restoration are supposed to be an objective assessment of the client's ability to drive a car safely, based on whether or not he is making a valid recovery from substance dependence. To present oneself as a guarantor of a successful appeal is to present oneself as a client advocate, not an independent evaluator providing unbiased information to the Administrative Hearing Section of the Secretary of State.

"Matthew Zick, an attorney for whom I do many such evaluations and who is most often successful, has never advertised himself as being 99% successful, as has Ms. Barron. Moreover, he tells me that it is unethical for an attorney to offer a money-back guarantee, so how can it be ethical for any health care provider to do so in a forensic setting? Or even to present oneself as an advocate?

"James M. Flint, Esq., a former hearing officer, once told me that he thought I should consider myself as a representative of the state when I do driver's license evaluations. I told him that that would also be wrong for someone in my position; my job is to be objective and represent no one, to have no bias either for or against the client. I published this letter and response in my column in the Legal News (http://legalnews.com/oakland/1386213).

"If I were to clearly state that my bias was in favor of getting a license back for everyone, regardless of the safety of the public, and if I were to create a strong economic incentive for myself to help put persons on the road who could be dangerous to others so that I didn't have to pay their money back for the evaluation, I would also be creating an incentive to provide a biased report. Knowingly providing a biased report in a forensic case is inherently unethical.

"Like anyone, I want my clients to do well, to be successful getting their license back and getting on with their life. What I offer them is their best chance to get their license back. They won't all be successful, but if they pay attention to detail, provide the information the hearing officer wants in a respectful and respectable matter, and are able to demonstrate that they have the necessary length and quality of sobriety, they have a reasonably good chance of getting their license. As in many life situations, if they just don't beat themselves they have improved their odds of winning their case significantly.

"That may sound simple, but you would be surprised how often sober people are denied a license because of a poorly done evaluation or contradictions between the evaluation, letters of support, their request for hearing document (SOS 257), and what they say at their hearing. I help clients organize their information and avoid inconsistency. But I do not represent them at the hearing and I do not advocate. This, I believe, represents the boundaries of ethical practice.

"Before I wrote up this complaint, I called Ms. Barron to find out what she meant by a money-back guarantee. She said that she meant if the client were denied a license because of a mistake on her part, she would refund their money. She is thereby limiting her liability to her own errors, but that is a far cry from what the ad states, 'Get your license back or get your money back!' Any responsible professional will take responsibility for his or her own mistakes. It is bad business not to. But Ms. Barron's ad is clearly misleading to clients and deliberately sets up unrealistic expectations which she has no intention of fulfilling.

"When I confronted her about her misleading advertising, she first responded by stating that I made false claims in my ad by saying that I do my own drug screens, which I can easily verify with documentation that I do; and that I claim that I have been recommended by State Hearing Officers. Matthew Zick tells me that he has been recommended to me by both Hearing Officer Modelski and Hearing Officer Longman, so these claims are also easily proven. Then she said it was just advertising to get the people in the door. Exactly my point; false advertising, which is both unfair to the clients and unfair to those of us substance use evaluators who operate honestly and above board.

"Thank you for looking into the matter.

"Michael Brock"

I received a brief letter back from Attorney General Shuette's office, stating that this matter was not something than concerned them. I guess bait and switch advertising is legal in this state, but it certainly raises ethical questions regarding trustworthiness. This is a forensic matter; if this kind of ad is not legal for an attorney, it shouldn't be for any professional. Consumers of our services have a right to expect integrity from a professional, not the questionable tactics of used car salesmen.

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Michael G. Brock, MA, LLP, LMSW, is a forensic mental health professional in private practice at Counseling and Evaluation Services in Wyandotte, Michigan. He has worked in the mental health field since 1974, and has been in full-time private practice since 1985. The majority of his practice in recent years relates to driver license restoration and substance abuse evaluation. He may be contacted at Michael G. Brock, Counseling and Evaluation Services, 2514 Biddle, Wyandotte, 48192; 313-802-0863, fax/phone 734-692-1082; e-mail, michaelgbrock@ comcast.net; website, michaelgbrock.com.

Published: Wed, Nov 16, 2016

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