Like a camera set up to monitor and catch red-light intersection scofflaws, the South Carolina Bar Association just issued an advisory ethical opinion concerning web-based lawyer rating services such as AVVO and Martindale-Hubbell. SCBar // Ethics Advisory Opinions. In a nutshell, lawyers can claim the informational postings produced by such web-based rating services but must monitor the content or else run afoul of the ethical rules.
Lawyer rating services started proliferating several years ago. One of the better marketed, AVVO, for example, posts information concerning lawyers and then solicits them to “claim” the posting.
The South Carolina Bar’s Advisory Opinion says it’s ethically permissible for lawyers to claim their posted listing but then turns around and states that a lawyer who adopts or endorses information on any similar web site becomes responsible for conforming all information in the lawyer’s listing to the Rules of Professional Conduct.
Web-based social media is advertising.
Website listings are considered advertising and therefore, must conform to rules. The South Carolina bar says, A lawyer should not solicit, nor allow publication of, testimonials. A lawyer should also not solicit, nor allow publication of, endorsements unless they are presented in a way that is not misleading nor likely to create unjustified expectations.
The Bar advises lawyers to monitor what clients say about them and to include disclaimers that “may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client.” The advisory opinion goes on to say that If any part of the listing cannot be conformed to the Rules (e.g., if an improper comment cannot be removed), the lawyer should remove his or her entire listing and discontinue participation in the service.
The upshot is that once you claim the listing, you’re required to monitor the nice things clients are saying about you on the listing. If you don’t police your own listing, then you may find yourself in trouble if a client’s extolment is over-the-top.
Wary of testimonials.
I know several lawyers who actively solicit peer and client recommendations to website listing services. The language is part of every email they send. And yet, some jurisdictions continue to take a jaundiced view of a lawyer’s use of such recommendations or testimonials.
Such recommendations generally come under the ethical rubric not to violate the rules through the acts of another. The Board of Commissioners on Grievances and Discipline for the Ohio Supreme Court, for instance, has determined that quoting clients on a law firm’s website violates the prohibition against client testimonials under ABA Model Rule 7.1. See Bd. of Comm’ners on Grievances & Discipline for the Sup. Ct. of Ohio Op. 2000-6 (December 1, 2000).
The South Carolina Bar makes note of the concern in their opinion. Even absent a specific prohibition against testimonials, several states have concluded that client comments contained in lawyer advertising violate the prohibition against misleading communications if the comments include comparative language such as “the best” or statements about results obtained. See, e.g., Virginia State Bar Lawyer Advertising Opinion A-0113 (2000). Rule 7.1(c) prohibits comparative language in all communications, Rule 7.1(b) prohibits statements that are likely to create unjust expectations about results, and Rule 7.2(f) prohibits self-laudatory language in advertisements.
A cursory search of Arizona’s ethics advisory opinions does not reveal an opinion on point although there are other express advisories against paid referrals, for example. But like all jurisdictions, Arizona adopts the express prohibition against lawyers “knowingly” permitting others to make false or misleading communication about the lawyer or the lawyer’s services. (1)
Nevada’s version of ER 7.1 is arguably more complete in that it differs slightly from the ABA Model Rule. It expressly mentions testimonials at 7.1 (d). The Nevada Rule 7.1., Communications Concerning a Lawyer’s Services states:
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it:(a) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; (b) Is likely to create an unjustified or unreasonable expectation about results the lawyer can or has achieved, which shall be considered inherently misleading for the purposes of this Rule, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; (c) Compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated; or (d) Contains a testimonial or endorsement which violates any portion of this Rule.
[Added; effective May 1, 2006; as amended; effective September 1, 2007.]
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(1) Arizona ER 7.1. Communications Concerning a Lawyer’s Services
A lawyer shall not make or knowingly permit to be made on the lawyer’s behalf a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
[...] Policing the intersection of online testimonials and ethics – covers the South Carolina bar’s unenforceable and unconstitutional regulation of a “Company X” that looks very much like Avvo. [...]
[...] owner would have the opportunity to edit for appropriateness of content. Be especially wary of “comparative” testimonials or specific results obtained. This is [...]