By Meredith Montrose and Andrew Servais
It is well known that any media used by an attorney to promote the attorney’s professional legal services must not contain any false or misleading communications pursuant to rules 7.1 and 7.2 of the California Rules of Professional Conduct. But an attorney’s obligations become more ambiguous when it comes to reviews made by clients on websites maintained by a third party. Rules 7.1 and 7.2 implicitly assume the attorney has control over such communications, but that is not the case with popular websites like Avvo, Martinedale-Hubbell and Yelp which allow the public to leave testimonials and reviews on an attorney’s profile.
These third-party sites and the reviews featured on them present a unique ethical quandary for attorneys. To what extent must attorneys ensure the accuracy of such testimonials? What steps, if any, should an attorney take if they know a false or misleading testimonial has been posted on their profile? In a recent opinion the California Committee on Professional Responsibility and Conduct sought to provide clarity on an attorney’s duties in such situations.
Third-party sites create and maintain profiles for attorneys which the attorneys have the ability to “adopt” or “claim.” By adopting or claiming a profile the attorney verifies her identity and is able to edit the information in her profile. While attorneys can edit the information on their profile regarding their background (for example their education, practice area or contact information) they are unable to make changes to the reviews left on their profiles by the public.
In California State Bar Formal Opn. No. 2019-199 the Committee lays out a hypothetical which illustrates some of the pitfalls an attorney may find himself in with respect to the reviews and testimonials. In the hypothetical an attorney adopts his profile, edits minor errors in his background information, and lists his publications and accomplishments on the site. The attorney posts a link on his own personal firm website to his profile on the third-party site. The attorney then asks his sister, who has never used the attorney’s services to write a favorable review on the site, praising the attorney for his work on a fictitious case. Next, the attorney asks his client, for whom the attorney had successfully represented, to post a review. The attorney did not ask the client to make any false claims in the review. The client, pleased with the attorney’s work, inaccurately states the amount obtained in settlement and the attorney’s background and qualifications.
The opinion explains that when the attorney adopted the profile, the profile became a communication within the meaning of 7.1 and 7.2. Consequently, it became the attorney’s responsibility to ensure, to the extent reasonably possible, that only accurate information appeared on the profile. Therefore, knowingly posting false information, or requesting his sister to do so, was clearly in violation of rule 7.1(a).
The more challenging ethical issue was presented by the false claims written by the client, which the lawyer did not prompt. The attorney requested his client write a review but did not request the client post false information. The Committee concluded the testimonial was a communication made on behalf of the attorney because the attorney asked the client to post the testimonial, therefore the prohibition against false or misleading communications applies pursuant to rule 7.1. So, the attorney was in the problematic position of being responsible for the communications posted to his profile but was not in control of those communications. The Committee then suggested an attorney in a similar situation consider taking the following steps. The attorney should request the client change the review to correct the errors or delete the post altogether, or the attorney could request that the site administrator do so. If neither the client nor the website administrator agrees to any such changes, the attorney must post something on the site in order to satisfy his ethical obligation under rule 7.1. Such posting must include an appropriate disclaimer or qualifying language. By taking the suggested steps, an attorney would be satisfying his ethical duty. The Committee concluded an attorney in this situation would not be required to abandon the profile, unless he was unable to post a disclaimer to the profile.
The takeaway is attorneys should be mindful of the reviews being posted to their profiles. The Committee does not require an attorney to abandon their profile in the event of a false or misleading review, but an attorney must take the appropriate steps to remedy the effect that review may have.
Meredith Montrose is an Associate at Wingert, Grebing, Brubaker and Juskie LLP. Andrew Servais is a Partner with Wingert, Grebing, Brubaker and Juskie LLP.
This article was originally published on the SDCBA website. Click here to view.
**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**