Features

Grade Anxiety


Paul Kiesel
Photo by Thomas Broening

Among Southern California plaintiffs lawyers, Paul Kiesel is something of a go-to guy. Twenty years ago he set up an information database for fellow plaintiffs lawyers to discuss arbitrators and mediators, and among the defense bar he is known as an adversary who honors his word. He’s also held board posts with the Los Angeles and California plaintiffs bars, and he chairs the Los Angeles County Bar Association’s litigation section.

So when Avvo, an online attorney ratings site, gave him one out of five stars for “industry recognition,” the Beverly Hills lawyer was puzzled.

“What struck me was, ‘Where was this information coming from and how reliable is it?’ ” Kiesel says. The site also includes client ratings and peer endorsement. Kiesel’s page had one of each, both of which were positive.

To Kiesel, Avvo ratings are subjective, and he wonders whether they’ll really help consumers make educated choices about lawyers. But he also senses that, regardless of what attorneys or legal regulatory agencies think about the sites, the online aspect makes them near impossible to stop.

“To a certain extent they offer a legitimate look for clients at how a particular lawyer is perceived by the community in a way that didn’t exist before,” Kiesel says. “If it’s credible, then it’s valuable. If it’s subject to manipulation, then it becomes particularly dangerous.”

“Attorneys don’t control comments on their profiles, which is the beauty of it,” says Mark Britton, the Seattle lawyer who founded Avvo. “If we allowed that, every single lawyer who didn’t like a client review would take it down. And every single consumer would figure out that they’d never see unbiased information.”

Kiesel is not alone in his concerns. Controlling the public image is the name of the game for all kinds of businesses, and especially professional services like law firms. But rising interest in and availability of law firm ratings through the Internet could be game-changing, affecting everything from market strategies to state ethics rules on advertising. (See “Comment Conundrum.”)

It’s a question of who controls the image—the lawyer and law firm or the ratings site and its commenters.

WHAT AVVO WROUGHT

Avvo uses technology to collect online data about lawyers, picking up bits like years in practice, work history, professional recognition awards and prior discipline findings.

Besides industry recognition, the site generates numerical scores for experience and professional conduct. The scores are averaged into an “Avvo Rating,” which in Kiesel’s case was 6.9 (on a scale of 10) as of November.

Mark Britton
Photo courtesy of Avvo

Avvo users can “claim” their profiles for free, or for $49.95 a month set up an “Avvo Pro” account to get added services, including analytics and the ability to choose which client comments appear first. In November the site had records for 1.3 million lawyers, and Britton expects Avvo will be profitable through advertising sales. Previously, he was general counsel and an executive vice president at the travel website Expedia, which also offers ratings and customer endorsements.

Britton notes that his site has specific rules about posting and removing client comments.

Clients don’t have to include their names in posted comments, Britton says, but they must register an e-mail address with the site. All client comments are reviewed by Avvo’s data team before being posted, and the team is headed by a lawyer. According to Britton, about 25 percent of the submitted client reviews are rejected.

If a lawyer challenges a review, Britton says, Avvo contacts the reviewer. If the reviewer doesn’t respond, the post is removed. Sometimes, he adds, the author reflects and decides to modify the review. And if the client/reviewer stands by his or her comment, it remains.

Avvo faced a lawyer challenge to its ratings system the first month it appeared on the Web. The case was filed by a Seattle attorney who was rated 5.2, or “average,” partly due to a disciplinary action from the state bar. The case was quickly tossed by the court.

“If you’re a great lawyer, you have nothing to hide. Let your clients go out there and speak,” Britton says. “I don’t think lawyers in general appreciate how quickly word-of-mouth is moving online, and these ratings are word-of-mouth.”

And interestingly, says Will Hornsby, ABA staff counsel who advised the ABA Commission on Advertising until it ended in 2002, in most states if a lawyer wrote and posted a testimonial review for another lawyer, the reviewer would not violate any professional conduct rules provided that he did not make false or unsubstantiated claims about himself in the writing.

THE ACC CHALLENGE

That may leave little comfort for those law firms that receive less than stellar grades on the latest of lawyer ratings, the Association of Corporate Counsel’s Value Index.

For its index, the ACC has been collecting the opinions of corporate lawyers about the outside law offices and practice groups they have worked with. As of December, about 1,800 evaluations had been received from law department staffers.

Firms are to be graded in six categories on a five-point scale. Rating categories include:

• Understanding of objectives and expectations.

• Legal expertise.

• Efficiency and process management.

• Responsiveness and communication.

• Predictable cost and budgeting skills.

• Results delivered and execution.

In November the blog Above the Law provided an early peek at the results (the ACC does not want to call them rankings). Many of those results represented comments from only three or fewer law department staffers, so ATL only listed the few firms with more interviews. Still, the post drew several dozen comments in the next 10 days, with many remarking on the ranking of one firm in relation to the others named.

Like commercial ratings sites such as Angie’s List, the first ACC Value Index results are supposed to be available only to a specific group—in this case, ACC members. Fred Krebs, the ACC’s president, says the association plans to show law firms their grades in January or February of this year.

“I’m a strong hawk on this—at some point they are going to see the evaluations,” says Mike Roster, chair of the steering committee for the ACC’s Value Challenge, the broader initiative behind the index. “I think it’s the right thing to do, and they’re going to find out the reviews anyway. It would be worse if some client says, ‘Gee, you should see what’s posted about you.’ ”

Roster of Pasadena, Calif., the retired general counsel of Golden West Financial, says the ACC is opposed to law firms using their Value Index grades in marketing materials.

Peter Zeughauser of Newport Beach, Calif., a former ACC national chairman who now does consulting work with large law firms, has voiced concern about the ACC ratings. In a three-page “alert,” (PDF) the Zeughauser Group lists many of the objections law firms publicly stated or privately stewed over:

• The comments deal with single offices and practice groups, while many legal matters involve multiple offices and several practice groups.

• The brief information that the Value Index requests is “curious.”

• There are “problematic compound questions” in the evaluation form.

• A “star chamber” is created because the feedback the index generates isn’t shared with outside firms.

Yet, despite his organization’s complaints, Zeughauser also predicts that once the firms learn their grades, the high rankings will “show up on firm webpages.”

Ed Poll, a Venice, Calif., law firm consultant, agrees. “When you have a corporate general counsel give you a five-star rating, that’s gold,” he says. “I think the large law firms very much do care about the ACC [grades], and if they could find a way to what they would consider a professional and appropriate way to ask for a high rating, they would do that.”

If the ACC Value Index is successful, Zeughauser suspects partners may campaign for grades—over lunch, on the golf course or at big-ticket sporting events—much like many court votes for the National Law Journal’s list of the most-used outside counsel.

So what can you do if a lawyer ratings site has client ratings and comments you don’t want associated with your firm? In many cases, not much.

There’s no shortage of locations for lawyer rating on the Web, each with its own rules. Sites like Martindale-Hubbell allow firms to opt out of client ratings or review and reject ratings before they are posted. On the social networking site LinkedIn, peers or clients can leave comments about lawyers. Yelp is a general consumer review site that had more than 7 million reviews as of August, including ratings and comments for lawyers and doctors.

None of the law-specific sites have yet reached Yelp’s prominence. But they have gotten interest in the legal community.

TIME TO PLAY?

“I think ratings services are more of a consternation for lawyers than they are a benefit for consumers at this stage,” Poll says. “Consumers have knowledge that they can call the Better Business Bureau to see if there are complaints against someone,” he says. “I don’t think they have that with something like Avvo, but the day might come.”

That day might come sooner than many lawyers expect, says Richard Granat, whose work focuses on using the Internet in legal services delivery.

“Just as consumers now look up the ratings of physicians before they select one, they’ll get in the habit of checking a lawyer’s credentials and ratings,” says the Palm Beach Gardens, Fla., lawyer, who has an Avvo rating of 8.3.

He advises lawyers to get listed in ratings directories, and if they offer a seal, like Avvo does, Granat thinks lawyers should post the seal on their webpages.

“Earned media is always more effective than paid media; people just believe it more,” says Dorie Clark, a Somerville, Mass., marketing consultant who advises clients on multimedia.

Posting and reading online reviews, she says, is more common with the under-30 set. Over time, Clark adds, the number of attorney reviews will likely increase as that generation enters the workforce.

“Many people actually feel like it’s their civic duty to provide information about sellers they interact with. I can imagine that the same would be true with clients of law firms,” says Clark.

“Traditionally, law firms and what their client interactions are like have been cloaked in mystery, and nobody really knows how good their service is,” she says. “That’s obviously disadvantageous to clients. People are spending large sums of money on legal assistance, and they want to know what they’re getting.”




The Raters


Association of Corporate Counsel Value Index

Launched in October and only open to ACC members, the online ratings system is accessed through the group’s webpage at acc.com. As of December, approximately 1,800 in-house lawyers had submitted evaluations. The ACC plans to show law firms their ratings in early 2010.


Avvo

Launched in 2007, avvo.com uses technology to seek out information about the lawyer, and the information is compiled into rankings. Clients and peers can rate the subjects as well. Free to use as is, lawyers can pay a fee to add more information to their profiles. Founder Mark Britton’s goal is to have a listing for every lawyer in America. The site gets approximately 2 million visits a month.


LinkedIn

Established in 2003, the site at linkedin.com has more than 50 million members. As of June 2009, 840,000 of those members worked within the legal profession, according to Stem Legal, a Web marketing group for lawyers. The site has a recommendation function, and users can seek and select recommendations to post on their profiles.


Martindale-Hubbell

One of the oldest online legal directories, martindale.com used to dole out AV ratings. In 2009 it introduced client review ratings, where buyers of legal services can offer anonymous feedback for Martindale-listed lawyers. Lawyers can choose what written feedback is displayed on their profiles or whether to display the ratings at all.


Yelp

Founded in 2004, the free general ratings site now has more than 7 million reviews, with about 30 million visitors to yelp.com a month. And Yelp sells advertisements to local businesses, which are labeled “sponsored results.” No reviews can be altered.


Sidebar

Comment Conundrum

Joel Rothman
Photo by Michael DeHoog

Before Joel B. Rothman buys a book, the Florida intellectual property lawyer checks out its consumer reviews on Amazon.com. If he’s curious about a restaurant, a touch opens the Yelp app on his iPhone, downloading numerous posts from people who’ve already been there.

So after the Florida Bar News ran an article with the headline “”Attorneys May Now Use Their Avvo Ratings in Ads,” Rothman signed up (or, in Avvo-speak, “claimed his profile”) with the click of a mouse.

Besides rating on a scale of 1 to 5 how responsive, trustworthy and knowledgeable a lawyer is, clients and former clients can write comments. However, Florida law bars testimonials in attorney advertising, and the May 2008 article did note that lawyers who encouraged client reviews would be responsible for the content.

Five clients Rothman e-mailed through the Avvo site rated him, and their comments were posted to his page. But Rothman also sought a state bar advisory opinion. The opinion confirmed his fears that the reviews would run afoul of rules banning testimonials, and he asked Avvo to remove the comments.

His request was denied. Avvo only removes client reviews if it appears the posts are false.

Rothman, a partner in Arnstein & Lehr’s West Palm Beach office, says the Florida Bar told him it would not independently initiate any disciplinary action against him. But if someone complained about the posts, there was no guarantee the bar would not bring charges.

In March of last year, Rothman filed a lawsuit against the Florida Bar in the U.S. District Court for the Southern District of Florida. Rothman v. Florida Bar alleged the state’s professional conduct rule banning client testimonials, case results and statements about quality of work in attorney advertising violated lawyers’ and clients’ First Amendment rights.

On Nov. 13 the parties entered a stipulated agreement: While proposed amendments for computer-accessed communications were being clarified by the Florida Supreme Court, online profiles would be considered client-requested communication, not subject to current lawyer advertising rules.

However, six days later on Nov. 19, the Florida Supreme Court ruled in a revised opinion that “websites [shall] be subject to all the substantive advertising regulations applicable to other advertising media” other than the state’s filing requirement.

Barry Richard, who represents the Florida Bar, maintains the stipulation is still good and applies to all Florida lawyers. “If it’s a service where you want to find out something, put in the lawyer’s name and request information, it’s the same as if you went to my website and asked for more information,” says Richard, a partner with the Tallahassee office of Greenberg Traurig.

But the Washington, D.C.-based consumer advocacy group Public Citizen, which is representing Rothman in his suit, isn’t so sure. “The problem is the rules are even stricter than they were before,” says Gregory A. Beck, a Public Citizen attorney. “So we’ve actually gone backward.”

SECOND STATE

A 2009 South Carolina bar ethics advisory opinion also states that lawyers can have profiles on sites like Avvo, but all information there, including client ratings, is subject to state bar rules. “This opinion does not take into consideration any constitutional law issues regarding lawyer advertising,” the last line reads.

Courts generally support attorney regulation efforts, but frown on restricting Internet speech. And states like Florida and South Carolina may be trying to restrict the speech of clients without the authority to do so because most of the clients are not lawyers.

Six states (besides Florida and South Carolina, they include Iowa, Louisiana, Nevada and Texas) have fairly restrictive lawyer advertising rules and are more active in prosecuting attorney advertising cases.

“Every lawyer has the obligation to comply with all advertising rules,” ABA staff counsel Will Hornsby says. “The difference in Florida is that they micromanage the advertising content.” Section 230 of the Communications Decency Act also figures in. It holds that providers or users of interactive computer services aren’t liable for content posted by others. “There’s no question that [section 230] pre-empts any state efforts to discipline based on client reviews left on Avvo,” says Mark Britton, the Seattle lawyer who founded Avvo.

But Tom Goldstein, a partner at Akin Gump Strauss Hauer & Feld in Washington, D.C., disagrees. “I don’t think that 47 USC § 230 is relevant,” he says. “That statute protects the computer service provider. The lawyer is being regulated for soliciting the client to offer an opinion.”

The South Carolina ethics advisory committee, which wrote the opinion, would love more guidance, says its chair, Michael J. Virzi. “The only thing I see our committee could have possibly done differently in that opinion would be to parse out online listings,” Virzi says. “I don’t know if that would be the right result; it could be subject to a lot of abuse. Lawyers could create their own listings—and their own phony client commentary.”


Correction

Print editions of “Comment Conundrum,” February, should have credited the article “Attorneys May Now Use Their Avvo Ratings in Ads” to the Florida Bar News, not the Florida Bar Journal.

Print editions also incorrectly list added services available to Avvo subscribers. Participation in client question forums does not require a paid subscription under Avvo Pro. Also, the story gives an incorrect middle initial for Association of Corporate Counsel President Fred Krebs, who does not use a middle initial.

The ABA Journal regrets the errors.

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