Posted Apr 04, 2011 02:02 pm CDT
Some state attorney discipline agencies are heavily regulating how lawyers use rating sites for business development. But how do those rules jive with the less-stringent Communications Decency Act of 1996, which says users of such sites aren’t liable for content posted by others?
ABA Journal podcast moderator Stephanie Francis Ward talks with guests to discuss, among other ethics issues, whether lawyers can/should face discipline for client-written “testimonials.”
In This Podcast:
Vincent Buzard, a partner with Harris Beach, chairs the firm's appellate litigation & advocacy practice group. He practices in the suburbs of Rochester, N.Y., and is a former president of the New York State Bar Association. Buzard is also a member of the American Bar Association's House of Delegates, and recently led the successful effort to obtain passage of a resolution calling for the ABA to study the ranking of law firms.
Eric Goldman is an Associate Professor of Law and Director of the High Tech Law Institute at Santa Clara University School of Law. Before he became a full-time academic in 2002, he practiced Internet law for eight years in Silicon Valley. His research and teaching focuses on Internet, IP and advertising law topics, and he blogs on those topics at the Technology & Marketing Law Blog.
Jamie Zysk Isani
Jamie Zysk Isani is an associate in the Miami office of Hunton & Williams. Her practice focuses on First Amendment, appellate, and complex commercial litigation.
This ABA Journal Podcast is brought to you by WestlawNext, building on the strengths of Westlaw to bring you the next evolution of legal research. Their most significant innovation in 30 years, it’s a complete research system that gives you confidence you’ve found the most relevant information. And, it elevates productivity with intuitive work flow tools. Learn more at WestlawNext.com.
ABA Journal: In some states, testimonials are forbidden in attorney advertising. However, the rules were written long before anyone imagined clients would take it upon themselves to write attorney testimonials and post them on sites like Yelp and Avvo. I’m Stephanie Francis Ward, and that’s what we’re discussing today at the ABA Journal Podcast. Joining me are Vincent Buzard, a former president of the New York State Bar Association and a partner with Harris Beach. Jamie Isani, an associate with Florida’s Hunton & Williams, and Eric Goldman, an associate professor at Santa Clara University School of Law who also directs the school’s High Tech Law Institute.
Mr. Buzard, in February, you brought to the ABA House of Delegates’ attention the issue of ranking law firms. I think the problem you had about that is the publications’ methodology. Do you see sites like Yelp or Avvo where consumers put in their own rankings or ratings of attorneys as a better option?
Buzard: No. I don’t at all. Avvo, for example, in their ranking or rating, doesn’t take into account client comments. They do take into account attorney comments in doing their rating. But otherwise, it’s just people talking, and it’s posted. And of course, that’s particularly so with Yelp. It’s really apples and oranges. One of the problems with the US News and Best Lawyers ranking and rating is that it is so dominant just like it is with law schools and colleges. And that’s why the New York Bar brought to the floor of the House a resolution calling for the study of the methodology used in doing the rankings. These individual comments, I think they have enormous opportunity for harm.
And the underlying problem with any such thing like this is, do you have a statistically valid sample? How was it selected? And if three or four people write in and make devastating comments about a law firm or extravagantly praise them, then I suppose it may mean something, but it may mean that a law firm has its reputation damaged. So it’s not a substitute.
ABA Journal: On the other side of it though, could you see where clients’ comments might be good for potential clients to know who they’re hiring? Is there a positive side to it, too, do you think?
Buzard: It’s so uncontrolled. I don’t know. I mean, anybody who hasn’t had a dissatisfied client in however many years of practice probably hasn’t really practiced. The nature of the practice is sometimes people don’t get the result they want, particularly high-risk areas like matrimonial. Of course, everybody is always unhappy. So no. I mean, it’s a matter of free speech in terms of these sites doing it. I don’t suppose there’s any way to control it.
Now, if you take the next step and actually have the lawyer using those sites to tout their own ability, then I think that can be a real problem.
ABA Journal: Ms. Isani, recently your law firm was one of eight that signed off on a filing to the Florida Supreme Court noting that the state attorney advertising rules are too restrictive in the firms’ opinions. Can you tell us a bit about Florida’s rules on computer access communications and what the status of your filing is with the court?
Isani: Yes. Well, the Florida Supreme Court in 2009 decided that attorney websites would now be subject to all of the general rules on advertising that are applicable to Florida lawyers, and this raised a number of problems. First, the Florida Bar had not even proposed such a sweeping regulation of websites. And so the Florida Bar’s amendment of its rule raised a number of problems both in theory and in practice, both from the First Amendment perspective and from a commerce clause perspective, because these could apply to nationwide firms that simply had one or two Florida lawyers.
From the First Amendment perspective, there is a tremendous amount of information on firm websites and other computer communications that isn’t advertising. Unlike a pamphlet or a letter that an attorney sends out attempting to solicit clients, the websites have all sorts of information about particular attorneys, the firms’ practice groups; firms use their websites to communicate regarding updates in the law, recent Supreme Court decisions. So there’s a tremendous amount of information that simply isn’t advertising. The Florida Supreme Court had adopted a rule over the objection of the Florida Bar.
The important thing is that the Florida Bar has gotten the Florida Supreme Court to stay the implementation of these new rules until three months after it ultimately rules, because the Florida Bar had moved to amend the rule that the Supreme Court had adopted. And then we filed a comment, eight large law firms back in August filed a comment, addressing primarily the First Amendment and commerce clause concerns, as well as just the practical concerns for big law firms having to comply with these new rules if they’re applied to all websites.
The Bar then moved to dismiss this action in October claiming that it had commissioned a study that would apply to all attorney advertising, and it was going to petition the Bar to amend the attorney advertising rules across the board, not just the computer access information rules. The Supreme Court has granted the Bar until July 5 to submit its proposed amendments to the rules. We have sent, the same law firms, have sent a comment to the Florida Bar Review Committee professional ethics regarding its proposed amendments to these rules. It will be meeting on March 24 but will not be accepting public comments. So we’re hoping that they’ll review our written comments.
As I said, the Bar has until July 5 to propose a comprehensive amendment to the rules, and we submitted sort of a redline of proposed amendments to them that would address some of our concerns.
ABA Journal: Okay. Professor Goldman. From a practical perspective, is it realistic to think that attorney regulation groups can restrict online rating sites? Is that really doable?
Goldman: Well, it depends on what the attorney regulators are trying to regulate, as Mr. Buzard indicated. If we’re talking about lawyers posting fake reviews of themselves, that may be fairly easy to regulate. I think the harder part is that we’ve seen a number of regulators, not just in the attorney context, who have tried to reach out and regulate what I’ll call for lack of a better term honest client testimonials. They’re testimonies that clients have chosen to post on these review sites. And the number of attorney regulators have taken the position that these clients and testimonials are the equivalent of attorney advertising.
Many bar regulations don’t distinguish between advertising and other types of communications that lawyers put out. They treat them as the same. And so the regulators look at the perspective of client testimonials in the same perspective. They’re somehow tied to the attorney and, therefore, they must be regulated if the attorney has spoken of them. We’ve seen the same kind of phenomenon in the Securities and Exchange Commission rules. They’ve taken the position that issuers who link to an article have effectively ratified or endorsed the content of that article and are responsible for it.
And we’ve seen that context in the Federal Trade Commission. They’ve taken the position that if an advertiser goes and asks the blogger to write about their product, under certain circumstances, that’s deemed advertising, and the FTC believes the advertiser takes responsibility for the resulting blog post or comment that’s posted by the advertiser’s target. There are a number of limits on that, and let me just mention two quickly. One is the First Amendment applies here. There may be limits on trying to treat one person as responsible for another person’s content.
There is also a statute that hasn’t been well discussed in this area called 47 UST230 that basically says, for lack of a better term, websites aren’t liable for third party content. And in a situation —
ABA Journal: Now, that’s the Communications Decency Act, right?
Goldman: That’s correct. And that law may very well limit the ability of attorney regulators to hold one party responsible for web content posted by another party. In this case, client testimonials.
Buzard: Does it change the equation anywhere the lawyer buys the site or is actually a sponsor of the site where the comment is made? What is it? Avvo?
ABA Journal: Right. Well, you claim the site. Is that what you’re speaking of?
Buzard: Yeah. Where you claim the site on Avvo, and then the comments can be made. In other words, the attorney then becomes kind of a de facto sponsor.
Goldman: Well, for example, on Avvo, an attorney can claim his or her profile and can say, “That’s me.” Now, there can be a variety of content that is attached to that profile, some of which are in the attorney’s control and some of which aren’t. Something like client testimonials if, in fact, they are the honest and true perspective of the client, it seems to me at that point treating them as the equivalent of attorney advertising runs afoul of a number of concerns I just mentioned.
Buzard: Even though the attorneys claimed the site?
Isani: Right. This is Jamie Isani. I would agree with that from a First Amendment perspective. If I see that there is a fight about me and there’s incorrect information on it, say it says I practice 100 percent securities law when I say no, I don’t practice securities law. I practice First Amendment law. So I go in to claim that site to change the scope of my practice, I mean, that to me has to be – first of all, I’m not advertising. And that’s just truthful information that I’m communicating. So if the Bar wants to regulate that, let’s say directly, if they want to regulate my communication directly as an attorney, they would have to meet the strictest level of scrutiny.
Buzard: The issue is somewhat different in the area that I’m particularly involved in, and that is US News and Best Lawyers and others of that sort, because while the Bar obviously can’t regulate US News and Best Lawyers, certainly an open question about to what extent can regulators regulate what the lawyers say about it. And that’s where the rubber meets the road and why we’re so passionately wanting the ABA to study the rankings, particularly by the dominant ones, to see if law firms can even be ranked or rated.
And then if it turns out that they can’t or if it turns out that the methodology is fatally flawed on the ones that are there, then we believe that will directly affect the extent to which lawyers can use those rankings in their own advertising, which right now, they’re doing extensively.
ABA Journal: Right. And I would think the key would be disclosures as to how does the site go about its rankings.
Buzard: Well, yes. I know there are many people who say that. And the problem with that is unless you’re a psychometrician or an econometrician or something of that sort, you can read the disclosure of how they do it. And unless you have the formulas and unless you know the weights, which are not disclosed, it all sounds fine. But unless you’re an expert in the field, one can’t tell if it has validity. And as a part of our resolution at the ABA, we also ask that the ranking of law schools, as opposed to law firms, also be included, and they’ve already issued their report saying what is pretty obvious and that is it’s extremely difficult to do.
And let’s see. It says the inherent difficulties attempting to rank law schools and law firms in order of quality or ability should serve as a warning to the organized Bar. So I know the conventional wisdom, and that’s what’s done in New Jersey as well. Just let the ranker or the rater say how they do it. Most people, consumers or lawyers, can’t look at that and see if it has any validity.
ABA Journal: If a lawyer did misuse a rating site and wrote his or her own review and submitted it, wouldn’t it be easier to prosecute and curb that sort of behavior than for an attorney who misused legal advertising that wasn’t a non online form because the trail wouldn’t be as easy to find I would think.
Isani: Well, if the attorney is posing as a client, that could be viewed as a false statement. Discipline could be imposed when you make a false statement. I mean, the First Amendment doesn’t protect false statements.
Buzard: That’s very clear. Anything that is false or misleading, say by a lawyer, that’s pretty easy.
ABA Journal: Because my sense is that for a lot of the attorney regulation groups that don’t want really their members involved with these sites, that’s their concern is that people are going to write up their own reviews and post them. But it seems like if someone actually did that, it would be pretty easy to catch.
Buzard: The related issue is, what about getting your attorney buddies to go on those sites that have attorney so-called peer reviews and getting their attorney friends to write in and say what a great job they did, and then it’s reciprocal, and you do it for the other one.
ABA Journal: I have a question for all of you. Do you think an ABA model rule on the topic of these online attorney ratings would be helpful? And if so, what should it say? Professor Goldman, let’s start with you.
Goldman: Well, I tend to approach it from a pretty laissez-faire approach. I think the best thing the ABA rules could do would be to communicate to all the big bars that they should be very precise about their efforts to regulate attorney rating sites and, for the most part, just get out of the way. So if we needed something to clarify that attorneys posting their own reviews isn’t permissible, go ahead and say that. I don’t think we really need it, as we already discussed. It’s pretty clear that would be impermissible in their existing rules. But it would be really helpful for the ABA to come out and say that, in general, the starting principle is that attorneys aren’t responsible for the words of their clients.
And if clients choose to talk about them in the marketplace, that should be something that we should be encouraging, not trying to put the attorneys on the hook for it.
ABA Journal: And Mr. Buzard, what do you think?
Buzard: Well, again, my focus is more on the rankings and ratings that are also on site, but they’re not with clients. And yes, I think a model rule may ultimately be helpful. But the first issue in my particular area is we can’t frame the rule until we know whether or not these rankings and ratings have any validity at all.
ABA Journal: Ms. Isani, how about you?
Isani: Well, I do think it would be helpful because it would allow attorneys to address all of their constitutional concerns sort of at the outset and perhaps not have to fight these on a bar by bar basis, although that would be the ultimate result. And our primary goal would be to see that it’s only truthful, non-misleading advertising that could be directly regulated. And to the extent that attorneys may be accused of posting anything on these sites that may be misleading, one of the options that we’ve proposed is a takedown notice so that the bar would have to notify the attorney and then ask them to take down something that they find misleading.
ABA Journal: I have a question for all of you. Generally, what did you sense of how most attorneys feel about participating in the rating sites? Are most attorneys aware of them and they’re on it, or is it the other way, and a lot of lawyers don’t know about them or maybe don’t want to be on them?
Buzard: I would think it would be more consumer-oriented lawyers who would be more aware of them. One of the people involved testified before the 2020 Commissioner. I think he said about 100,000 lawyers had claimed their sites. So I think most lawyers, it hasn’t risen to their radar screen except those who I say are more into consumer law. The bigger firms are the ones who are really more involved. And my judgment would be with the things like Best Lawyers and US News and that sort of thing.
ABA Journal: Ms. Isani, what do you think?
Isani: I would tend to agree with that. I think lawyers in the bigger firms aren’t so aware of these consumer rating sites where they may become aware of them and it may claim their profile without realize what they’re really doing. They may just want to make a change to something that they don’t agree with. But for the most part, I’d say lawyers at large firms are largely unaware of how many sites there are.
ABA Journal: How about you, Professor Goldman?
Goldman: So from my perspective, most attorneys instinctively have a negative reaction towards the idea of being reviewed by their customers. We’re not used to it as attorneys. We’re not used to actually having people talking about the quality of our services in an open, public forum. So my general observation is that when lawyers start to realize that their customers are going to start reviewing them, they instinctively recoil in horror. And I think we’re going to have to work through that. I think that’s part of our future. It’s the reality of today. And we’re going to have to have that catharsis.
If I can make a quick analogy, we’re seeing some of the similar phenomena taking place in the medical community. There are all these doctor review sites, and doctors are freaking out about the idea that their patients might be reviewing them. And some doctors have been taking a very aggressive position and trying to squelch online reviews from their patients. They just don’t want to hear it. And I think those doctors are ultimately going to have either a major reconciliation with the modern economy or they’re going to get drummed out.
ABA Journal: Professor Goldman, for this next generation of consumers or perhaps young adult consumers now, do you think that most of them will look to the internet as their primary tool to evaluate the lawyers they want to hire?
Goldman: If you look at what’s going on from another perspective, we’re seeing the massive swelling of entrepreneurship activity in creating online review sites. And basically, you pick your industry, and there’s a niche online review site or more than one that’s targeting that niche, as well as there are these general sites like Yelp that cover many different industries. And what we’ve seen is that customers want to know more about the people that they’re going to be giving their money to. And in the doctor community, I’m doing some work related to the efforts to suppress online reviews, and we’re kind of baffled.
People have more information about restaurant they can choose then they do about the doctor that they choose. And something about that seems really backwards. So as consumers get accustomed to getting the ability to have some previewing information about who the right vendor is for them in the marketplace in restaurants and with respect to consumer electronics, I think we have to acknowledge that that’s going to come for professional services, and that includes us as lawyers.
ABA Journal: All right. Thank you all so much for your time. I really appreciate it.
This ABA Journal Podcast was brought to you by WestlawNext, building on the strengths of Westlaw to bring you the next evolution of legal research. Their most significant innovation in 30 years, it’s a complete research system that gives you confidence you’ve found the most relevant information. And, it elevates productivity with intuitive workflow tools. Learn more at WestlawNext.com.
Last updated April 11 to add the podcast transcript.