Posted Oct 28, 2009 04:36 pm CDT
Updated: South Carolina lawyers tempted to update their listings on websites such as LinkedIn and Avvo should consider a new ethics opinion by the state bar’s Ethics Advisory Committee.
The advisory opinion says lawyers who “claim” the website listing by clicking on an “update this listing” link or otherwise adopting the posted information must make sure the material conforms with ethics rules—even information that is posted by others, including clients.
The opinion says websites such as Martindale-Hubbell, SuperLawyers, LinkedIn and Avvo may post informational listings about lawyers without their knowledge or consent. Once a lawyer participates in the listing, the rules change.
“By claiming a website listing, a lawyer takes responsibility for its content and is then ethically required to conform the listing to all applicable rules,” the opinion says.
“The language employed by the website for claiming a listing is irrelevant. (Martindale.com, for example, uses an ‘update this listing’ link for lawyers to claim their listings). Regardless of the terminology, by requesting access to and updating any website listing (beyond merely making corrections to directory information), a lawyer assumes responsibility for the content of the listing.”
The content must not be false, misleading, deceptive or unfair, the opinion says. Client testimonials, barred by state ethics rules, should not be solicited or allowed. More general recommendations or statements of approval—client endorsements—may be allowed if they aren’t misleading and don’t create unjustified expectations.
“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 opinion counsels.
“Frankly, this one baffles me,” Hricik wrote. “I can understand why you can’t ask someone to say something about you that you can’t yourself say, … but am I really under an obligation to make sure nonclients comply with the lawyer advertising rules? Stay tuned, but in the meanwhile, you South Carolina lawyers better go read your various listings, I suppose including Facebook!”
Avvo general counsel Josh King told the ABA Journal the South Carolina ethics opinion “was pretty clearly initiated by someone who had a question about our site. The opinion seems to get in to quite a bit of depth that speaks to how Avvo works.”
Despite the fact that the opinion seems to be crafted with Avvo in mind, King fears it will “create a certain amount of confusion among lawyers.” King says lawyers can’t remove client reviews from the Avvo website or remove their own profiles, although lawyers could delete any additional biographical information they themselves added to the website.
The ethics opinion notes it is not addressing any constitutional questions, and King says those issues loom large. In Florida, a ban on client testimonials is being challenged by Public Citizen, and King suspects the ban will not survive. He also says South Carolina is currently reviewing its own ethics rules regarding lawyer advertising.
King’s overall conclusion: The ethics opinion is “largely a nonissue.”
“I don’t know that attorneys would want to give it a ton of credence,” he said. “It’s not binding. It’s speaking to [advertising] rules that are likely unconstitutional and definitely in flux and under review in the state of South Carolina. Ultimately it speaks to a variety of things outside of a lawyer’s control.”
Updated at 2:09 p.m. to include comments by Josh King.
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