Privacy Law

Lawyer sues Avvo, says unauthorized use of professional info violates right of publicity

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Updated: A Chicago attorney has sued Avvo, contending that the company’s online lawyer directory is violating a state statute by using professional information on the site without permission.

Plaintiff Moria Bernstein alleges in her lawsuit (PDF) that Avvo is violating an Illinois right of publicity law that bars use of “an individual’s identity for commercial purposes during the individual’s lifetime without having obtained previous written consent from the appropriate person or persons,” the Cook County Record reports.

Represented by attorney Thomas Zimmerman and Zimmerman Law Offices, Bernstein wants to pursue the suit on a class action basis. She is seeking a court order barring unauthorized use of her own and other lawyers’ information. She is also asking for statutory and punitive damages and attorney fees.

Speaking with the ABA Journal on Thursday, Avvo’s chief legal officer Josh King said he expected the “bizarre” and “completely ludicrous” complaint to be dismissed on the pleadings.

A similar lawsuit was filed against Avvo last year in federal court in San Francisco, King said, and the company responded with a motion to strike under California’s strategic lawsuit against public participation law, which is still pending.

Although Avvo is still reviewing the Bernstein complaint, which King said he received Thursday, he said the company will consider filing a similar response in the Illinois litigation.

If, in Bernstein’s case, the company had published an ad that said “Moria Bernstein, Chicago lawyer, thinks Avvo is great,” without her OK, that would violate her right of publicity, King told the ABA Journal.

However, if the theory of her suit is correct, the entire American media industry would be subject to similar litigation, King said.

Zimmerman had a different perspective. The issue is advertising that Avvo sells to competing lawyers, utilizing the “likeness” of an attorney, with or without a photograph, that is established on an Avvo profile page, he told the ABA Journal on Thursday.

The profile lists the attorney’s name and professional credentials, without the attorney’s permission, and then competitors pay to put their own ads on the attorney’s Avvo page, Zimmerman said. “In order to stop that, Avvo requires that you pay them a fee.”

Thus, he said, Avvo is indeed profiting from using an individual’s identity, in a manner prohibited by the right of publicity statute.

Avvo was sued in 2007 over its numerical ranking system; the plaintiffs lost that suit on First Amendment grounds, Crain’s Chicago Business (sub. req.) reported. A Florida lawyer sued Avvo in 2010, alleging Avvo engages in “punitive, coercive and manipulative business practices.” That suit was transferred to Washington state, where Avvo is based, and dismissed in 2012 under Washington’s anti-SLAPP law.

Avvo spokeswoman Laura Morarity told Crain’s that the suit will have no impact on the rollout of Avvo’s flat-fee legal services program, which was announced Tuesday.

Updated Feb. 11 to include comments from Josh King and Thomas Zimmerman and information from Crain’s Chicago Business.

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