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Lawyers can’t ask clients to evaluate their services for a ratings Web site

Senior Editor Regular News

(Editor’s Note: The advertising rules were substantially amended in 2013 and lawyers may now ask a client to leave a rating or review provided that the rating/review otherwise complies with the advertising rules, including the testimonial requirements of Rule 4-7.13(b)(8) and the filing requirement in Rule 4-7.19.)

Bar advertising rules do not allow lawyers to ask clients or former clients to evaluate their services on the Web site of a national lawyer rating service, according to the Bar Standing Committee on Advertising.

The committee, which met September 11 in Tampa during the Bar’s General Meeting, said in that situation the attorney was in effect asking the client for a testimonial and hence is governed by the ad rules. Bar Rule 4-7.2(c)(1)(J) prohibits the use of testimonials in lawyer ads.

The company involved is, which runs a national lawyer rating service and also gives both lawyers and clients a chance to comment on a particular attorney’s services.

“It seems as though the Avvo process affords the lawyer the opportunity to ask for a kind testimonial and have a third party be the content controller,” said committee member Gary Lesser.

“Essentially what we’ve got here is a pretty clear case of an attorney asking his clients to do a testimonial,” committee member Hal Lewis added.

But Boca Raton attorney Joel Rothman, who was appealing a Bar ethics staff opinion on the matter, disagreed.

“I am not providing that information. I have absolutely no role whatever in writing or posting that information [on the Avvo site],” he said of the client feedback.

He said that Avvo has a service that allows the attorney to provide client and former client e-mail addresses and then has a standard message, which the attorney can alter, to request the clients to write a review of the attorney’s services.

“The request for feedback from the former client was without any coaching or any attempt to put words in the client’s mouth,” Rothman said. “I basically took the canned text that Avvo has and added a line. . . and sent it out.. . . I have absolutely no control about what is posted.”

Josh King, general counsel for Avvo, said the client reviews are an important part of the company’s services.

“We have thousands and thousands of client reviews on the site and we’ve gotten consistent feedback from consumers that they find the client reviews valuable,” he said, adding the overwhelming majority of client reviews are positive.

King said the company reviews all client feedbacks to verify they are real clients, and if an attorney objects, a further inquiry is made to ensure it is a real client that left the evaluation. He also explained that an attorney cannot remove a review left by a client. Peer reviews from other lawyers are factored into an attorney’s Avvo rating, while client reviews are not, King said.

He likened the Avvo service to attorney reviews now being offered by Martindale-Hubbell and on local Internet forums.

Bar Ethics Counsel Elizabeth Tarbert said the opinion of the ethics staff is there is no problem when clients on their own go to Avvo to leave an attorney evaluation, but when an attorney encourages the client either directly or through Avvo, then that is inviting a testimonial.

The committee voted unanimously that requesting clients or former clients to provide reviews on Avvo did violate the Bar prohibitions on testimonials. The committee declined to answer a question on whether providing e-mail addresses for former clients violated the attorney-client privilege. Tarbert said that question is beyond the committee’s purview. The committee also directed Bar ethics staff to prepare a new opinion on the testimonial issue.

Avvo began business last year by offering ratings of attorneys in 10 states with about half of all attorneys in the country. They now cover 21 states, and added Florida earlier this year. The company uses law firm Web sites, disciplinary records, professional awards, and other factors to establish a rating, which could then be further modified by peer reviews. The company also invites attorneys to post additional information about themselves on the pages the company has established for each rated attorney, and some of that information can also affect a rating.

Tarbert has noted that information that attorneys post on the Avvo page must meet the strictures of the Bar’s advertising rules. The Standing Committee on Advertising has voted in the past that Bar members can use their Avvo rating in advertisements.

After the meeting, Rothman said he planned to appeal the committee’s ruling to the Bar Board of Governors, calling it a First Amendment issue for both him and former clients who might want to leave feedback.

“This dispute is when is it proper for a former client to provide feedback about their experience with an attorney,” he said. “In my opinion, there is no jurisdiction the Bar has in that process.”

Rothman said the Bar apparently doesn’t care if a client leaves a negative review, but is concerned only when a positive review is left that it might be a testimonial.

“The committee seems to think this is the same as if a client sent me a letter with a testimonial, and it’s the same as if I took that out, edited it, and put it on my Web site. That’s not what’s going on here at all,” he said. “Clients are going to a Web site operated by a third party and they are making their opinions known about me. They’re interacting with Avvo, and they’re expressing their views on Avvo.”

King said Avvo also is considering its options.

“I don’t think the outcome (prohibiting Florida attorneys from asking clients to leave online reviews) is required by the rules,” King said. “On Avvo, while an attorney may hope a client leaves a positive review, the attorney has no control over the content of the review.

“It’s overreaching to extend those rules in this way,” King said. “By the same logic, the committee might as well require a Florida attorney to advise his or her clients not to speak positively of the attorney to others.”

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