I missed this when writing about the Washington State Bar’s new ethics opinion regarding online lead generation, but the bar has also issued an opinion on attorneys participating in an unnamed service that sounds an awful lot like Avvo:
1. May Lawyer claim the profile and provide personal and professional information, knowing that the website will generate a publicly viewable numeric and descriptive rating
that is, at least in part, influenced by the amount of information that Lawyer provides?
2. May Lawyer claim the profile and participate in the website if other users attach to Lawyer’s profile publicly viewable (1) client ratings or (2) peer endorsements about Lawyer’s services?
3. May Lawyer endorse another lawyer in exchange for a reciprocal endorsement?
The WSBA’s conclusions are, unsurprisingly, Yes, Yes, & No.
Despite once again failing to acknowledge the first amendment boundaries on the bar’s ability to regulate in this area, the WSBA concludes that lawyers can indeed use this mysterious service, provided the communications involved are not materially misleading. A few nuggets from, and thoughts on, the opinion:
- Lawyers are to take “reasonable steps” to ascertain how the service will make representations about the lawyer, and should not participate (other than to ensure information is accurate) if the service does not disclose how ratings are calculated.
- Attorneys who claim a profile have an obligation to ensure the information in the profile remains accurate and up-to-date. That’s straightforward enough, and – regardless of what you might think of this as a regulatory mandate – is a critical practice for online reputation management.
- Client reviews and endorsements must be “accurate.” I don’t think that word means what the bar thinks it means – reviews and endorsements are typically statements of opinion, and as such are not amenable to determinations of “accuracy.” In any event, to the extent an endorsement refers to factual inaccuracies, an attorney can delete it from their Avvo profile. However, for reasons that should be obvious, Avvo does not allow attorneys to delete client reviews.
- I rather suspect that the Bar’s reading of an obligation upon attorneys to monitor-and-attempt-to-remove “inaccurate” client reviews and endorsements is preempted by 47 U.S.C. 230(c)(1).
- The Bar says that lawyers can’t “logroll” endorsements – provide an endorsement simply because the other lawyer agrees to post a reciprocal endorsement. I don’t agree with the opinion’s conclusion that reciprocal endorsements violate the rule against “providing something of value for recommending a lawyer’s services.” That rule has been swallowed by its exceptions – including, notably, the right to pay for advertising – and is long overdue to be eliminated. However, we at Avvo have always advocated against logrolling endorsements. Posting – or accepting – endorsements in the absence of familiarity with the other lawyer’s work looks deceptive, shoddy, and cheap. Endorsements are best, for the lawyer and potential clients, if they provide a specific, detailed view of what makes that lawyer stand out.