Why is it bad when bars don’t pay attention to the first amendment limitations on their ability to regulate? Because it leads attorneys to extrapolate into wildly limiting restrictions on the rights of attorneys to communicate.
To whit, this three-part series in the ABA GP Solo eReport, “Attorney Rating Systems: Should You Play?” In the series (or at least the first two parts; the third part comes out in August), attorney Stacey Romberg concludes that “it is difficult to imagine” how Avvo could meet the standard for attorney use of the Avvo rating and profile under ethics opinions issued by Utah and Washington. 1
But it’s not that difficult.
First of all, the states don’t have unfettered discretion to regulate how attorneys communicate. It’s fine for them to say that they won’t allow attorneys to participate in pay-to-play or other forms of ratings advertising that deceives consumers. But it’s quite another to fret, as Romberg does, that vague terms like these cut against attorneys using ratings:
“the lawyer ensures that the methodology or process used to determine the rating is fully disclosed and explained using plain language and is conveniently available to the public” [Utah] or
“If Lawyer determines that the website’s numeric and/or descriptive ratings of lawyers are not based upon the lawyer’s performance or merit and the website does not disclose how the ratings are calculated, then the lawyer must not participate in the website.” [Washington]
As I rail on, repeatedly, guidance like this from state bars can’t be read expansively. It must be read narrowly; that’s required by the First Amendment, even for commercial speech.
So this language from the state bars? Read it as prohibiting communications that are actually deceptive – like ratings that are paid for or made up (or where there is no way for consumers to tell if the rating is paid for or fictional). But it doesn’t create any uncertainty, whatsoever, about legitimate ratings such as those published by Avvo (or Superlawyers, Martindale-Hubble, Best Lawyers, or Chambers for that matter).
To emphasize: despite the handwringing about whether any such sites, including Avvo, provide adequate information about how ratings are calculated, we all provide more than enough. Why? Because the only test of whether the information is “fully disclosed” or displayed “conveniently” enough is that of consumer deception. Is there something about the rating system that’s going to deceive consumers into thinking it’s something it’s not? No? Than stop worrying about it.