I’ve been talking about CDA 230, so let’s explore a case of how “the law that makes the internet go” interfaces with the Rules of Professional Conduct governing the practice of law.
Scintillating, right? Stick with me here . . .
We’re talking online client reviews. As we all surely know, EVERYTHING is reviewed online – even lawyers.
It’s strange that the Texas Bar is wading into this one in 2020, given that client reviews have been around for a couple of decades now. But hey – the law moves slowly and deliberately, right?
In Opinion 685, issued crisply in January, 2020, the Texas Bar determined that Texas lawyers CAN ask their clients to leave online reviews. Hell, they can even ask their clients to leave positive reviews!
What interests me about the conclusion in this otherwise-blindingly-obvious opinion is this little tidbit, tacked on near the end:
But, if a lawyer becomes aware that a client made a favorable false or misleading statement or a statement that the client has no factual basis for making, the lawyer should take reasonable steps to see that such statements are corrected or removed in order to avoid violating Rules 7.02(a) and 8.04(a)(3).”
Would an attorney on the receiving end of such a review be doing the right thing to ask the client to take the review down or pull back on the praise? Of course.
But is doing so a requirement? Like, a must-do-on-pain-of-being-disciplined requirement?
And not just because of the uncertainty and vagueness involved in making this a hard requirement. No, rather because 47 USC 230(c)(1) dictates:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
While typically thought of in the defamation context — a forum site is not responsible for defamatory content posted by its users — it would apply equally here: CDA 230 prevents the application of state licensing rules to hold attorneys responsible for reviews posted by their clients. 1
Despite the heavily-litigated history of CDA 230, it’s unlikely this particular issue will ever see the courts. Attorneys are too cautious about threats to their licenses, the steps required to comply are so minimal, and bar counsel usually have bigger fish to fry anyway. Still, it’s instructive of the genius of this little law, and how far it reaches to remove friction from the free flow of information online.
- That is, provided the attorney didn’t write the review for the client, or create the client and review from whole cloth. CDA 230 doesn’t give businesses a pass for astroturfing. ↩