Several states prohibit or significantly limit the use of client testimonials, and many others require that attorneys disclaim such testimonials with something along the lines of “results not typical; every case is different.”
However, what had been a rule covering affirmative use of testimonials by attorneys (the traditional inclusion of client testimonials in advertising prepared by the attorney) has been extended by many attorneys – and a few state bars – to also cover all of those places online where consumers can leave client reviews. In this view, it matters not that such reviews aren’t chosen or placed by the attorney, and the attorney can’t control whether and how they appear. They are “testimonials” under the rule, and are thus covered by it.
Which is nonsense.
In fact, it matters a great deal whether an attorney is paying for a marketing campaign that includes carefully-chosen statements from clients, or whether we are talking about feedback freely left by a client on an online forum.[ref]And some, including the FTC, would go even further, and say this misses the bigger picture: that testimonial advertising is really useful to consumers and shouldn’t be restricted in any way as long as it it not written by the attorney or marked by deception in some other way.[/ref]
Keep in mind that the commercial speech doctrine dictates that bars not limit even attorney-massaged-and-paid-to-place testimonials without a very good reason. And as the Federal Trade Commission has pointed out to state bars, there is nothing intrinsically wrong with testimonial advertising; in fact, many consumers find reading about the experiences of other clients incredibly helpful in making an informed choice of counsel.
Of course, this doesn’t mean that attorneys should have free rein to use testimonials. Bogus reviews, or those that are actually misleading, can still be proscribed by state attorney regulators. No attorney is going to get much sympathy for resorting to such tactics.
But broad prohibitions, based only the potential for testimonial advertising to deceive, cannot withstand constitutional scrutiny. This explains why limitations on testimonial advertising have been uniformly shot down when challenged in federal court.[ref]See Alexander v. Cahill, 598 F. 3d 79, 92 (2nd Cir. 2010); Public Citizen v. Louisiana Attorney Disciplinary Board, 632 F.3d 212, 222 (5th Cir. 2011).[/ref]
And that’s the law that applies to traditional testimonial advertising. When it comes to user feedback left online, directly by consumers and without control or paid placement by an attorney, there is an entirely new layer of analysis that applies.
For starters, it’s hard to imagine that a state bar rule holding attorneys responsible for comments left by third parties could meet the Central Hudson test.[ref]Unless, of course, the attorney has written the reviews herself. This is known as “astroturfing” – and it’s a really, really bad idea.[/ref] But even more important is this: Under federal law, attorneys categorically cannot be held responsible for things that are written about them and posted online by non-controlled third parties.
What’s that, you say? It’s due to what I like to call “the law that makes the internet go:” 47 U.S.C. 230(c)(1), an unassuming little statute that reads:
“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.”
Over the last two decades, there has been an awful lot of litigation over what these twenty-six words mean. But the thrust of these cases has been clear: this statute – colloquially referred to as “CDA 230” – categorically immunizes both forum providers and users from liability for content published by third parties.[ref]See Zeran v. AOL, 129 F.3d 327 (4th Cir. 1997); Ben Ezra, Weinstein & Co. v. America Online, 206 F.3d 980 (10th Cir. 2000); Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc. 519 F.3d 666 (7th Cir. 2008).[/ref][ref]Immunity is only lost if the forum or user has sufficient involvement with the creation and development of the content to be deemed an “information content provider.” See Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) Thus, an attorney could lose immunity if, for example, they told a client what to write in an online review.[/ref]
Importantly, the treatment afforded by CDA 230 preempts any state law to the contrary. There hasn’t been a CDA 230 case in the attorney discipline arena yet. But there’s little to no chance that a state bar taking this position – that third party comments left online are the responsibility of the subject attorney – would find its rule surviving a CDA 230 challenge.