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2018 Formal Ethics Opinion 1

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Participation in Website Directories and Rating Systems that Include Third Party Reviews

Posted by Eben Rawls, State Bar Councilor for the 26th Judicial District (2016 – Present)

The opinion explains when a lawyer may participate in an online rating system and a lawyer’s professional responsibility for the content posted on a profile on a website directory

Inquiry #1:
May a lawyer “claim her profile” or set up a profile on a website directory or business listing service such as Google’s My Business, LinkedIn, or Avvo and provide information for inclusion in the profile?

Opinion #1:
Yes, if the information provided by the lawyer and as presented in the profile is truthful and not misleading. Rule 7.1(a).

Inquiry #2:
May a lawyer pay to be included in a website directory of lawyers?

Opinion #2:
Yes. A lawyer may pay the reasonable costs of advertisements. Rule 7.2(b).

Inquiry #3:
May a lawyer provide profile information to a website that will use the information to rate the lawyer in an online lawyer rating system?

Opinion #3:
Yes, if the information provided by the lawyer is truthful and not misleading. Rule 7.1(a). In addition, no money may be paid by the lawyer for a rating and, before voluntarily providing information to a rating system, the lawyer must determine that the rating system uses objective standards that are verifiable and would be recognized by a reasonable lawyer as establishing a legitimate basis for evaluating the lawyer’s services. See, e.g., 2003 FEO 3 and 2007 FEO 14. Further, the standards for the rating system must be disclosed to the public at a location on the website that a user of the website can readily find.

Inquiry #4:
If a lawyer participates in a website directory, is the lawyer professionally responsible for claims on the website about participating lawyers such as statements that the participating lawyers are “top rated” or “the best”?

Opinion #4:
Yes, the lawyer is professionally responsible for statements or claims made about the lawyer or the lawyer’s services and may not participate in any communication about the lawyer that is false or misleading in violation of Rule 7.1.

Pursuant to Rule 7.1(a)(3), a communication is false or misleading if it “compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated.” Further explanation of this prohibition is set out in Comment [3] to Rule 7.1 which states that “[a]n unsubstantiated comparison of the lawyer’s services or fees with the services or fees of other lawyers may be misleading if presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated.” Characterizing lawyers listed in a website directory as “top rated” or “the best” is a comparison of the participating lawyers’ services with those of other lawyers. A lawyer may not participate in such a directory unless objective, verifiable standards for participation, as required by 2007 FEO 14, Advertising Inclusion in List in North Carolina Super Lawyers and Other Similar Publications, are applied and disclosed by the website.

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Inquiry #5:
A website directory that permits lawyers to “claim their profiles” also allows consumers—usually present and former clients—to post “reviews” of a lawyer on the lawyer’s profile page. May a lawyer ask present or former clients to post reviews on her profile page?

Opinion #5:
Yes, as long as there is no quid pro quo. Rule 7.2(b)(a lawyer shall not give anything of value to a person for recommending the lawyer’s services). Under no circumstances may a lawyer solicit, encourage, or assist in the posting of fake, false, or misleading reviews. Rule 8.4(c).

Inquiry #6:
When a client is pleased with the lawyer and her services, the client’s posted review on the lawyer’s profile or webpage may contain hyperbolic accolades such as the lawyer was “the best,” “awesome,” “the smartest,” “the toughest,” etc. Is a lawyer required to seek the removal of any such review?

Opinion #6:
No. Most users of the Internet understand that reviews by third parties generally contain statements of opinion, not fact. To the extent that a third-party review is a statement of opinion about the lawyer or her services, the lawyer is not professionally responsible for the statement and does not have to disclaim the review or take action to have the review removed or redacted from the lawyer’s profile or webpage. However, Rule 7.1(a) (2) and (3) prohibit a lawyer from engaging in misleading communications that create unjustified expectations or that compare a lawyer’s services with the services of other lawyers unless the comparison can be factually substantiated. If a review contains a material misstatement of objective fact, however, the lawyer must take action to have the review removed or edited to delete the misstatement or to post a disclaimer. For example, the lawyer must take action to remove, redact, or disclaim a review that falsely states that the lawyer obtained a million-dollar settlement.

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Inquiry #7:
Lawyer A, at the urging of a marketing firm, initially claimed her website profile or set up business pages on a number of websites like Facebook. However, she tired of posting to the profiles and pages, and soon ceased to visit the majority of them altogether. Most of the profiles and website pages allow for third party reviews that Lawyer A no longer reads.

Is Lawyer A responsible for the content of the reviews posted on these website profiles and pages?

Opinion #7:
No, a lawyer is professionally responsible only for third-party content about the lawyer of which the lawyer is aware or reasonably should be aware. The lawyer is not required to monitor online profiles or pages if the lawyer does not visit the website, post to that website or otherwise actively participate in the website. If a lawyer has abandoned a profile or webpage and the lawyer is unaware of the content of the reviews posted on the profile or webpage, the lawyer has no professional responsibility relative to that content. However, if the lawyer becomes aware, or reasonably should be aware, that material misstatements of fact are included in reviews posted on her profile or webpage, the lawyer is professionally responsible and must take action to have the offensive content removed or an explanatory disclaimer posted.

Inquiry #8:
A lawyer determines that third-party generated content on her profile on an online directory contains material misstatements of fact and that she is professionally responsible for seeking to remove or disclaim the misstatements. When she asks the website to remove the content or post an explanatory disclaimer, the website refuses to do so. What should the lawyer do?

Opinion #8:
The lawyer must withdraw from participation in the website and seek to have the lawyer’s profile or page on the website removed.

Inquiry #9:
Is a lawyer required to seek the removal of negative reviews that the lawyer perceives to be false or misleading?

Opinion #9:
Because there is no risk of creating unjustified expectations, there is no duty to correct or seek removal of a negative review posted on a lawyer’s profile or website page. Nevertheless, the lawyer may seek removal of negative reviews to protect the lawyer’s reputation. Lawyers are cautioned to avoid disclosing confidential client information when responding to a negative review. See Rule 1.6(a).

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Inquiry #10:
For a monthly fee, a website offers a premium service called “Pro” that is promoted as enabling a lawyer to “upgrade” the lawyer’s profile on the website. This service provides the following benefits according to the website: no competitive ads will be shown on the lawyer’s profile page; the lawyer’s contact information is shown in a search result; the lawyer can see who is contacting her by phone, email, or on her website; the lawyer can select the best reviews and promote them at the top of the profile page; and the lawyer can write her own headline at the top of her profile. In addition, under the lawyer’s photo, whether it appears on the lawyer’s profile page or in a search result, the word “Pro” appears. On search results, a sidebar states that “Pro” indicates that information is “verified.” May a lawyer subscribe to this service?

Opinion #10:
Yes, if the information on the profile page continues to be truthful and not misleading and an explanation of the “Pro” designation appears in a prominent location beside or near the designation wherever the designation appears on the lawyer’s profile or web pages. In the absence of the explanation that the designation indicates that the lawyer paid for enhanced services, the designation implies that lawyers without the designation are not professional or “Pro.” This is a comparison of the lawyer’s services with the services of other lawyers that cannot be factually substantiated in violation of Rule 7.1(a)(3). If the website does not post the explanation, the lawyer must do so or must discontinue the premium service.
In addition, to avoid misleading users, if only selected reviews can be read by a user, there must be an explanation that the lawyer has selected the best reviews to promote. If there is an implication that the selected reviews are the only reviews that the lawyer has received or, if the lawyer has received unfavorable reviews and the profile page falsely implies that the “promoted reviews” are typical, there must be an explanation.

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