By Stacey L. Romberg
First of Three Parts
Opinions run high and confusion abounds regarding attorney rating systems. Many solo and small-firm practitioners believe that rating systems such as Super Lawyers are rigged and inherently biased in favor of large law firms. Some attorneys rave favorably about Avvo, believing it provides a fabulous tool to market their practices, while other attorneys rant just as strongly against it, contending that Avvo's rating system lacks legitimacy and merit.
Despite the differing views, two aspects of these rating systems are undeniable. First, attorney rating systems are becoming the norm. They are becoming increasingly well known and more frequently used by both the legal community and the general public. Attorneys use a "good rating" to market themselves to clients; clients then rely on these ratings, at least in part, to select a lawyer. Even if an attorney chooses not to participate, it is impossible to avoid being impacted by this trend because clients still inquire about attorney ratings, review attorney profiles and post reviews.1
Second, thankfully, more state bars are issuing advisory opinions on this topic. Two recent opinions set forth by the Utah State Bar (summarized in this article) and the Washington State Bar Association (to be described in my next article) may help lawyers to make informed choices and avoid the myriad of ethical pitfalls involved in rating systems. Although these opinions are specific to their respective states, they also provide useful guidance to lawyers in any state who have concerns about participating in these rating systems.
Ethical Limits: Utah State BarEthics Advisory Opinion 14-04
In this ethics opinion, issued on November 12, Utah tackled the issue: "What are the ethical limits to participating in attorney rating systems, especially those that identify 'the Best Lawyer' or 'Super Lawyer'?"2
Quoting Bates v. State of Arizona,3 Utah articulated its primary concern as follows:
Deceptive advertising in the legal profession poses a particular risk because "the public lacks sophistication concerning legal services, [and therefore] misstatements that might be overlooked or deemed unimportant in other advertising may be found quite inappropriate in legal advertising."4
Relying on both Rule 7.1 of the Utah Rules of Professional Conduct (prohibiting a lawyer from making false or misleading communications about the lawyer or the lawyer's services) and a New Jersey Supreme Court opinion concerning the use of lawyer ratings in advertising,5 the Utah State Bar stated:
We conclude that a lawyer's participation in any rating system and use of that rating in the lawyer's advertising is permissible where: (1) the comparing organization has made appropriate inquiry into the lawyer's fitness; (2) a favorable rating from the comparing organization is not for sale and may not be purchased by the lawyer; (3) 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; and (4) the communication disclaims the approval of the Utah Supreme Court and/or the Utah State Bar. Statements that explain in laymen's terms, and do not exaggerate the meaning or significance of professional credentials, are permissible.6
Examining these four requirements, the third one seems the most difficult to define. What precisely does "fully disclosed" mean when referring to the methodology employed by an attorney rating system? In practice, determining whether the amount of information provided is sufficient to meet the standards of ethical compliance can be tricky.
For example, the Super Lawyers rating process rates attorneys based on "12 indicators of peer recognition and professional achievement."7 The Super Lawyers website states: "These indicators are not treated equally; some have a higher maximum point value than others." The website does not disclose the point values related to these factors, nor is disclosure forthcoming on other point values, such as the value of out-of-firm nominations as opposed to in-firm nominations.
With these notable omissions, is the Super Lawyers selection process sufficiently described so as to meet Utah's "fully disclosed" standard?
Best Lawyers in America
Similarly, Best Lawyers in America discusses the methodology behind its selection process at https://www.bestlawyers.com/Downloads/bl-expanded-methodology-int.pdf. Voters rate the nominated attorneys on a scale of 1 to 5 and are also able to provide comments. The website states, "The Best Lawyers editorial staff reviews [emphasis added] the votes and comments.... Listed lawyers are notified of inclusion."
The website does not state that the lawyer with the most votes "wins," so some element of subjectivity is clearly involved. Does this amount of disclosure meet Utah's "fully disclosed" standard?
Avvo describes the basis for its 1 to 10 rating system at http://www.avvo.com/support/avvo_rating. Avvo discloses much less information about the basis for its lawyer ratings than does Super Lawyers or Best Lawyers in America, stating: "The Avvo Rating is based on all of the background information in a lawyer's profile. However, we do not disclose how we weight this information, primarily because we don't want anyone gaming the Avvo Rating system."
In comparing this statement to Utah's requirement that "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," it is difficult to imagine how Avvo meets this standard.
Until more guidance is given through future advisory opinions and disciplinary actions, it is up for debate whether a particular rating system meets the "fully disclosed" standard. Lawyers need to carefully review all aspects of any rating system, including its methodology, before participating in it, and determine their own comfort level with regard to how that rating system stands up to the ethical rules.
Stacey L. Romberg is a Seattle attorney focusing on business law, estate planning and probate. For further information, please see Romberg's website at www.staceyromberg.com.
This article is the first of three installments designed to provide insight into recent ethical opinions governing attorney rating systems as well as specific factors attorneys should consider in deciding whether to participate, and if and how to respond to online criticism on rating websites. Originally printed in GPSOLO eReport, American Bar Association, May 2015 – Vol. 4, No. 10 (reprinted with permission).
1 Avvo creates profiles for attorneys that may contain information about their educational backgrounds, bar memberships, practice areas, contact information, etc. Avvo will not delete a profile upon request, unless the lawyer is no longer in practice. Lawyers can only add to or correct the information on their Avvo profile by "claiming" it. Once an Avvo profile has been claimed, a lawyer can never unclaim it.
2 Utah State Bar Association, Ethics Advisory Opinion Committee, Ethics Advisory Opinion 14-04, 1.
3 433 U.S. 350, 383 (1977)
4 Id. at 5.
5 In re Opinion 39 of Committee on Attorney Advertising, 961 A.2d 722 (N.J. 2008).
6 Utah State Bar, supra, note 2 at 10.
7 These indicators are: verdicts/settlements; transactions; representative clients; experience; honors/awards; special licenses/certifications; position within law firm; bar and/or professional activity; pro bono and community service; scholarly lectures/writings; education/employment background; and other outstanding achievements. http://www.superlawyers.com/about/selection_process.html. Any website language quoted in this article is accurate as of the date this article was written, but may have been subsequently revised.