By Stacey L. Romberg
(Second of Three Parts)
In my previous article in this series, I discussed the Utah State Bar Association's recent Ethics Advisory Opinion 14-04, which addressed the issue: "What are the ethical limits to participating in attorney rating systems, especially those that identify ‘the Best Lawyer' or ‘Super Lawyer'"?1 In this article, I'll explore the Washington State Bar Association's 2014 Advisory Opinion 201402, which provides ethical insight into an attorney's "participation in online social media profile websites."2
What Are the Ethical Limits to Participating in Attorney Rating Systems?
The Washington opinion focuses on websites featuring attorney profiles and rating systems, such as Avvo. The opinion describes the website at issue as follows:
Lawyer claims her "profile" on a social media website that is designed to provide personal and professional information about lawyers to non-lawyers and other lawyers. The website permits lawyers to post, inter alia, their contact information, education, practice areas, experience, and articles. It is not possible for Lawyer to disclaim her profile after claiming it.3
The website also generates a numeric and descriptive rating for each lawyer who claims his or her profile, as well as for some lawyers who have not claimed their profiles. The numeric and descriptive rating are affected, at least in part, by the amount of information that a lawyer provides and the lawyer's participation on the website. The website does not disclose how it determines the numeric and descriptive rating.
It is possible for a less-experienced lawyer to obtain a much higher rating than a much more experienced lawyer by simply providing more information about the lawyer's practice.4 Enrolled lawyers can also attach specific "peer endorsements" to another lawyer's profile. Visitors to the website can also attach publicly viewable "client ratings" to a lawyer's profile. Peer endorsements affect the rating, but client ratings do not.
Relying primarily upon Washington Rules of Professional Conduct 7.1 and 7.2, the Washington opinion states, "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."5 This conclusion, to some degree, parallels the standard articulated by the Utah Bar.6
As explained in my prior article, "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 weigh this information, primarily because we don't want anyone gaming the Avvo Rating system.'"
In reviewing the Washington opinion and comparing it to Avvo's clear language declining to disclose the basis of its numerical calculations, it is difficult to imagine how an attorney in Washington can claim his or her Avvo profile and otherwise participate on the Avvo website while remaining in compliance with the ethical rules.
Because many Washington attorneys have already claimed their profiles on Avvo and other similar ratings websites prior to this opinion being issued, the Washington opinion provides the following guidance: "If, after claiming her profile, Lawyer determines that the [website fails to meet the Washington standard], then the lawyer must limit participating to ensuring that information is accurate and should consider posting a disclaimer, if it is reasonably feasible to do so."7
What Ethical Limits Should an Attorney Consider When a Fellow Attorney Provides an Endorsement, and Then Requests a Reciprocal Endorsement?
Attorneys occasionally log on to various ratings websites, endorse their colleagues, and then request that their colleagues endorse them in return in order to enhance their ratings.8 The Washington opinion cautions lawyers against reciprocal endorsements as follows:
Lawyer may only endorse another lawyer if the endorsement is accurate. RPC 8.4(c) (prohibiting deceptive conduct). Lawyer must not endorse another lawyer unless she has sufficient knowledge about the other lawyer to provide an accurate statement. Lawyer must not provide an endorsement to another lawyer simply because that lawyer agreed to endorse Lawyer. Doing so would be giving something of value (i.e., an endorsement) for recommending the Lawyer's services. RPC 7.2(b).9
The two recent ethics advisory opinions issued by the Utah State Bar and the Washington State Bar Association indicate that attorneys may well be violating the Rules of Professional Conduct by choosing to participate in attorney ratings systems. Hopefully, and in all probability, additional state bars will weigh in on this issue to provide further guidance. Disciplinary decisions will likely be coming down the pike that will shed further light on what is ethically permissible.
With this information, attorneys need to shift their analysis regarding participation from "What's in it for me?" to "What do the rules require?" Attorneys may feel a need to participate in these rating systems in order to market their practices or perhaps may have a desire to correct the errors that tend to be rampant on unclaimed website profiles. However, this need is clearly outweighed by both the necessity of compliance with the Rules of Professional Conduct and the accompanying desire to promote clarity, transparency and professionalism in the way lawyers market their practices.
Attorneys should exercise significant caution when choosing to participate in any rating system. Lawyers need to meticulously examine the details concerning how those ratings are determined. Does sufficient disclosure exist to enable the public to readily understand exactly how the rating is calculated? If the answer to that question is no, then the answer to the question of whether an attorney should participate should also be no.
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 second 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 in these systems, and if and how to respond to online criticism on these websites.
Originally published online in the July 2015 edition of GPSolo eReport. Reprinted with permission.
1 Utah State Bar, Ethics Advisory Opinion Committee, Ethics Advisory Opinion 14-04, 1. See King County Bar Association Bar Bulletin, July 2015, at __.
2 Washington State Bar Association, Advisory Opinion 201402, page 1.
3 As explained in my prior article in this series, 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.
4 Avvo's website states, "If you add information to your profile, you may well find that the Avvo Rating increases." Please note that any website language quoted in this article is accurate as of the date this article was written, but may have been subsequently revised.
5 Washington State Bar Association, Advisory Opinion 201402, page 2.
6 Utah State Bar Ethics Advisory Opinion 14-04 10 states:
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.
7 Washington State Bar Association, Advisory Opinion 201402, page 2.
8 These sorts of reciprocal endorsement requests also occur in relation to other websites such as LinkedIn.
9 Washington State Bar Association, Advisory Opinion 201402, page 2.