Ethics Question of the Month - June 2020
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Paul is a plaintiff’s personal injury lawyer in solo practice who wants to jump-start his practice. He is aware that many clients resort to the internet when choosing a lawyer to check their ratings by clients. His office has a Yelp listing, but no reviews. His website has a feature for client reviews, but none are posted.
Paul sends an e-mail blast to all his current and former clients and generates a Facebook post soliciting help in elevating his online presence. He encourages clients to post glowing reviews of his practice on as many platforms as they can.
This mass solicitation pays off, as favorable reviews of Paul’s practice begin appearing online. Paul monitors the reviews, and notices that one comment, from an early client, Sarah, appears in identical language on Yelp and on his website client reviews. It says, “Paul is a rock star! He did a great job on my small case, but I know that he has obtained million-dollar judgments for many clients.”
This gives Paul pause because he has obtained only one judgment of over a million dollars. He had one other jury verdict over a million dollars, but the judgment was reduced to under one million dollars because of a comparative causation finding attributing 20% responsibility to the plaintiff. He also has had several settlements in the high six figures. So the statement is only slightly inaccurate, and Paul no longer knows how to reach Sarah to ask her to correct it
Consider the following possibilities:
- Paul’s active solicitation of favorable reviews was unethical.
- Paul is required to correct both comments, because he knows they are inaccurate and convey the wrong impression to potential clients
- Paul is required to correct the review on his website, but not the Yelp comments.
- Paul is required to correct the comment on Yelp, but not the review on his website.
- Paul is not required to correct the inaccurate comments because they are statements by a client and not by him.
According to a recent ethics opinion from the Committee on Professional Ethics, which of the above statements are most accurate?
A. 2 only
B. 3 only
C. 1 and 2
D. 1 and 3
E. 1 and 4
F. 1 and 5
The initial question here is whether it is permissible to solicit favorable online reviews at all. Many attorneys are uneasy about violating the general cultural assumption that those reviews are voluntary, spontaneous, and reviewer-initiated.
The Committee on Professional Ethics issued an opinion earlier this year that “addresses whether lawyers may encourage current and former clients to leave positive reviews or star ratings online.” Ethics Opinion No. 685 (January 2020). The Committee notes that the availability of user reviews on the internet is a relatively “new development” and clearly not considered by the drafters of the Rules. Accordingly, the Committee determined that “the Texas Disciplinary Rules of Professional Conduct do not expressly prohibit a lawyer from requesting search engine or social media reviews” and that the Committee “has not previously addressed whether a lawyer may encourage current and former clients to post positive reviews.” Id. The Committee mentioned reviewing ethics opinions from other jurisdictions, specifically noting that Connecticut has expressly approved of attorneys soliciting favorable online reviews.
Accordingly, the Committee on Professional Ethics concluded, “[U]nder the Rules, a Texas lawyer may ask current and former clients to post favorable star ratings and online reviews about the lawyer.” Thus, possibility 1 (stating that “Paul’s active solicitation of favorable reviews was unethical”) is inaccurate, excluding answers C, D, E, and F.
However, Opinion 685 is quick to caution that “a lawyer has a duty not to make or sponsor any communications that are ‘false or misleading.’” Id. (citing Tex. R. Disc. Cond. 7.02(a)). Although the Rule does not expressly mention online reviews, Comment 2 explains the broad reach of the Rule: “Whatever means are used to make known a lawyer’s services, statements about them must be truthful and nondeceptive.” Moreover, the Opinion notes that Rule 8.04(a)(3) prohibits a lawyer from “engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation.” Tex. R. Disc. Cond. 8.04(a)(3).
Thus, although Opinion 685 concludes that a lawyer may solicit favorable online reviews, it makes clear that “[t]he lawyer must not, however, encourage anyone to make false or misleading statements or statements that the person has no factual basis for making.” Opinion 685.
But the prohibition against soliciting inaccurate statements begs the question of the lawyer’s duties if and when inaccurate statements appear in online reviews, even if not directly solicited. The Opinion stops short of saying that attorneys have a duty to monitor social media to identify inaccurate statements. “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).” Id. (emphasis added). What constitutes “reasonable steps” depends on whether the platform or website is under the control of the lawyer:
• “If the lawyer controls the content of the website or platform where the false, misleading, or unfounded statement resides, the lawyer has an affirmative obligation either to encourage the author to correct the false, misleading, or unfounded statements or to remove the statements entirely.”
• “If the lawyer does not control the website or platform and cannot remove the false, misleading, or unfounded statements, the lawyer should address the matter with the author of the review or consider addressing the concern with the administrator of that platform to see if the review can be removed or revised. Alternatively, the lawyer should consider making a curative comment on the website or social media platform.”
Applying that framework to this month’s question, Paul has an affirmative obligation to correct or remove the inaccurate statement by Sarah in his website client reviews. Because Yelp is not subject to his control, he has no affirmative duty to remove or correct that statement. Although he is encouraged to consider contacting the platform administrator for Yelp, it is a massive operation and it is far from clear how successful he will be in altering someone else’s review, whether positive or negative.
In any event, possibility 2 states that “Paul is required to correct both comments because he knows they are inaccurate. . . .” Because he is only required to correct the review on his own website, possibility 2 is not entirely accurate.
Only possibility 3 is clearly correct. The best answer is B.
Posted: 5/27/2020 12:00:00 AM by
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