Reviews, Endorsements and Testimonials – Ethical Considerations
Reviews, Endorsements and Testimonials
I am teaching a Rhode Island Bar Association CLE tomorrow afternoon on the Marketing Ethics. In preparation for the seminar, I contacted Rhode Island’s Chief Disciplinary counsel, David Curtin, Esq., to ask him if there was anything in particular he would like me to discuss. One of the issues he mentioned was also one of the main reasons I thought to do the seminar in the first place. We are both concerned about the ramifications of online reviews and attorney replies and the ethical proprieties. I have seen several cases where attorneys responded to online negative reviews and completely violated the rules of confidentiality. Mr. Curtin has had similar, disturbing experiences.
I have a cousin who is fond of saying that, “it goes without saying, but I’m going to say it anyway . . .” It should go without saying that the rules of privilege and confidentiality apply to your replies to online reviews. However, having seen attorneys get into heated discussions with clients in the review/reply scenario, I am going to say it anyway. You must not, no matter how nasty and false the comments about you are, breach confidentiality. Find another way to respond to the review. If you think the nasty review will have an impact on your practice, consider what a disciplinary action from your local disciplinary counsel and a resulting lawsuit from the client might do.
Rule 7 of the Rules of Professional Responsibility generally controls what an attorney can and cannot do in regard to marketing. However, that does not mean we do not have to apply the other rules of ethics to our online marketing efforts, as well. We are obligated to keep our client communications and the details of their cases confidential until and unless that requirement is waived by the client.
In regard to testimonials that an attorney might place on his website, ABA Formal Opinion 10-457 requires lawyers to obtain client consent before posting information about clients on websites. As in most applications of our old rules of ethics to the new arena of internet marketing communications, there have been mixed responses from the courts. In re Skinner, 740 S.E.2d 171 (Ga. 2013), the Georgia Supreme Court rejected a petition for voluntary reprimand where a lawyer disclosed information about a former client in reply to negative reviews on certain websites and instead left the attorney open to more severe sanctions by the court. The Illinois Supreme Court suspended an assistant public defender from practice for 60 days for blogging about clients and suggesting that a client may have committed perjury, in In re Peshek, M.R. 23794 (Ill. May 18, 2010).
However, the Virginia Supreme Court held in Hunter v. Virginia State Bar, 744 S.E.2d 611 (Va. 2013), that confidentiality obligations have limits when weighed against a lawyer’s First Amendment protections. The court held that although a lawyer’s blog posts were considered commercial speech, the Virginia State Bar could not prohibit the lawyer from posting non-privileged information about clients and former clients without the clients’ consent where the information related to closed cases and the information was publicly available from court records. This would seem to counter the proviso that an attorney needs permission from a client to post information about their case, at least when the information is already public.
“You cannot solicit a review or endorsement from a client while you are actively providing services.”
One of the most powerful things an attorney can include in his marketing are client testimonials. Studies have shown that positive reviews can have a significant influence on a potential client’s selection of an attorney. There are even applications that can help you solicit and publish reviews from your clients on your website. In addition, there are several third party sites that also allow reviews and endorsements and some that encourage them.
What are an attorney’s responsibilities regarding these reviews and endorsements? We have several responsibilities. For instance, you can request a review or endorsement, but there can be no quid pro quo. You cannot even offer a discount to a client for a review. Also, your work for the client must be completed. You cannot solicit a review or endorsement from a client while you are actively providing services. This would place undue pressure on a client to provide a favorable review and that is not generally allowed.
If your local rules of ethics prohibits you from guaranteeing success or making a claim of specialty, for instance you may have an obligation to clarify or disclaim a review that makes those claims on your behalf, if there is a means for you to do so. Most review sites allow you to reply to a review and some sites allow you to hide a review. If a client review claims that you are an “expert” in a particular area or that anyone that hires you is guaranteed to win their case, the rules of ethics would require you to disclaim, or at least address and “clarify” those comments.
As always, you must make sure that you are aware of the ethical requirements of your particular jurisdiction as they do vary. Use common sense and avail yourself of the opportunity to obtain an advisory opinion when possible. Our marketing environment and the rules that guide us are changing and you do not want to unintentionally make yourself a test case if you can avoid it.
Carl P. DeLuca, Esq
March 1, 2017