Online Ratings and Reviews: Great Business Development, Ethical Traps, or Both?

Transcription

1 Online Ratings and Reviews: Great Business Development, Ethical Traps, or Both? 1 B y J a s o n M c G r a t h & T o d d G o n y e r f o r t h e M e c k l e n b u r g C o u n t y B a r s S o l e P r a c t i t i o n e r & S m a l l F i r m S e c t i o n O c t o b e r,

2 Rule of Professional Conduct Rule 7.1 Communications Concerning a Lawyer's Services (a) A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it: (1) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; (2) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or (3) compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated.

3 Rule of Professional Conduct 7.2 Rule 7.2 Advertising (a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media. (b) A lawyer shall not give anything of value to a person for recommending the lawyer's services (c) Any communication made pursuant to this rule, other than that of a lawyer referral service as described in paragraph (d), shall include the name and office address of at least one lawyer or law firm responsible for its content. 3

4 Rule of Professional Conduct 7.3 Rule 7.3 Direct Contact with Potential Clients (a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a potential client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain (c) Targeted Communications. Unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2), every written, recorded, or electronic communication from a lawyer soliciting professional employment from a potential client known to be in need of legal services in a particular matter shall include the statement, in capital letters, "THIS IS AN ADVERTISEMENT FOR LEGAL SERVICES" (the advertising notice) (e) For purposes of this rule, a potential client is a person with whom a lawyer would like to form a client-lawyer relationship. 4

5 2012 FEO 1: Use of Client Testimonials in Advertising Opinion rules that testimonials that discuss characteristics of a lawyer s client service may be used in lawyer advertising without the use of a disclaimer. Testimonials that refer generally to results may be used so long as the testimonial is accompanied by an appropriate disclaimer. The reference to specific dollar amounts in client testimonials is prohibited. (Also see 2007 FEO 4) Basically, Soft (general) endorsements are allowed with no disclaimer; Hard (detailed) endorsements must have a disclaimer; specific dollar amounts completely prohibited. 5

6 2012 FEO 1: Use of Client Testimonials in Advertising 6 No Disclaimer Needed: Very knowledgeable Excellent service Very patient Impressed and pleased by commitment/service Courteous Disclaimer Needed: Charges were dropped Medical bills were paid Got my benefits Not allowed: He was able to settle my case for $100,000.00

7 2012 Formal Ethics Opinion 8: Lawyer s Acceptance of Recommendations on Professional Networking Website 7 Opinion rules that a lawyer may ask a former client for a recommendation to be posted on the lawyer s profile on a professional networking website and may accept a recommendation if certain conditions are met. The lawyer may only accept recommendations that comply with the Rules of Professional Conduct that pertain to advertising.

8 2012 Formal Ethics Opinion 8: Lawyer s Acceptance of Recommendations on Professional Networking Website Pursuant to 2012 FEO 1, a lawyer may accept a client recommendation that is limited to a discussion of the characteristics of a lawyer s client service. If the recommendation includes general references to the results the lawyer obtained for the client, the lawyer may accept the recommendation if it can be accompanied by an appropriate disclaimer. In addition, the lawyer must review the recommendation for any confidential information that the lawyer believes should not be published online. Therefore, it may be necessary for the lawyer to ask the client to add disclaiming language or to delete certain content. 8

9 2012 Formal Ethics Opinion 8: Lawyer s Acceptance of Recommendations on Professional Networking Website A lawyer may ask a current or former client for a recommendation that consists of comments indicating the client's level of satisfaction with certain aspects of the lawyer-client relationship. See 2007 FEO 4. 9

10 LinkedIn One-Click Endorsements - Permissible? 10

11 Permissible to client? 11 We thank you for having been a valued client, and wonder if you d be interested in sharing your experience with our firm with other potential clients? If you are interested in sharing your comments about the firm and/or Ms., for your convenience we have provided links to several sites which allow you to submit ratings and reviews. Of course, it is up to you what to say, but you probably do NOT want to share the details of your legal matter or the actual fee you paid.

12 Permissible request to fellow lawyer? Hey John, can you do a review for me on LinkedIn? Just the typical stuff, how great a lawyer I am, blah, blah, blah. Thanks. 12

13 Permissible? 13 Howard is an exceptional attorney and very knowledgeable regarding landlord/tenant law. He is an invaluable resource to any property manager or owner dealing with legal issues. I would highly recommend retaining Howard's legal services. December 8, 2009, Karen was Howard's client

14 Permissible? 14 As a fellow trial attorney representing injured victims in New York, I am always in the need of recommending an experienced litigator in Florida. Michael is always the best choice for my firm. I know each case will be handled in a professional manner, with the best possible outcome. I know great trial lawyers are hard to find, so it is very easy for me to give Michael the best possible recommendation!less May 31, 2013, David was with another company when working with Michael at....

15 Permissible? 15 Best lawyer in town. Posted by a Wrongful Death client, about 4 years ago. I recommend Steven I hired Steven more than 3 years ago. Steven handled my Wrongful Death matter. I have previously worked with no lawyers. From the way this man is handling a family case. After 3yrs. of hard work from this guy I would have to say that Steven is not your typical "Shark" lawyer, unless your on his recieving end of it all. So far he's treated my family with integrity, respect, honor, and attentievness. He has gained my family's trust and we stand behind him 100%. If you have a serious case you need delt with Steven is your guy to hire.

16 Permissible? 16 I've worked with Donna on several complex cases. In my experience, she is always courteous, well prepared, and able to effectively represent her clients. March 13, 2010, Jason was with another company when working with Donna at....

17 Permissible? 17 About Me: Yes, this really is an Oscar. It was heavier than I thought. To win one requires dedication to your art. I am dedicated to fighting for the rights of my clients by applying the rule of law.

18 Other scenarios to be mindful of When persons you don t know endorse you, or when persons who don t have a sufficient basis endorse you. 2. The inherent feeling that you should endorse someone who has endorsed you but you don t feel that you ethically can. 3. When the endorsement is actually inaccurate. 1. E.g., someone gives you a testimonial for a class action case, when actually it was just a lawsuit with multiple parties. 4. When the review violates the Rules 5. When you get a negative review.