In the August 2012 issue of the ABA Journal, G. M. Gilisko penned an article, Where the Buck Stops: Lawyers Need to Verify All the Nice Things Being Said About Them Online. The article goes on to examine the alarming trend of “spam” reviews proliferating on third party attorney search engines and ranking sites, such as Google Places, Yelp.com, Lawyers.com, FindLawyers.com, Avvo.com, etc. Many of these reviews are searchable through general search engines such as Google.com and Bing.com. The story then goes on to scratch the surface of why these reviews are showing up – the article implies that someone is financing fake, positive reviews for their own benefit.
However, the main thrust of the article is to examine who is responsible for policing the reviews. It starts by examining the authors of the reviews (i.e. most are anonymous or are unable to be contacted), the third party ranking site, and the larger search engines (i.e. the author contacted Google who indicated that it does not commission the fake reviews and has procedures for consumers to flag questionable reviews). It then examines the responsibility of the actual attorney through a review of the ABA Model Rules and the Federal Trade Commission guidelines for pay-for-positive feedback.
As the article points out, the ABA Model Rules do not apply in California. Rather, the California Rules of Professional Conduct apply. Thus, the article does not go so far as to ascertain whether California attorneys have such an obligation to clear their names of fake reviews. However, from a review of the ABA Model Rules at play, it appears that California attorneys are under the same type of obligation:
- Rule 1-400(D) prohibits the attorney from making any false or misleading statements about his or her legal services, or omit additional information which would provide context.
- Rule 1-320(B) prohibits the attorney from giving anything of value to a third party for purposes of recommending services or rewarding one for recommending services. Subsection (C) extends that to people in the media.
- Rule 1-120 prohibits the attorney from assisting, soliciting, or inducing violations of the ethics rules.
- Rule 3-110 compels attorneys to perform legal services with competence. Included within that requirement is the duty to supervise the work of subordinate attorney and non-attorney employees or agents. (See, e.g., Waysman v. State Bar (1986) 41 Cal.3d 452).
And the State Bar Court has already indicated that it does not intend to lend its members more lenience when an advertising, solicitation, or communication issue arises in the context of social media or networking.
Thus, similar to the ABA Model Rules, it appears that California provides an obligation by the attorney to ensure that information about the attorney on the web is accurate. The position in the article is that, “if you have an online platform to market or advertise, and a third party makes a comment on your blog explaining how wonderful you are, you need to review it to be sure it’s accurate. You have an ethical obligation to affirmatively and periodically check your online resources to see what’s up there. If you don’t and bar regulators find it, you’re responsible for that content.” Thus, the attorney should take the same proactive steps advocated in the article,
- Police and investigate what is being said about the attorney online
- Make attempts to delete or remove items that are false
- Take reasonable measures to ensure that marketing companies and non-attorney marketing employees acting on the attorney’s behalf are aware of the attorney’s professional obligations and acting in congruence with those obligations