Any attorney "claiming" or "endorsing" a web-based profile—placing or disseminating communications on or through that website—must ensure that all information appearing as part of that profile complies with the rules of professional conduct, according to a recent opinion of the South Carolina Bar's Ethics Advisory Committee.
The committee's Ethics Advisory Opinion 09-10 is the latest step in the expansion of traditional ethics rules into the world of increasingly popular web-based ratings services, which provide peer endorsements, client ratings, and/or other ratings.
While the committee seeks to ensure the accuracy of information provided to the public, some practitioners question how much control an attorney has over these websites and whether the committee's opinion actually chills the dissemination of truthful information.
The opinion originated with the inquiry of a member of the South Carolina Bar about whether an attorney may "claim" a website profile. Third-party websites, such as LinkedIn and Avvo, sometimes generate profiles without input from the profiled attorneys. Attorneys can request access to and update those listings (beyond making corrections to directory information), thereby claiming the profile.
Ethics Advisory Opinion 09-10 "effectively states that by 'claiming' a profile a lawyer becomes responsible for the profile, including subsequent amendments," says Gregory R. Hanthorn, Atlanta, cochair of the Professionalism subcommittee of the ABA Section of Litigation's Ethics and Professionalism Committee.
South Carolina attorneys who claim a profile must make sure that a claimed profile complies with that state’s Rules of Professional Conduct, including the prohibitions on disseminating deceptive information, improper client testimonials, or inappropriate client endorsements.
The opinion provides that if any part of the listing cannot be brought into compliance with the rules, the lawyer should remove the entire listing and discontinue participation in the service.
This reasoning may be based on the "incorrect assumption that the lawyer 'claiming' the profile will be provided unfettered access to the material posted on the site," opines Hanthorn.
"Some social networking media do not permit control over and/or deletion of the content of a web listing," explains Teresa D. Tambolas, Chicago, cochair of the Attorney Advertising subcommittee of the Section's Ethics and Professionalism Committee. She expresses concern that the opinion "goes too far."
"At a minimum, the opinion provides a substantial prod for an attorney to discover, before deciding to claim a web 'profile,' what control, if any, he or she may have regarding present or future content posted on the site or associated with the profile," says Hanthorn.
Rothman and Florida
The ability for a lawyer to control a web-based listing is an issue currently facing a Florida federal court in Rothman v. The Florida Bar, [PDF] No. 09CV80503. There, an attorney allegedly submitted "client rating request forms" to a website that posted feedback from five of the attorney's former clients.
Ethics counsel for the Florida Bar advised the attorney that his use of the site violated Florida's prohibition on attorneys making or permitting a communication about that lawyer or lawyer's services if it contains any reference to past successes or results obtained.
After unsuccessfully challenging the decision within the Florida Bar, the attorney allegedly asked the website to remove the client reviews—a request that the website denied.
The attorney then filed suit against the Florida Bar and Chief Disciplinary Counsel for the region in which he practices, challenging the constitutionality of Florida's Rules of Professional Conduct on the grounds that they affect his speech. That case is in mediation.
Effect on Practitioners
"Both the South Carolina and Florida approaches impose upon attorneys a need to police web profiles of the attorneys to avoid ethical missteps," says Hanthorn.
"Both approaches do this by viewing client statements about the attorneys—although most are immediately solicited by the website—as surrogates for speech of the attorneys, and then applying the advertising restrictions of the applicable rules of professional conduct to that speech by the non-attorneys," observes Hanthorn.
"The positions of the Florida and South Carolina bar associations may also have the unintended consequence of making it harder for honest and unfiltered comments regarding an attorney's skills to become readily available to legal consumers," he says.
Tambolas believes that the opinion will make it "less likely that lawyers will claim profiles knowing they must actively police the listing with the potential for deletion, or worse, the listing [will not] allow for the lawyer to modify the content in compliance with applicable rules."
Even so, refusing to claim a web-based profile poses risks. The opinion "places an attorney in a 'damned if you do, damned if you don't' situation because he or she must decide whether to leave a potentially inaccurate and unfavorable comment on a listing or to respond to the negative comment. This may trigger a responsibility for all content and charge the attorney with control that he does not in fact have," opines Mark J. Fucile, Portland, OR, member of the Section's Ethics and Professionalism Committee and of the ABA Center for Professional Responsibility.
"Bar advertising restrictions can pose a trap for the unwary attorney who actively participates in social or business networking relationships and later seeks to be admitted pro hac vice in South Carolina or Florida, decides to open a practice there, or is transferred there by a corporate employer," warns Hanthorn.