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March 2011
Lawyers’ Professional Liability (Malpractice) Insurance Responsibility for Websites Lawyers Claim or Endorse—Soliciting Endorsements Including for Websites
Article courtesy of Hinshaw & Culbertson LLP © May 2010 Hinshaw & Culbertson LLP – Used with permission
Risk Management Issues
If a third party creates a Web site, when does a lawyer become responsible under the ethics rules for the content of that site? If a third party posts a comment about a lawyer on a Web site that a lawyer has adopted or endorsed, is the lawyer responsible for the contents of such a posting?
The Opinion
South Carolina Ethics Advisory Opinion 09-10
Advisory Opinion 09-10 examines legal issues relating to a Web site company (“Company X”) that unilaterally creates Web sites containing lawyer profiles. These Web sites include a rating for each listed lawyer. Individual lawyers can “claim” their profile and update and supplement the information Company X has posted.
Lawyers can also write peer comments on other lawyers’ profiles. Such peer comments affect a lawyer’s rating. A lawyer may choose to retain or remove peer comments from his or her public profile. In addition, anyone may submit a client comment and rating for a listed lawyer. Client ratings do not affect a lawyer’s rating, but client comments are “prominently posted on the attorney’s listing.”
The Advisory Opinion posits two questions:
● May a South Carolina lawyer claim his or her Company X Web site listing, including peer endorsements, client ratings and Company X ratings?
● May a South Carolina lawyer invite peers, clients or former clients to post comments and/or rate the lawyer?
The Opinion offers the following responses:
● Yes, a lawyer may claim the Web site listing, but all information contained therein (including peer endorsements, client ratings and Company X ratings) is subject to the rules governing communication and advertising once the lawyer does so.
● A lawyer may invite peers to rate the attorney and may invite and allow the posting of peer and client comments, but all such comments are governed by the Rules of Professional Conduct, and the lawyer is responsible for their content.
“Claiming” Web Sites
In answering the first question about claiming third -party Web sites, Advisory Opinion 09-10 begins with the premise that a lawyer is “not responsible for statements about the lawyer or the lawyer’s practice that are not placed or disseminated by the lawyer.”
Thus, statements about the lawyer made by Company X are “governed by the Rules of Professional Conduct” only when “placed or disseminated by the lawyer or by someone on the lawyer’s behalf.”
The Opinion distinguishes between communications about the lawyer’s services that the attorney directly or indirectly makes, places, disseminates or endorses—for which the lawyer has responsibility under Rule 7.1—and those that the lawyer does not make, place, disseminate or endorse – for which the lawyer does not have responsibility. Having made this distinction, the Opinion relies on prior South Carolina ethics opinions (addressing client sites that promote a lawyer’s services and internet-based lawyer-finder services) and concludes that a lawyer “‘place[s] or disseminate[s]’ all communications made at or through that [Web site] after the time” he or she claims the Web site. Id. “By claiming a Web site listing, a lawyer takes responsibility for its content and is then ethically required to conform the listing to all applicable rules.” Id.
According to the Advisory Opinion, however, claiming a Web site requires greater interaction than simply correcting or updating directory information on the site.
The Opinion also warns that, once a lawyer claims a site, he or she should monitor the site to ensure that its contents comply with the Rules of Professional Conduct. “If any part of the listing cannot be conformed to the Rules (e.g., if an improper comment cannot be removed), the lawyer should remove his or her entire listing and discontinue participation in the service.” Id.
Soliciting Peer and Client Comments
Advisory Opinion 09-10 next analyzes whether a lawyer may solicit positive comments from clients and lawyers for a Web site profile. The Opinion relies on the long-standing practice of lawyers rating lawyers (e.g., for Martindale-Hubbell) and case law dealing with constitutional protections for referencing such ratings to conclude that a lawyer may help build a rating and may reference that rating in other settings. Id.
Advisory Opinion 09-10 then considers a lawyer’s solicitation of client comments. Here, the Opinion deals with a somewhat unique aspect of South Carolina ethics law that distinguishes between a testimonial, or a statement “by a client or former client about an experience with the lawyer,” and an endorsement which is a, “more general recommendation or statement of approval of the lawyer.” Noting that South Carolina’s version of Rule 7.1 generally prohibits the use of client testimonials and also general endorsements, the Opinion advises, “A lawyer should not solicit, nor allow publication of, testimonials. A lawyer should also not solicit, nor allow publication of, endorsements unless they are presented in a way that is not misleading nor likely to create unjustified expectations.” Having given this warning, the Opinion adds that an appropriate disclaimer or qualifying language “may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead a prospective client.” Id. (emphasis in original).
Finally, Advisory Opinion 09-10 warns that a lawyer may violate not only the advertising rules but also Rule 8.4(a) through the acts of another, if a communication posted or adopted by the lawyer is “false, deceptive or is misleading.”
Risk Management Solutions
Lawyers and law firms should expect to be held responsible for all information on any Web site when the lawyer or firm provides information to or solicits information for the site. Firms should therefore develop and enforce policies requiring lawyers to review sites they adopt or endorse for compliance with the ethics rules, and regularly monitor such sites to ensure that the content complies with the ethics rules.
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Disclaimer: Perspectives is published as a service to lawyers. While the information contained herein is believed to be reliable, readers are advised to consult their own legal and insurance counsel for assistance in applying it to their unique situations.
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