When does a California lawyer become responsible for a profile on a third-party online directory or rating website?
State Bar of California COPRAC Formal Opinion 2019-199: Third-Party Online Directory Profiles
Short answer: The opinion concludes that a lawyer who has not adopted or otherwise used a third-party directory profile is not responsible for its content, but once the lawyer adopts the profile (by clicking through the site's verification flow) or uses the profile to market the practice (for example, by linking from the lawyer's own site), the profile becomes a communication "by or on behalf of" the lawyer under Rules 7.1 and 7.2 and the lawyer must take reasonable steps to ensure that posted content, including third-party testimonials, is not false or misleading. The duty ends when the lawyer takes visible steps to abandon the profile.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Plain-English summary
The opinion analyzes a hypothetical where Attorney finds a third-party directory site segmented into Background Information (editable after "adoption"), self-posted information, and third-party testimonials. Attorney adopts the profile, corrects errors, posts truthful biographical and rating information, induces a sibling to post a fake favorable review, asks a real client for a testimonial that turns out to contain inaccurate facts, requests corrections from both the client and the site administrator (both refuse), posts a near-the-testimonial disclaimer, links to the profile from Attorney's own site, and ultimately abandons the profile after several months by posting a notice that Attorney is no longer monitoring it.
On responsibility, the opinion concludes that Rules 7.1 and 7.2 regulate all media used to promote the lawyer's services, that a "communication" includes any message made by or on behalf of a lawyer concerning availability for professional employment (Rule 7.1, Comment [1]), and that a profile becomes "by or on behalf" of the lawyer when the lawyer exercises control over it (adoption) or uses it in marketing (for example, by linking). A lawyer who is unaware of a profile, or who is aware but takes no action to use or benefit from it, is not responsible for its content; the opinion notes that such a lawyer must still correct any misconception held by a prospective client who refers to the profile when consulting the lawyer.
On the false sibling review, the opinion concludes that knowingly causing the posting of false information violates Rule 7.1(a) (false or misleading communication), Rule 8.4 (violating the rules through the acts of another), and Business and Professions Code section 6106. On truthful self-posted content, the opinion concludes that posting legal articles, nonlegal community service (board work, soccer coaching), and accolades from a "bona fide" rating organization are constitutionally protected commercial speech under Central Hudson Gas & Electric, Ibanez v. Florida, and Peel v. Attorney Registration, drawing on Comment [4] of Rule 7.1 and noting that bona fide organizations employ objective or quantifiable selection criteria and do not award ratings for a price.
On third-party testimonials, the opinion concludes that Rule 7.1 does not treat testimonials as presumptively false or misleading and does not require a disclaimer, but Comment [2] of Rule 7.1 bars communications that guarantee results, and Comment [4] cautions that even truthful testimonials may be misleading if they lead a reasonable person to form an unjustified expectation of the same results in similar matters. The opinion holds that when the third-party content contains false facts, the attorney's reasonable, good-faith efforts to correct it (asking the third party, asking the site administrator, posting a proximally close disclaimer) discharge the duty under Rules 7.1 and 7.2. When such efforts fail and no disclaimer can be placed close enough to the testimonial to be reliably seen, abandonment of the profile may be the only adequate remedy.
On abandonment, the opinion concludes that the duty to correct continues until the lawyer abandons the profile, which the lawyer effects by taking reasonable steps to alert the public (posting a notice, no longer linking, no longer referring clients to it). After abandonment, the lawyer is not responsible for new content; the opinion notes that abandonment does not cure an ethical violation already committed by knowingly posting false content or causing others to do so.
In practice
Under this opinion, conduct that is consistent with California's Rules of Professional Conduct as they stood at the time of the opinion regarding a lawyer's relationship to a third-party directory profile is conduct in which (i) the lawyer treats the profile as a communication "by or on behalf of" the lawyer once the lawyer adopts it or uses it to market the practice; (ii) the lawyer does not solicit, induce, or knowingly cause the posting of false reviews; (iii) the lawyer posts only truthful, nonmisleading self-content and references ratings only from organizations whose criteria are objective and not pay-for-rating; (iv) the lawyer takes reasonable, good-faith steps to correct or disclaim inaccurate third-party content (request from the poster, request from the administrator, proximate disclaimer); and (v) where correction is impossible and disclaimers cannot be placed prominently, the lawyer either tolerates the unobtrusive limit or abandons the profile by visible steps (a posted notice, removal of links, no further direction of clients to it).
Common questions
Q: Is a California lawyer responsible for a directory profile created by someone else?
A: Per the opinion, no, not until the lawyer takes some action that makes the profile a communication "by or on behalf of" the lawyer. The committee identifies two triggering actions: clicking through the site's adoption flow to verify the listing, or otherwise using the profile to market the practice (for example, linking from the lawyer's own website).
Q: Can the lawyer ask a client or peer to post a glowing review?
A: Per the opinion, the lawyer cannot induce a false review. Soliciting a fabricated review violates Rule 7.1(a), Rule 8.4, and Business and Professions Code section 6106. The committee distinguishes a truthful testimonial, which may be solicited but must not lead a reasonable person to form an unjustified expectation of similar results in similar matters per Comment [4] of Rule 7.1.
Q: A client posted a real testimonial with factually wrong facts and refuses to correct it. What must the lawyer do?
A: Per the opinion, the lawyer must take reasonable, good-faith steps to address the inaccuracy, including asking the client to revise or delete, asking the website administrator to correct or add a disclaimer, and, if both refuse, posting a disclaimer or general disavowal as proximally close to the testimonial as the site permits. The committee notes that confidentiality, privilege, and loyalty may limit the specificity of any response, citing LACBA Op. 525 (2012) and BASF Op. 2014-1.
Q: Can the lawyer cite a "Five-Star Lawyer" or similar rating?
A: Per the opinion, yes, if the rating is from a "bona fide" organization using objective or quantifiable criteria such as years of practice, publications, types of experience, and reputation, and not from one that sells the rating. The committee draws on Peel v. Attorney Registration & Disciplinary Commission (1990) and surveys other states' ethics opinions for the bona fide criteria.
Q: How does the lawyer get out from under responsibility for the profile?
A: Per the opinion, by abandoning it. The committee describes visible-abandonment steps, including posting a notice on the profile that the lawyer is no longer monitoring it, removing links from the lawyer's own site, and ceasing to direct clients to it. The committee notes abandonment is fact-specific, may occur at any time, and does not cure a previously committed violation.
Q: How often must the lawyer monitor an adopted profile for accuracy?
A: Per the opinion, the committee declines to set a fixed frequency but notes that "some periodic monitoring of the profile should be done" to ensure compliance with Rules 7.1 and 7.2.
Background and rules framework
The opinion interprets California Rules 7.1 (false or misleading communications, including Comments [1], [2], and [4]) and 7.2 (advertising) of the Rules of Professional Conduct as effective November 1, 2018, together with Rule 8.4 (misconduct through the acts of another) and Business and Professions Code section 6106 (acts involving moral turpitude). The committee notes that Business and Professions Code sections 6157 to 6158.3 govern paid attorney advertising and are not implicated in the hypothetical, which does not involve paid placements.
Citations and references
Rules of Professional Conduct:
- California Rules 7.1 (including Comments [1], [2], and [4]), 7.2, and 8.4
Statutes:
- California Business and Professions Code section 6106
- California Business and Professions Code sections 6157, 6157.2 through 6158.3 (referenced as not applicable to the unpaid-advertising facts)
Cases:
- Central Hudson Gas & Electric Corp. v. Public Service Commission of N.Y., 447 U.S. 557 (1980), truthful commercial speech protection
- Ibanez v. Florida Department of Business and Professional Regulation, 512 U.S. 136 (1994), protected attorney commercial speech
- Peel v. Attorney Registration & Disciplinary Commission of Illinois, 496 U.S. 91 (1990), bona fide ratings
- Hassell v. Bird, 5 Cal.5th 522 (Cal. 2018), CDA Section 230 and website-removal orders
- Dwyer v. Cappell, 762 F.3d 275 (3d Cir. 2014), First Amendment protection of truthful disclosures
- In re Opinion 39 of the Committee on Attorney Advertising, 197 N.J. 66 (N.J. 2008), ratings and advertising
Other opinions cited:
- Cal. State Bar Formal Op. 1982-67: listing firm members' qualifications in mailings
- Cal. State Bar Formal Op. 2001-155: advertising and Rule 7 framework
- LACBA Formal Op. 525 (2012): responding to online comments consistent with confidentiality
- Bar Association of San Francisco Op. 2014-1: responding to negative online reviews
- Alaska Bar Association Ethics Op. 2009-2: bona fide rating organizations
- State Bar of Arizona Op. 05-03 (July 2005): Best Lawyers as bona fide
- Delaware State Bar Op. 2008-2: Super Lawyers and Best Lawyers as bona fide
- State Bar of Iowa Ethics Op. 07-04: bona fide ratings
- North Carolina State Bar 2007 Formal Op. No. 14: bona fide ratings
- South Carolina Bar Advisory Op. 09-10: bona fide ratings
- State Bar of Virginia Legal Advertising Op. A-0114: bona fide ratings and pay-for-rating concerns
- In the Matter of Betty Tsamis (Illinois ARDC No. 6288664): client confidentiality in online responses
See also
- CA COPRAC Op. 2020-201: Departing Lawyer Duties and Rule 7.3 Solicitation
- CA COPRAC Op. 2024-209: Succession Planning
- NYSBA Op. 1294: Solicitation, Advertisement, and Lead Generators
Source
- Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
- Original PDF: https://www.calbar.ca.gov/sites/default/files/2025-11/CAL-2019-199-%5B12-0003%5D.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 2019-199
ISSUES: What are an attorney's ethical obligations regarding a profile of the
attorney posted on a professional directory website maintained by a
third-party?
DIGEST: An attorney is not responsible for the content of an attorney's profile on
a professional online directory and rating website created and
maintained by a third-party. However, if the attorney chooses to exercise
control over the profile's content by "adopting" the profile on the
directory itself or otherwise using the profile to market the attorney's
practice, the attorney becomes responsible for its content. When an
attorney uses the profile to market the attorney's practice, the profile
becomes a communication about the attorney's services by or on behalf
of the attorney, and consequently the attorney must comply with the
relevant advertising rules. This means the attorney cannot post or induce
another to post content that is false or misleading, and must undertake
reasonable efforts to correct any such content.
In addition, if third-party testimonials are posted on the profile, the
attorney should take reasonable steps to ensure that such testimonials
are not presented so as to lead a reasonable person to form an
unjustified expectation that the same results could be obtained for other
clients in similar matters. An appropriate disclaimer or qualifying
language often avoids creating unjustified expectations. An attorney who
abandons a profile on a third-party directory has no further obligation to
correct false or misleading content contained in the profile. An attorney
abandons the profile by taking reasonable steps to alert the public that
the attorney is no longer monitoring the profile such as posting a notice
of that fact on the profile as well as ceasing to use it in marketing the
attorney's practice.
AUTHORITIES
INTERPRETED: Rules 7.1 and 7.2 of the Rules of Professional Conduct of the State Bar of
California.
Business and Professions Code section 6106.
Unless otherwise indicated, all references to rules in this opinion will be to the Rules of Professional
Conduct of the State Bar of California in effect as of November 1, 2018.
STATEMENT OF FACTS
Attorney visits an online professional directory website. The site has a separate profile page for
Attorney, which includes "Background Information," with things like the name of Attorney's
current firm, email address, and other contact information; the undergraduate and law schools
from which Attorney graduated; Attorney's areas of practice; and a statement that Attorney
has no record of discipline. The profile also includes a numerical rating of Attorney, which the
site asserts is a measure of Attorney's professional competency, accomplishments, and
reputation.
The web host has set up the site in segments, giving Attorney different rights to edit or post
depending on the segment. As to the segment containing Attorney's Background Information,
Attorney may correct any errors once Attorney has "adopted" Attorney's profile listing.
Attorney can adopt Attorney's profile by clicking a button on the site, which verifies that
Attorney is the profiled attorney, and Attorney's profile thereafter indicates to anyone who
views it that Attorney has formally adopted it.
A second segment on the site allows Attorney to post any information Attorney wishes about
Attorney's qualifications, experience, activities, publications, and the like.
A third segment is reserved for content generated by third parties – things like comments,
testimonials, and reviews of Attorney's performance by clients, peers, or other interested third
parties. Under the site's policies, Attorney is not permitted to correct, edit, or delete
information in this segment; only the third-party authors of the material posted there may do
so.
Attorney adopts the profile and corrects some errors in the Background Information. Later
Attorney posts information in the second segment of the site, including a list of legal articles
Attorney has written and some accomplishments not directly related to Attorney's law practice,
including serving on the board of directors of a nonprofit charity, and coaching Attorney's
daughter's soccer team. Attorney also notes Attorney's award as a "Five-Star Lawyer" from
another national attorney evaluation website.
In the hopes of increasing Attorney's ranking on the site itself, Attorney also convinces
Attorney's sister, who has never used Attorney's services and has no real knowledge of the
quality of Attorney's professional abilities, to post a favorable review, extolling Attorney's
handling of a fictitious case.
Attorney also asks Client, for whom Attorney actually and successfully completed a
representation, to post a testimonial reviewing Attorney's performance. Client, acting alone,
posts a testimonial that inaccurately Attorney's background and experience, and incorrectly
states the amount obtained in settlement.
Attorney asks Client to post an edited testimonial with the incorrect factual information
corrected, but Client refuses. Attorney then asks the website to correct the inaccuracies.
The website administrator refuses; Attorney then asks the administrator to delete the
testimonial and the administrator again refuses. Finally, Attorney posts the following in the
segment of the site where Attorney is allowed to post material:
TO ANY READERS OF A CLIENT TESTIMONIAL OR OTHER THIRD-PARTY REVIEW OF
MY PERFORMANCE AS PART OF THIS PROFILE: PLEASE REALIZE THAT SUCH
TESTIMONIAL OR REVIEW DOES NOT CONSTITUTE A GUARANTEE, WARRANTY,
OR PREDICTION REGARDING THE OUTCOME OF YOUR LEGAL MATTER, AS THE
FACTS AND CIRCUMSTANCES OF EACH CASE DIFFER.
PLEASE ALSO REALIZE THAT THE POLICIES OF THE WEBSITE DO NOT PERMIT ME
TO EDIT ANY CLIENT OR OTHER THIRD-PARTY'S REVIEWS OR TESTIMONIALS ON
MY PROFILE, AND THUS I CANNOT ATTEST TO THE FACTUAL ACCURACY OF THE
STATEMENTS MADE IN ANY SUCH REVIEWS OR TESTIMONIALS.
Attorney thereafter posts a link to the online directory profile on Attorney's own professional
website, and encourages anyone interested in Attorney's qualifications to view Attorney's
profile on the third-party site.
After several months, Attorney abandons the profile. Attorney no longer posts information to
it, removes the link from Attorney's professional website, no longer urges clients or others to
view Attorney's profile on the third-party site, and posts a note in that segment of the website
where Attorney is allowed to post that Attorney is no longer monitoring or using the profile.
DISCUSSION
- When is Attorney's Conduct Related to Online Directory Sites Subject to Attorney
Advertising Regulations and Requirements?
All media an attorney uses to promote the attorney's professional legal services is regulated by
rules 7.1 and 7.2 of the California Rules of Professional Conduct. See also California State Bar
Formal Opn. No. 2001-155. The rules prohibit an attorney from making a communication
about the attorney or the attorney's services that is false or misleading. Rule 7.1, Comment [4]
further states: "[a] communication that truthfully reports a lawyer's achievements on behalf of
clients or former clients, or a testimonial about or endorsement of the lawyer may be
misleading if presented so as to lead a reasonable person to form an unjustified expectation
that the same results could be obtained for clients in similar matters without reference to the
specific factual and legal circumstances of each client's case."
A "communication" includes "any message or offer made by or on behalf of a lawyer
concerning the availability for professional employment of a lawyer or a lawyer's law firm
directed to any person." Rule 7.1, Comment [1]. Professional directory websites are available to
members of the general public and, if used to market the attorney's services, concern the
availability for professional employment of the lawyer or firm. A profile becomes "by or on
behalf" of an attorney when the attorney exercises control over it by adopting it as directed by
the site itself in order to market the attorney's practice. The profile would also become "by or
on behalf" of the attorney if the attorney used the profile to market the attorney's practice
even without "adopting" the profile as directed by the site itself. Hence, adoption of the profile,
or any other use of the profile in an attorney's marketing of her services, obligates the attorney
to ensure the information the attorney posts on the profile is truthful and not misleading to the
public as required by rules 7.1 and 7.2, and to take reasonable steps to ensure that the factual
content on the profile page posted by others is similarly truthful and not misleading.
On the other hand, an attorney who is not aware of a profile on a professional directory
website is not responsible for any information contained thereon, inaccurate or not, because
the information is not made "by or on behalf" of the attorney. Similarly, an attorney who is
aware of the profile but takes no action with regard to the profile is also not responsible for its
content. However, that attorney must not take any action to use or benefit from the profile, for
example, by linking from the attorney's website to the profile. Moreover, the attorney must
correct any misconceptions of a prospective client who approaches the attorney after
consulting the website profile. For example, if the profile inaccurately states that the attorney
was a Rhodes scholar and a prospective client were to refer to the attorney having been a
Rhodes scholar, the attorney must correct the client's misconception. Otherwise, the attorney
will benefit from the inaccurate statement of fact.
In our hypothetical, when Attorney adopted Attorney's profile and when Attorney linked the
profile page to Attorney's own professional website, the profile became a communication by or
on behalf of Attorney within the meaning of rules 7.1 and 7.2 of the Rules of Professional
Conduct. Consequently, Attorney was thereafter subject to the ethical obligations flowing from
those rules regarding Attorney's profile, including ensuring, to the extent reasonably possible,
that only accurate, nonmisleading factual information appears on the profile. Such duties last
until Attorney abandons use of the profile.
- Effect of Posting False Information Solicited by Attorney
Knowingly posting false or misleading information on a profile, or causing others to do so,
violates the provisions of rule 7.1(a), which prohibits a false or misleading communication
about the lawyer or the lawyer's services. A communication is false or misleading if, for
example, it contains a material misrepresentation of fact or law. Consequently, the posting of
the false review of Attorney's services by Attorney's sister, who had never used those services,
at Attorney's request, violates rule 7.1(a). Attorney's conduct in having the false
communication posted may also violate rule 8.4, which prohibits an attorney from violating the
rules of professional conduct through the acts of another, engaging in dishonesty, fraud, deceit
or reckless or intentional misrepresentation; and may also violate Business and Professions
Code section 6106, prohibiting "act[s] involving moral turpitude, dishonesty or corruption."
- Effect of Posting Truthful Information and Ratings Information from "Bona Fide"
Organizations and the Website Itself
A state may not constitutionally prohibit, or impose discipline for, an attorney's communication
of truthful information in an advertisement. (Cent. Hudson Gas & Elec. Corp. v. Pub. Serv.
Comm'n of N.Y.(1980) 447 U.S. 557, 566 [100 S.Ct. 2343] [holding that truthful commercial
speech is entitled to constitutional protection]). As such, the posting of the legal articles
Attorney had written is entirely proper.
Attorney's posting of Attorney's service on the board of directors of a nonprofit charity and
Attorney's soccer coaching is also constitutionally protected. (Ibanez v. Florida Dep't of Business
and Prof. Regulation (1994) 512 U.S. 136 [114 S.Ct. 2084] [holding an attorney's truthful
statements that attorney was a CPA and a Certified Financial Planner in attorney's advertising
was constitutionally protected commercial speech without an evaluation of whether such
information was of value to prospective clients]). Therefore, the posting of Attorney's nonlegal
community and business service is proper, and may also be relevant to a legal consumer who
wants to retain an attorney who is active in the community or has particular experience outside
of the practice of law.
With regard to Attorney's "Five-Star" rating from a national attorney evaluation organization,
the Supreme Court has ruled that an attorney's rating by a bona fide organization with clear
evaluation standards is also constitutionally protected commercial speech. (See, Peel v.
Attorney Registration and Disciplinary Comm'n of Illinois (1990) 496 U.S. 91 [110 S.Ct. 2281]
("Peel") [holding an attorney's statement on his stationery that he was a "Certified Civil Trial
Specialist" according to the National Board of Trial Advocacy was constitutionally protected
because it was not misleading and came from a "bona fide" organization]).
While Peel establishes that attorneys may reference accolades or ratings from "bona fide"
organizations in their advertisements, it provided only minimal guidance as to what makes an
organization "bona fide." That is, while it made a fact-specific argument in Peel itself that an
award from the National Board of Trial Advocacy was "bona fide" because the group's
standards for bestowing such awards were especially rigorous, the only general direction the
Court provided as to what makes an organization "bona fide" was dicta. Specifically, the Court
cautioned that, "if the certification had been issued by an organization that had made no
inquiry into petitioner's fitness, or by one that issued certificates indiscriminately for a price,
the statement, even if true, could be misleading." (Id. at 102.)
There is similarly little guidance on this issue by a California court or bar association. However,
the ethics committees of several other states have addressed the question of what a "bona
fide" organization is for purposes of legal ratings and awards, and the consensus is that if the
organization employs a selection methodology based upon objective or other quantifiable
factors relating to an attorney's qualifications, such as years of practice, publications, types of
experience, reputation within the legal community, and client and other third-party
testimonials, the organization may be considered "bona fide" and the rating or appellation
awarded by such an organization can be used and cited by the attorney. Some of these
sources also emphasized Peel's dicta that an award from an organization which charged or
accepted a fee for a rating is likely not one from a "bona fide" organization since there is a risk
of a legal consumer being misled into believing that such an award was a legitimate reflection
of the attorney's competence and not merely available for purchase by any attorney with
sufficient means.
It is thus appropriate for Attorney to post on Attorney's profile Attorney's rating as a "Five-Star
Lawyer" from another national attorney evaluation website if it is based upon objective factors
relating to Attorney's qualifications and professional reputation, and not merely purchased by
Attorney.
A separate question is whether the numerical rating provided by the third-party's website itself
is an award from a "bona fide" organization and thus within the constitutional protections of
Peel. So long as the site does not require or accept payment by an attorney for providing or
increasing the attorney's rating, and the criteria for calculating the rating on the site are in line
with what other "bona fide" groups use in deciding to bestow an award to an attorney such as
years in practice, awards, legal publications, reputation, etc., it is likely an attorney website's
internal rating does not implicate any ethical concerns and an attorney's use of it as part of her
profile would be constitutionally protected.
- Testimonials and Reviews by Third Parties
Online professional directory websites often provide opportunities for clients, peers, and other
interested third parties to post testimonials, endorsements, and reviews of individual attorneys
on the attorney's profile. Rule 7.1 does not hold testimonials or endorsements to be
presumptively false or misleading, and the rule does not require the use of a disclaimer.
However, Comment [2] of rule 7.1 states that a communication containing an express
guarantee or warranty "of the result of a particular representation" is a false or misleading
communication under the rule. In addition, Comment [4] of rule 7.1 states that a
communication that truthfully reports a lawyer's achievements on behalf of clients or former
clients, or a testimonial about or endorsement of the lawyer, may be misleading if presented so
as to lead a reasonable person to form an unjustified expectation that the same results could
be obtained for other clients in similar matters without reference to the specific factual and
legal circumstances of each client's case. Comment [4] notes that an appropriate disclaimer or
qualifying language "often avoids creating unjustified expectations."
The factually inaccurate testimonial posted by Client presents a number of potential ethical
problems for Attorney. These problems stem from the fact that rules 7.1 and 7.2 implicitly
presume the attorney is generally in charge of both the production and distribution of the
communication, and has editorial control over it. However, when the content comes directly
from clients and other third parties, and these testimonials and reviews are posted on an
independently-run site, final editorial content of what is said has passed to the clients and third
parties who author the statements, and to the website administrator who controls their edits. If
neither Client nor the administrator will allow the correction of false or misleading content, or
agree to append an appropriate disclaimer, Attorney is left in a potential ethical quandary –
being required to take certain measures with regard to a communication about Attorney's
services that is on Attorney's behalf, but being unable to implement them.
Under these facts, the Committee believes that common sense dictates that an attorney's
reasonable, good faith attempt to meet the requirements of rules 7.1 and 7.2 should be
sufficient to satisfy the attorney's ethical obligations. Some steps an attorney should consider
taking are:
1. Requesting that the client, or other third-party author of the content, either
revise the posting to make it accurate and complete so as to be in compliance
with the attorney's ethical obligations, or delete the posting altogether.
2. Requesting that the website administrator correct or remove any inaccurate
information, add an appropriate disclaimer, or delete the posting altogether.
Here, Attorney asked Client to post the testimonial concerning Attorney's performance on a
third-party website Attorney has adopted and is using to market his practice. Under Comment
[1] to rule 7.1, the testimonial is a communication made on behalf of Attorney and therefore
the prohibition against false or misleading communications applies. The testimonial contains
false information regarding Attorney's background and experience, and the amount obtained
in the settlement. If neither Client nor the website administrator agree to any such changes,
Attorney must post something on the site in order to satisfy Attorney's ethical obligation under
rule 7.1. Such posting must include an appropriate disclaimer or qualifying language as to the
inaccurate information, or a statement that the editorial policies of the site are such that the
attorney cannot vouch for the factual accuracy of third-party content, either generally or as
regards a particular post. Of course, other ethical concerns such as privilege, confidentiality,
and loyalty may limit the specificity of what can be said by attorney; however, a general
statement that attorney cannot correct any inaccuracy in a third-party's post on the profile due
to the editorial restrictions imposed by the site's administrator, or a general disclaimer or other
qualifying language regarding the inaccurate content, should suffice in most situations.
Rule 7.1 states nothing about the proximity of a disclaimer or other qualifying language to a
testimonial or other third-party post that such statements are designed to correct. However,
with electronic webpages administered by others, it is entirely possible that the disclaimer or
qualifying language in the segment of the website where the attorney can post information
might be several "screens" away from the testimonial or review itself, and thus, an interested
reader would never see it or even know to look for it. In this situation, the Committee believes
that the attorney can only be ethically required to do what the attorney can reasonably do, and
that the posting of a disclaimer or other qualifying language as close as reasonably possible to
the testimonial on the profile should be sufficient to meet the attorney's ethical obligations.
The alternative would be to prohibit the attorney from using or adopting the third-party profile
at all once the attorney discovered that any inaccuracies in third-party postings could not be
corrected and any required disclaimer or qualifying language could not be placed in a
prominent enough location to be easily or reliably noticed. This could lead to attorneys
choosing not to take advantage of such websites in the first place so as to avoid an ethical
gamble. As we believe attorney profiles in professional online directory and rating websites
maintained by third parties provide information that some legal consumers value in selecting
counsel, we believe allowing an attorney to continue using the profile with any disclaimer or
qualifying language as close as reasonably permitted to the testimonial or review is preferable,
and consistent with the policies behind rules 7.1 and 7.2.
Finally, as we discuss in greater detail below, another option an attorney should at least
consider when faced with inaccurate factual information that cannot be corrected on a ratings
website posted by others is to abandon the profile altogether.
In our hypothetical, Attorney acted ethically once Attorney discovered Client's posting.
Attorney asked Client to edit the post; when Client refused, Attorney asked the website
administrator to make ethically required corrections; and, when the administrator refused,
Attorney posted a disclaimer and general disavowal in the section of the website that was
available for Attorney to do so, which was as proximate as reasonably possible to the
testimonial itself. We do not believe that Attorney was required to abandon the profile under
these facts because Attorney was able to post a general disclaimer and disavowal in the profile,
which ameliorates any misleading effect of Client's inaccurate testimonial. However, when an
attorney is prohibited from taking any corrective measures, for example because the website
administrator will not allow attorney to post any disclaimer or disavowal, abandonment may be
the only reasonable course.
- Abandonment of Third-party Profile
The obligation to take reasonable steps to correct known inaccurate, misleading, or incomplete
information contained on an attorney's profile continues until the attorney abandons the
profile. An attorney abandons the profile by taking reasonable steps to alert the public that the
attorney is no longer monitoring the profile such as posting a notice of that fact on the profile
as well as ceasing to use it in marketing attorney's practice.
Whether an attorney has abandoned a profile posted on an online professional directory site is
a case-by-case, fact-based inquiry. Although the Committee cannot define all the ways in which
an attorney may demonstrate abandonment of the profile, some tangible evidence of
abandonment includes no longer referring clients to the profile and no longer making reference
to the profile on attorney's own site. Abandonment may take place at any time, from
immediately following adoption of the profile, to years later if the attorney continually uses the
profile to market attorney' practice. Once an attorney abandons the profile, the attorney is not
thereafter responsible for its content. Here, Attorney's posting a notice that Attorney is no
longer using or monitoring it, and Attorney's actions in no longer referring clients to it or
referring to it on Attorney's own site, should be sufficient to demonstrate Attorney's
abandonment of the profile.
CONCLUSION
An attorney is not responsible for a profile on an online professional directory website which
the attorney has not adopted or otherwise used in order to market the attorney's practice.
Adopting a profile, or otherwise using it to market an attorney's practice, makes the profile a
communication by or on behalf of the attorney, about the attorney's services, and obligates the
attorney to take reasonable steps to ensure the information on the profile is accurate and not
misleading.
Attorneys may not post false or misleading material on a profile under rule 7.1, nor through
their conduct have others do so. Attorneys may, however, post truthful information in their
communications, regardless of whether it is directly related to the practice of law. Attorneys
may also report their ratings or accolades from a bona fide attorney evaluation website
(including from the website hosting the profile) which uses verifiable criteria based upon the
attorney's experience, accomplishments, professional reputation, and the like. Attorneys
should avoid using ratings issued for a price.
An attorney must take reasonable steps to correct any inaccuracies posted by a third-party in a
profile adopted or used by the attorney. These steps can include asking the party who posted
the information, or the web site administrator, to edit the posting so that it only reports
accurate, nonmisleading content, so long as client confidentiality and other ethical
requirements permit. If such editing is not possible, an attorney should disavow inaccurate
information in the third-party postings, either generally or specifically.
When a testimonial on a profile adopted or used by an attorney appears without a disclaimer,
and the absence of a disclaimer could lead a reasonable person to form an unjustified
expectation of the same results in similar matters, the attorney should take reasonable steps to
correct the situation. Again these steps include a request to the person who posted the
testimonial or the website administrator to provide a proximally close disclaimer. If such
requests are denied, a general disclaimer regarding all testimonials on the profile or
abandoning the profile altogether are other actions which should be considered to fulfill an
attorney's ethical obligations.
An attorney is not responsible for profile content on an online professional directory posted
after the attorney has abandoned the profile by no longer using the profile in marketing the
attorney's practice. An attorney who has decided to abandon a profile should take reasonable
steps demonstrating such decision, such as posting that the attorney is no longer monitoring or
using the profile, and not directing clients to it.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of
the State Bar of California. It is advisory only. It is not binding on the courts, the State Bar of
California, its Board of Trustees, any persons or tribunals charged with regulatory
responsibilities, or any licensee of the State Bar.