If a website like Avvo or Martindale builds a profile and rating for a South Carolina lawyer without the lawyer's involvement, may the lawyer claim the listing and invite peers and clients to post ratings and comments?

Plain-English summary

Company X runs a free website with profiles of attorneys nationwide, building entries from information obtained through FOIA requests to courts and bar associations without lawyers signing up. It generates an internal rating for each listed lawyer, lets lawyers "claim" and update their profiles, and features peer endorsements (which raise a lawyer's rating) and client ratings (which anyone may submit and which are prominently posted). The committee was asked whether a South Carolina lawyer may claim such a listing, including the peer endorsements, client ratings, and the company's rating, and whether the lawyer may invite peers, clients, or former clients to post comments or ratings.

The committee answered that a lawyer may claim the listing, but once claimed, all information in it (peer endorsements, client ratings, and the company's ratings) becomes subject to the rules governing communication and advertising. A lawyer may invite peers to rate the lawyer and may invite and allow peer and client comments, but all such comments are governed by the Rules of Professional Conduct, and the lawyer is responsible for their content.

Drawing on Comment 1 to Rule 7.1 and its prior Opinions 99-09 and 00-10, the committee explained that lawyers are responsible for communications they place or disseminate, or ask to be placed for them, but not for statements made by the website that the lawyer did not place. To "claim" a listing is to "place or disseminate" the communications at that listing going forward, so the lawyer must conform the listing to the rules. The same applies to Martindale-Hubbell, SuperLawyers, LinkedIn, Avvo, and similar sites regardless of the terminology used to claim a listing; by requesting access to and updating a listing beyond mere directory corrections, the lawyer assumes responsibility for it. Such listings are both communications and advertisements governed by Rules 7.1 and 7.2; mere participation is not unethical, but claimed content must satisfy Rule 7.2(b)-(i) and not be false, misleading, deceptive, or unfair. The committee reasoned that an online listing containing only directory information need not be filed under Rule 7.2(b) (Comment 5 exempts basic directory listings), but if updated to include more than directory information, a copy must be filed with the Commission.

On ratings and comments, the committee said soliciting peer ratings does not violate the rules, citing the century-old Martindale-Hubbell system and federal decisions (Mason v. Florida Bar; In re Opinion 39, N.J.) treating verifiable independent ratings as protected, so including a non-misleading, independently verifiable rating appears permissible. Client comments, however, may violate Rule 7.1 depending on content: Rule 7.1(d) prohibits testimonials, and the committee distinguished a "testimonial" (a client's statement about an experience with the lawyer, which a lawyer should not solicit or allow) from an "endorsement" (a more general recommendation, which a lawyer should not solicit or allow unless presented so as not to mislead or create unjustified expectations, possibly with a disclaimer). It cautioned that under Rule 8.4(a) a lawyer may not violate the rules through another's acts, that comparative or results-based client comments can be misleading (Rule 7.1(c) bars comparative language, 7.1(b) bars unjustified-expectation statements, 7.2(f) bars self-laudatory language), and that a lawyer should monitor a claimed listing and, if improper content cannot be removed, take down the entire listing and discontinue participation. The opinion did not consider constitutional-law issues regarding lawyer advertising.

In practice

The opinion holds that, under the South Carolina advertising rules as they stood at the time, a lawyer who claims a third-party rating-website listing "places or disseminates" its content and becomes responsible for conforming it to Rules 7.1 and 7.2, while a listing the lawyer never claims is not governed by the rules. A claimed listing limited to directory information need not be filed under Rule 7.2(b), but anything beyond directory information must be filed with the Commission. The committee concluded that soliciting verifiable, non-misleading peer ratings is permissible, that a lawyer should not solicit or allow client testimonials and should allow endorsements only if not misleading, and that a lawyer must monitor a claimed listing under Rule 8.4(a) and remove it entirely if improper content cannot be corrected.

Common questions

Q: Can a South Carolina lawyer claim an Avvo or Martindale-type listing?

A: Yes, but the committee concluded that by claiming it the lawyer takes responsibility for all of its content, which is then governed by the communication and advertising rules.

Q: Is the lawyer responsible for an unclaimed listing the website created?

A: No. The committee said a lawyer is not responsible for statements the lawyer did not place or disseminate; statements the website makes on its own are not governed by the rules unless the lawyer adopts them by claiming the listing.

Q: May a lawyer invite peer ratings and client comments?

A: The committee said a lawyer may solicit verifiable, non-misleading peer ratings, but should not solicit or allow client testimonials, and should allow endorsements only if presented so as not to mislead or create unjustified expectations.

Q: What must the lawyer do if a claimed listing contains improper content?

A: The committee said the lawyer should monitor the listing and conform it to the rules, and if any improper content cannot be removed, should take down the entire listing and discontinue participation in the service.

Q: Does an online directory listing have to be filed with the Commission?

A: Only if it goes beyond directory information. The committee concluded a listing limited to directory information need not be filed under Rule 7.2(b), but updating it to include more than directory information triggers the filing requirement.

Background and rules framework

The opinion interprets South Carolina Rule 7.1 (communications about a lawyer's services, including 7.1(b) on unjustified expectations, 7.1(c) on comparative language, and 7.1(d) on testimonials and endorsements), Rule 7.2 (advertising, including the filing requirement of 7.2(b) and the bar on self-laudatory language in 7.2(f)), and Rule 8.4(a) (violating the rules through the acts of another). These correspond to the like-numbered Model Rules as South Carolina had adopted them at the time; South Carolina's advertising rules have since been amended, so the specific provisions cited should be checked against current rules.

Citations and references

Rules of Professional Conduct:

• MR 7.1 / SC Rule 7.1, 7.1(b), 7.1(c), 7.1(d) (communications about services; testimonials and endorsements; comparative and unjustified-expectation statements)
• MR 7.2 / SC Rule 7.2, 7.2(b), 7.2(f) (advertising; filing requirement; self-laudatory language)
• MR 8.4 / SC Rule 8.4(a) (violating the rules through the acts of another)

Cases:

• Mason v. Florida Bar, 208 F.3d 952 (11th Cir. 2000), advertising verifiable independent ratings
• In re Opinion 39 of the Committee on Attorney Advertising, 961 A.2d 722 (N.J. 2008), vacating a ban on advertising "SuperLawyers" and "Best Lawyers" designations as factually verifiable

Other opinions cited:

• S.C. Bar Ethics Advisory Opinions 99-09 and 00-10 (a lawyer's responsibility for advertising placed by others and through internet attorney-locator services)
• Virginia State Bar Lawyer Advertising Opinion A-0113 (2000) (comparative client comments as misleading)

See also

• SC Bar Ethics Op. 07-08: Joining a Referral Source's Ad
• SC Bar Ethics Op. 05-10: Advertising a Title Business
• SC Bar Ethics Op. 06-13: Referrals From a Trade Group

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-09-10/
• Original PDF: https://www.scbar.org/media/gdlmujkj/09-10.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 09-10

Applicable Rules: 7.1, 7.2, 8.4(a)

Facts:

Company X offers a free website that provides information about attorneys nationwide. Lawyers need not actively sign up to have their names listed on the website. Instead, Company X uses information obtained through requests to state courts and bar associations under the Freedom of Information Act and creates web site entries for the lawyers whose information is retrieved through these FOIA requests.

Company X collects information about attorneys and generates an internal rating for each listed attorney. Individual attorneys can “claim” their profiles and update their information. Company X has already created listings and ratings for a number of South Carolina attorneys regardless of each lawyer’s knowledge of the listings.

The website also features peer endorsements. Attorneys are able to write comments about one another that are then displayed on the attorney's profile. It is possible to remove these endorsements from public view. Peer endorsements help raise an individual's rating.

The website also feathures "client ratings." Anyone can submit a client rating about any lawyer, and the lawyer may invite current and former clients to submit ratings. Client ratings do not impact an attorney's internal rating by Company X, but the client comments are prominently posted on the attorney's listing. While Company X monitors and inspects the client ratings and peer reviews, attorneys are unable to control who endorses or rates them.

Questions:

1) May a South Carolina lawyer claim his or her Company X website listing, including peer endorsements, client ratings, and Company X ratings?

2) May a South Carolina lawyer invite peers, clients, or former clients to post comments and/or rate the lawyer ?

Summary

1) Yes, a lawyer may claim the website listing, but all information contained therein (including peer endorsements, client ratings, and Company X ratings) are subject to the rules governing communication and advertising once the lawyer claims the listing.

2) A lawyer may invite peers to rate the lawyer 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.

Opinion

Lawyers are responsible for all communications they place or disseminate, or ask to be placed or disseminated for them, regarding their law practice, and all such communications are governed by Rule 7.1 of the Rules of Professional Conduct. See Cmt. 1 (“This Rule governs all communications about a lawyer’s services…. Whatever means are used to make known a lawyer’s services, statements about them must be truthful.”)(emphasis added). However, a lawyer is not responsible for statements about the lawyer or the lawyer’s practice that are not placed or disseminated by the lawyer. Statements made by Company X on its website about a lawyer are not governed by the Rules of Professional Conduct unless placed or disseminated by the lawyer or by someone on the lawyer’s behalf.

In the Committee’s view, to “claim” one’s website listing is to “place or disseminate” all communications made at or through that listing after the time the listing is claimed. For example, in Advisory Opinion 99-09, this Committee addressed a client’s website that advertised the lawyer’s services but was created without the lawyer’s knowledge. The Committee advised that, once the lawyer became aware of the advertisement, the lawyer should counsel the client to conform the advertisement to the Rules of Professional Conduct and that, if the client refused, the lawyer’s continued representation of the client may imply the lawyer’s authorization or adoption of the advertisement. Similarly, we advised in Advisory Opinion 00-10 that a lawyer who participates in an internet service for locating attorneys should review, for compliance with Rules 7.1 and 7.2, all information about the lawyer provided through the service. By claiming a website listing, a lawyer takes responsibility for its content and is then ethically required to conform the listing to all applicable rules.

Likewise, a lawyer who adopts or endorses information on any similar web site becomes responsible for conforming all information in the lawyer’s listing to the Rules of Professional Conduct. Martindale-Hubbell, SuperLawyers, LinkedIn, Avvo, and other such websites may place their own informational listing about a lawyer on their websites without the lawyer’s knowledge or consent, and allow lawyers to take over their listings. The language employed by the website for claiming a listing is irrelevant. (Martindale.com, for example, uses an “update this listing” link for lawyers to claim their listings). Regardless of the terminology, by requesting access to and updating any website listing (beyond merely making corrections to directory information), a lawyer assumes responsibility for the content of the listing.

Information on business advertising and networking websites are both communications and advertisements; therefore, they are governed by Rules 7.1 and 7.2. While mere participation in these websites is not unethical, all content in a claimed listing must conform to the detailed requirements of Rule 7.2(b)-(i) and must not be false, misleading, deceptive, or unfair. In order to be exempt from the filing requirement of Rule 7.2(b), an advertisement must be limited to directory information only and must not be disseminated through a public medium. Comment 5 to Rule 7.2 specifically excludes from the filing requirement “basic telephone directory listings, law directories such as ‘Martindale Hubbell’ or a desk book created by a bar association.” The Comment does not address online versions of such directories; however, to require lawyers to file copies of online directory listings would be to require them to file copies of not only Martindale.com listings, but the South Carolina Bar’s online directory listing as well. The Committee does not believe the Court intended the rules to require such filing and therefore does not believe that an online listing containing only directory information must be filed pursuant to Rule 7.2(b). However, if an online listing is updated to include anything beyond directory information (which includes “the name of the lawyer or law firm, a lawyer’s job title, jurisdictions in which the lawyer is admitted to practice, the lawyer’s mailing and electronic addresses, and the lawyer’s telephone and facsimile numbers,” according to Comment 5), then 7.2(b) requires that a copy be filed with the Commission.

Soliciting peer ratings does not violate the Rules of Professional Conduct. Martindale-Hubbell has employed a lawyer rating system for more than 100 years, and federal courts have held that advertising factual information about such verifiable, independent ratings does not violate state advertising prohibitions against statements likely to mislead or create unjustified expectations about results. See, e.g., Mason v. Florida Bar, 208 F.2d 952 (11 th Cir. 2000). More recently, advertisements about newer ratings organizations, such as SuperLawyers, have been given the same regulatory berth by state agencies. See, e.g., In re Opinion 39 of the Committee on Attorney Advertising, 961 A.2d 722 (N.J. 2008)(per curiam)(vacating the court’s own committee’s 2006 advisory opinion prohibiting advertising of “SuperLawyers” and “Best Lawyers in America” designations, on the grounds that the prohibition is likely unconstitutional because such designations are factually verifiable). Therefore, provided that the rating is presented in a non-misleading way and is independently verifiable, including one’s rating in an online listing or elsewhere appears permissible.

Client comments may violate Rule 7.1 depending on their content. 7.1(d) prohibits testimonials, and 7.1(d) and (b) ordinarily also prohibit client endorsements. See Cmt. 1. In the Committee’s view, a testimonial is a statement by a client or former client about an experience with the lawyer, whereas an endorsement is a more general recommendation or statement of approval of the lawyer. 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. “The inclusion of 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.” Cmt. 3 (emphasis added).

Lawyers soliciting client comments on web-based business listings are also cautioned to adhere to Rule 8.4(a), which prohibits lawyers from violating the Rules of Professional Conduct through the acts of another. Even absent a specific prohibition against testimonials, several states have concluded that client comments contained in lawyer advertising violate the prohibition against misleading communications if the comments include comparative language such as “the best” or statements about results obtained. See, e.g., Virginia State Bar Lawyer Advertising Opinion A-0113 (2000). Rule 7.1(c) prohibits comparative language in all communications, Rule 7.1(b) prohibits statements that are likely to create unjust expectations about results, and Rule 7.2(f) prohibits self-laudatory language in advertisements. Therefore, a lawyer should monitor a “claimed” listing to keep all comments in conformity with the Rules. 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.

This opinion does not take into consideration any constitutional-law issues regarding lawyer advertising.