Can a lawyer pay for a featured placement on a lawyer-rating directory like Expertise.com that calls listed lawyers 'experts'?

Plain-English summary

Expertise.com finds and reviews service professionals, including attorneys, and lists some firms without their knowledge through its own research. Firms may submit to be reviewed and listed (a basic listing is free and takes about a year), and may purchase a "featured placement" to appear first and to include social-media links. The Committee was asked whether paying for a featured placement violates Rule 7.4(b) by holding the firm out as expert by virtue of the site's name, and whether it violates Rule 7.2(c).

The Committee concluded a lawyer may not participate in any way in marketing via Expertise.com. Building on its Opinion 09-10, it explained that actively participating in an online business listing whose stock language violates the advertising rules is itself a violation: a lawyer who adopts, endorses, or claims an online directory listing takes responsibility under the rules for all content of the listing and the general content of the directory, regardless of who created the material. The same reasoning applies to host-created content that violates a rule like 7.4(b). The Committee grounded this in Rule 7.2(b) (a lawyer is responsible for the content of any advertisement the lawyer places or disseminates) and Rule 8.4(a) (misconduct to violate the rules or do so through the acts of another). Here, the site's name and URL violate Rule 7.4 because "Expertise.com" contains a form of the word "expert," which is prohibited, and the site refers to "the best local experts."

The Committee distinguished its Opinion 17-02, which had allowed certain accolades whose titles would otherwise be problematic if sufficient criteria were met and disclosures made, because here the inquirer is not in control of the content enough to take those measures.

On Rule 7.2(c), the Committee explained that paying for featured placement in a business-directory website is not itself a violation, as long as the payment is not tied to the referral of business as a quid pro quo; if a featured placement is the only benefit received in exchange, the payment is a reasonable cost of advertisement under the 7.2(c)(1) exception. Even so, the Committee concluded a lawyer may not pay Expertise.com for a featured placement, because any participation in Expertise.com by a lawyer is prohibited by Rule 7.4(b).

In practice

Under this opinion, a lawyer may not participate in or pay for placement (basic or featured) on Expertise.com, because the site's "expert" branding violates Rule 7.4(b) and a lawyer who adopts or claims the listing becomes responsible for that content under Rules 7.2(b) and 8.4(a). The opinion holds that paying for featured placement in a directory is not itself a Rule 7.2(c) violation when the fee buys only the placement and is not a quid pro quo for referrals, but that the Rule 7.4(b) problem bars participation in this particular site regardless.

Common questions

Q: Can a lawyer pay for a featured placement on Expertise.com?

A: No. The opinion concludes a lawyer may not participate in or pay for placement on Expertise.com because the site holds lawyers out as "experts" in violation of Rule 7.4(b).

Q: Is a lawyer responsible for content the directory's host created, not the lawyer?

A: Yes. The opinion concludes that a lawyer who adopts, endorses, or claims a listing takes responsibility under the rules for the listing's content and the directory's general content, regardless of who created it, citing Rules 7.2(b) and 8.4(a).

Q: Is paying for featured placement in any directory automatically improper under Rule 7.2(c)?

A: No. The opinion concludes paying for featured placement is not itself a Rule 7.2(c) violation when the fee buys only the placement and is not tied to referrals as a quid pro quo; the problem with Expertise.com is the Rule 7.4(b) "expert" branding.

Q: Does a lawyer's inability to control the content matter?

A: Yes. The opinion distinguishes Opinion 17-02, which allowed certain otherwise-problematic accolades with disclosures, because here the lawyer cannot control the content enough to take those measures.

Background and rules framework

The opinion interprets Rule 7.4 (communication of fields of practice and specialization; the 7.4(b) limits on holding oneself out as an "expert" or "specialist") and Rule 7.2 (advertising; the 7.2(b) content-responsibility provision and the 7.2(c)(1) reasonable-advertising-cost exception), together with Rule 8.4(a) (misconduct through the acts of another). South Carolina's rules correspond to the ABA Model Rules' advertising provisions. The Committee relied on its prior opinions 09-10 and 17-02.

Citations and references

Rules of Professional Conduct:

• MR 7.4 / SC RPC 7.4(b) (communication of fields of practice; limits on "expert"/"specialist")
• MR 7.2 / SC RPC 7.2(b), 7.2(c)(1) (advertising; content responsibility; reasonable advertising cost)
• MR 8.4 / SC RPC 8.4(a) (misconduct; violating the rules through the acts of another)

Other opinions cited:

• S.C. Bar EAC Op. 09-10: a lawyer who adopts an online directory listing is responsible for its content.
• S.C. Bar EAC Op. 17-02: use of accolades in advertising with criteria and disclosures.

See also

• NY State Bar Op. 1021: Using "Expert" in a Law-Firm Domain Name
• NY State Bar Op. 1007: Advertising a "Best Lawyers" Listing
• NY State Bar Op. 1131: Paying a For-Profit Lead-Generation Service

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-22-02/
• Original PDF: https://www.scbar.org/media/vbvd4yti/eao_22-02.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.

S.C. Rules of Professional Conduct: 7.2, 7.4

Facts

Expertise.com finds and reviews service professionals such as attorneys. The website states that it researches businesses by using customer referrals, public records, accreditations and licenses, and mystery shoppers. Some law firms are listed without the law firm knowing or requesting to be listed—presumably through Expertise.com's unilateral research and screening. Expertise.com states it lists businesses alphabetically. However, Expertise.com allows law firms to submit to be reviewed and included on Expertise.com, which Expertise.com estimates takes approximately a year. There is no cost to submit for a basic listing on Expertise.com. A law firm can also purchase a "featured placement" to take advantage of being seen first on the website page and include links to the law firm's social media on their Expertise.com listing.

Questions

• If an attorney or law firm pays for a featured placement on Expertise.com, does that attorney violate Rule 7.4(b) by holding the law firm and its attorneys out as experts by virtue of the website's name?

• Does paying for a featured placement on Expertise.com violate Rule 7.2(c)?

Opinion

Lawyer may not participate in any way in marketing via Expertise.com. As this committee, and several others around the country, have discussed in previous opinions, actively participating in an online business listing at a website whose stock language violates the advertising rules is itself a violation of the advertising rules. See, e.g., S.C. Bar Eth. Adv. Op. 09-10 (2009) (a lawyer who adopts, endorses, or claims an online directory listing takes responsibility under the Rules for all content of the listing and general content of the directory itself, regardless of who created the material). While Opinion 09-10 focused more on rule violations in the form of improper comparative language contained in client testimonials and endorsements submitted to the website, the same reasoning applies to content created by the host that violates some other rule, like 7.4(b). Regardless of the creator of the offending content and regardless of which rule it offends, it is the committee's view that a lawyer may not adopt, endorse, claim, or contribute to any online listing that contains language or other material that would violate the Rules if created and disseminated directly by the lawyer. See 7.2(b) ("(b) A lawyer is responsible for the content of any advertisement or solicitation placed or disseminated by the lawyer…") and 8.4(a) (misconduct to violate rules "or do so through the acts of another"). In this case, the website's name and URL violate Rule 7.4 in that Expertise.com contains a form of the word "expert," which is prohibited. Brief review of the website content further reveals reference to "the best local experts."

In S.C. Bar Eth. Adv. Op. 17-02 (2017) this committee addressed the use of certain accolades in lawyer advertising, the titles for which contain words or phrases that alone would be violative of our advertising rules, provided sufficient criteria were met and disclosures made to avoid being misleading. However, in this instance, inquirer is not in control of the content to an extent that would allow for completion of the measures discussed in EAO 17-02.

Paying for a featured placement within a business directory website is not itself a violation of Rule 7.2(c) as long as the payment obligation or amount is not tied to the referral of business as a quid pro quo. In the committee's view, if a featured placement in an online directory is the only benefit received in exchange, the payment would be a "reasonable cost of advertisement" under the 7.2(c)(1) exception. However, the committee believes a lawyer may not pay Expertise.com for a featured placement because any participation in Expertise.com by a lawyer is prohibited by Rule 7.4(b).