The New York State Bar Association Committee on Professional Ethics recently considered a really interesting issue: May a lawyer give clients a $50 credit on their legal bills if they rate the lawyer on an Internet website, such as Avvo, that allows clients to evaluate their lawyers?
The committee concluded that doing so would not violate an attorney’s ethical obligation, with a few caveats that I’ll get to in a moment.
Quite frankly, I was surprised by the committee’s answer, since my initial gut reaction was that this type of inducement would simply be impermissible. After all, the inquiring lawyer is seeking to pay a client to leave an online rating. It just doesn’t sound kosher.
That being said, after reading the entire opinion, the committee’s analysis makes sense — for the most part — and the conclusion is a logical one, albeit an unexpected one.
At the outset, the committee explained that Rule 7.2(a), which prohibits lawyers from rewarding clients for recommendations, doesn’t apply: “Rule 7.2(a) does not apply because the inquirer is asking for a rating, not a recommendation. The inquirer says he will give a $50 credit to any client who rates the lawyer, without regard to the content of the rating and without regard to whether the client recommends the lawyer to others. A client thus remains free to give the lawyer a bad rating and remains free not to check the box saying that she would recommend the lawyer to others. Moreover, the inquirer is not making the $50 credit contingent on whether some future person retains the lawyer as a result of the rating. Thus, the credit is not a ‘reward’ for making a recommendation ‘resulting in employment by a client.’”
Next, the committee concluded that online ratings were not testimonials and thus didn’t trigger the requirements of Rules 7.1(a), (d) and (e) and Rule 8.4(c). The committee determined that the rating was not an advertisement since it was not coerced or compelled: “A client’s freely given review or rating is not an ‘advertisement’ within the definition in Rule 1.0(a) because the review is not made ‘by or on behalf’ of the lawyer.”
The committee explained its rationale: “If the inquirer were to coerce or compel a client to rate the lawyer with respect to a pending matter, then the rating (i.e., testimonial) would be ‘on behalf of the lawyer’, and would hence be an ‘advertisement’ subject to Rule 7.1(e)(4). And if the lawyer, rather than the client, were to write the review or fill in the ratings, then they would be ‘by … the lawyer,’ and would be advertisements under Rule 1.0(a) subject to Rule 7.1(a), which prohibits advertisements that are ‘false, deceptive or misleading.’ A rating that purports to be made by a client but was actually made by the lawyer would be deceptive and misleading (and perhaps false as well). See N.Y. State 661 (1994) (‘a dramatization using a fictional client testimonial is unethical because it is inherently false, deceptive and misleading’).”
Even after reading the opinion, it’s still a bit unclear to me how a $50 credit that is contingent upon leaving a rating doesn’t amount to some form of coercion. At the very least it’s an incentive and there’s a fine line between incentivizing and coercing — but there is a certainly a distinction to be made. I only wish the committee had made it since that would have satisfied my curiosity and tied up any loose ends.
All in all, an interesting opinion and much thanks to my good friend Rochester attorney and social media evidence consultant Scott Malouf for pointing it out to me.
Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book “Cloud Computing for Lawyers,” coauthors the ABA book “Social Media for Lawyers: the Next Frontier,” and co-authors “Criminal Law in New York,” a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at firstname.lastname@example.org