As state bars across the country continue to provide increasing guidance for attorneys looking to market their legal services on the internet without running afoul of ethics rules, a topic that has come up repeatedly is client ratings and reviews. For example, a significant amount of authority exists on the question of whether a lawyer can publicly respond to negative client reviews posted on consumer websites. As referenced in a previous post, and as surveyed in greater depth by the Pennsylvania State Bar in a 2014 advisory opinion, the general answer is a qualified yes, but not if it involves breaching client confidences (as always, check your state’s rules before proceeding, as the nuances vary by jurisdiction).
Earlier this year the New York State Bar Association’s Committee on Professional Ethics (“Committee”) addressed a different aspect of the client review issue, tackling the question of whether an attorney may offer a $50 discount in legal fees to clients who post a review of the attorney on a lawyer rating website. The opinion concluded that this practice is permissible under state ethics rules as long as the discount is not contingent upon the content of the review, the client is not coerced to provide the review, and the review is written by the client and not the lawyer.
Attorneys should consult their state bar if they are unsure whether they can offer a discount to a client who posts an online review, as rules vary from state to state and few have clear authority on the matter at this time.
Discount Cannot be Contingent Upon Content of Review or Future Employment
In this case, the Committee began its analysis by asking if this kind of discount would violate New York Rules of Professional Conduct (RPC) Rule 7.2(a), which prohibits lawyers from paying others to recommend their services. It concluded that it would not, because under these facts the lawyer would be asking for a “rating” rather than a recommendation. The discount would be available regardless of the content of the rating, whether the client’s review was positive or negative, and regardless of whether future clients chose to retain the lawyer based upon the review. According to this reasoning, the discount therefore would not amount to a “reward” for making a recommendation leading to legal employment. The Committee took care to specifically note that if the $50 discount were made dependent upon the content of the review or upon the lawyer securing future employment as a result of it, then it would in fact violate Rule 7.2(a).
A Client Review is Not an Advertisement in this Context
The opinion next addressed whether this kind of client rating should be considered the kind of testimonial that a lawyer can advertise, making it subject to Rules 7.1(a), (d), and (e), and Rule 8.4(c). The Committee explained that while client statements of this nature could be considered testimonials, they were not the kind that would be subject to attorney advertising rules because they were not being made “by or on behalf of” the lawyer. In other words, because the content of the ratings was entirely up to the clients, they were not statements being made “on behalf of” the lawyer. And because the client, rather than the lawyer, would be writing the review, it was obviously not being written “by” the lawyer. The Committee stressed that if a lawyer were to write the review and pass it off as being written by the client, this would both bring it under the purview of the above-referenced advertising rules, and also violate the prohibition on misleading advertising. The opinion also noted that any coercion in this process would demonstrate a lack of consent on the part of the client in violation of Rule 7.1(e)(4), which pertains to using testimonials from current clients. The Committee characterized the $50 at issue under these circumstances as an “incentive” rather than any sort of compulsion.
Notably, the opinion explained that because this case did not involve a request to advertise the client ratings at issue, the bar association did not rule as to how certain advertising provisions may apply here under such circumstances.
Securing Reviews Cannot Involve Deceit or Misrepresentation
Finally, the Committee noted that any of the examples of misconduct described above, such as coercing a client to write a positive review or writing the review and attempting to present it as having been written by the client, would violate Rule 8.4(c)’s prohibition on dishonest or deceitful conduct. The opinion did not address whether this rule would require the lawyer to disclose that he had given particular clients a discount to rate him online.
Can You Offer the Same Discount to Your Clients?
This opinion suggests that, under the facts described above, this kind of discount is currently a permitted practice pursuant to legal ethics authority in New York. However, it is unclear whether lawyers practicing elsewhere should pursue a similar strategy. There does not appear to be much authority on this question in other states, though for example, a 2012 informal ethics opinion out of Connecticut states that while lawyers may direct clients to an online rating site, they may not offer incentives for clients to provide reviews. Further, the New York opinion detailed in this post specifically stated that whether this practice complies with Federal Trade Commission law governing such exchanges was a question beyond its jurisdiction. In sum, and as always, be sure to check any current rules that may apply to this evolving issue in your state, and determine whether any clear authority permits this approach in your case.
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