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April 27 — A lawyer may offer clients a $50 credit on their legal bills to provide voluntary, honest and independently generated reviews of the lawyer's services on websites such as Avvo that allow such evaluations, the New York state bar's ethics committee declared March 25.
A number of ethics committees have issued opinions on the propriety of asking clients for online testimonials. But the New York opinion appears to be the first that focuses on whether a lawyer may offer a small inducement—in the form of a $50 credit toward a legal bill—to clients who provide such evaluations.
The opinion responds to an inquiry from a lawyer who wants to offer clients a $50 credit on legal bills if they rate him on Avvo, a website that compiles attorney profiles and offers space for peer endorsements and client reviews.
The committee said the proposal is ethically permissible if three conditions are met:
• “the credit against the lawyer’s bill is not contingent on the content of the rating”;
• “the client is not coerced or compelled to rate the lawyer”; and
• “the ratings and reviews are done by the clients and not by the lawyer.”
The committee said the inquiry “raises issues under several provisions of the New York Rules of Professional Conduct.”
The first issue, it said, “is whether giving clients a $50 credit against their legal bills if they rate the lawyer would violate Rule 7.2(a),” which provides that a lawyer may not “compensate or give anything of value to a person or organization to recommend or obtain employment by a client, or as a reward for having made a recommendation resulting in employment by a client.”
The committee said “Rule 7.2(a) does not apply because the inquirer is asking for a rating, not a recommendation.” The $50 credit is given “without regard to the content of the rating and without regard to whether the client recommends the lawyer to others,” the committee said, and “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,'” the committee said.
The Connecticut bar's ethics panel has said that lawyers may direct clients to online rating sites but may not “give something of value to the client in exchange for submitting a review, because doing so would, if the client recommends the lawyer, violate Rule 7.2(c).” Connecticut Informal Ethics Op. 2012-03, 28 Law. Man. Prof. Conduct 300 (2012).
That opinion did not, however, address whether a credit toward legal bills constitutes a prohibited inducement.
The New York panel also dismissed the applicability of Rule 7.1(e)(4), which states that a lawyer cannot advertise a “testimonial or endorsement from a client” regarding a still-pending matter unless the client gives informed consent.
That standard is not implicated, the committee said, because a “client's freely given review or rating is not an ‘advertisement,'” which is defined in Rule 1.0(a) as a communication “made by or on behalf of a lawyer.”
“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),” the committee said. “Moreover,” it added, “a coerced rating would violate Rule 7.1(e)(4) because the lawyer would lack the client’s ‘consent.'”
The committee said the $50 credit to induce clients to provide a rating “is not coercion or compulsion; it is an incentive.”
On the other hand, the committee said, “a coerced rating, or one written by the lawyer, would constitute not only an advertisement subject to Rule 7.1(a) but also conduct involving deceit and misrepresentation in violation of Rule 8.4(c), attempting to pass off the lawyer’s words and opinions as [the] client’s.”
The committee said it did not address “whether Avvo ratings are ‘bona fide professional ratings' within the meaning of Rule 7.1(b)(1), or how other advertising provisions might apply if the inquirer were to advertise his Avvo rating.”
The committee also declined to opine on whether the lawyer must “disclose that he has given certain clients a $50 inducement to rate him on Avvo.”
In a 2014 opinion, the Pennsylvania bar's ethics committee said that “if a lawyer provides any type of compensation for an endorsement made on social media, the endorsement must contain a disclosure of that compensation.” Pennsylvania Formal Ethics Op. 2014-300, 30 Law. Man. Prof. Conduct 620 (2014).
But the Pennsylvania opinion, like the Connecticut opinion, failed to consider whether a credit toward a client's legal bills qualifies as compensation.
Copyright 2015, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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