Monday, May 09, 2011

State Bars & Testimonial Advertising - Ethics For Lawyers

Guest post by Josh King

Some state bars – like Florida, Indiana and South Carolina – have, in their zeal to over-regulate attorney advertising, flat-out prohibited testimonial advertising. Never mind that the FTC has consistently called on the states [pdf] to minimize restrictions on testimonial ads, or that there’s no empirical evidence that testimonial advertising is uniquely problematic. These states think it is bad, so they reflexively bar testimonials from attorney advertising.

One issue that perennially crops up is how attorneys can use their Avvo profiles in these states. The concern is that Avvo includes a forum where clients can leave reviews of attorneys, and these reviews could be construed as “testimonials” that violate the state ban on this advertising technique. The question crops up regularly with respect to client reviews on Avvo, Yelp reviews or endorsements on LinkedIn.

When this question arises, I tell lawyers to quit wringing their hands about it. There are two very basic reasons why:

1. Client feedback is not “testimonial advertising.” Sure, if you put it up on a billboard it is – because then you are taking editorial control and paying to have it published.  But when a client leaves a review on Avvo, the attorneys are not in control of the review. The client decides whether to write a review, and what the tone will be.  They might even leave a negative review. And while you can comment on the review, you cannot modify or delete it. Even Florida recognizes that this makes a big difference; that state’s “Guidelines for Networking Social Sites” explicitly note that attorneys are not responsible for third party reviews on sites like Avvo.

And that is a good thing, because besides the obvious common-sense distinction, there is a statutory consideration as well: 47 U.S. § 230 precludes any attempt by states to hold lawyers responsible for online content that they did not create.

But even more importantly . . .

2. Prohibitions on testimonial advertising are not legal. There is little question that the testimonial prohibitions in Florida, Indiana and South Carolina would be swept from the books if challenged in federal court (as has already happened in the last year with similar restrictions in New York and Louisiana [pdf]). Attorney advertising regulation is subject to the First Amendment, which means it must be narrowly applied and materially advance important state interests. And the state carries the burden of proving this is the case. Outright bans on testimonials cannot clear this bar. They are too broadly restrictive of free speech rights. And there is no chance that a testimonial prohibition covering independent client reviews could meet the narrowness requirement.

There are a lot of things attorneys need to worry about these days – generating new business, providing responsive service, zealously advocating for clients. But the advertising implications of postings left by your clients should not be one of them.

Josh King is general counsel and vice-president, business development for Avvo, Inc. He is a frequent writer and speaker on First Amendment and professional ethics issues in the practice of law. He can be reached at josh@avvo.com or (206) 734-4113.

All the opinions reflected in this blog post are those of the author. This guest post does not necessarily reflect the opinions of Furia Rubel.

2 comments :

Gail Lamarche said...

Great post. What about LinkedIn where you do have to control to publish or not?

Josh King said...

Yeah, LinkedIn comes up a lot. However, while it is within your negative control (i.e., you can choose not to publish the endorsement), the fact remains that both CDA 230 and the First Amendment protect lawyers from liability for such third party comments.

While I understand those lawyers who take a highly conservative stand on these matters, it would be far better if all members of the profession simply stood up for common sense and free expression when it comes to social media.

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