Can you ask clients to post favorable online reviews?
Attorney Casey is a solo practitioner who is exploring ways to market her practice. She contacts a handful of her favorite clients and asks them to post favorable reviews online, and all but one enthusiastically agree to do so. When they ask Casey what they should say about her, she replies that she doesn’t want to tell them what to post, she only wants them to share their personal experience as her client. She sees a couple of online reviews over the next few days but does not do an exhaustive search to find all of her online reviews.
Two months later, she discovers a client review that she did not see when it was originally posted. Among other things, that review states that she is board-certified in Civil Trial Law and that she has tried more jury cases in the last five years than any other lawyer in the county. Neither of these statements is true. While she has an active trial practice, she is reasonably certain that other lawyers have tried more cases than she has. Moreover, she is board-certified in Family Law, not Civil Trial Law.
After pondering her ethical responsibilities with respect to this inaccurate posting, she decides to take no action. She is unfamiliar with the site hosting the review, but she knows it is an independent platform and believes that it is solely responsible for the accuracy of information on its platform. She assumes that she cannot possibly be expected to monitor for accuracy everything that is written about her on the internet.
Like many of the ethical issues that technology and the internet have brought to the legal profession, the Texas Disciplinary Rules of Professional Conduct do not speak directly to this situation. As a general matter, however, Rule 8.04(c) states that attorneys “shall not . . . engage in conduct involving dishonesty, fraud, deceit, or misrepresentation,”
But what rule applies when the lawyer did not author the misleading content, even if she did ask the client to write the favorable review? Ethics Opinion 685 (2020) considered this question and followed ethics opinions in other jurisdictions in finding there is no prohibition on lawyers asking clients to write favorable reviews.
The Opinion notes that several of the Rules in Section 7 of the TDRPC apply this general concept to attorney communications regarding legal services:
Although the Texas Disciplinary Rules of Professional Conduct do not expressly prohibit a lawyer from requesting search engine or social media reviews, a lawyer has a duty not to make or sponsor any communications that are “false or misleading.Rule 7.02(a). Comment 2 to Rule 7.02 states that the Rule “governs all communications about a lawyer's services, including advertisements regulated by Rule 7.04 and solicitation communications regulated by Rule7.03 and7.05.” Comment 2 further notes: “Whatever means are used to make known a lawyer’s services, statements about them must be truthful and nondeceptive.” Furthermore, Rule 8.04(a)(3) provides that a lawyer shall not “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”
The Opinion did find that if a lawyer “becomes aware” of misleading statements in attorney reviews, she should take “reasonable steps” to see that misleading statements are corrected or removed. Notably, though, the Opinion declined to take a position on whether a lawyer has an affirmative duty to monitor websites the attorney does not control for false misleading statements, but did offer guidance when the lawyer is aware of a misrepresentation:
The Committee does not decide the issue of whether a lawyer has an affirmative duty to monitor websites, social media platforms, or similar sites for false, misleading, or unfounded statements. But, if a lawyer becomes aware that a client made a favorable false or misleading statement or a statement that the client has no factual basis for making, the lawyer should take reasonable steps to see that such statements are corrected or removed in order to avoid violating Rules 7.02(a) and 8.04(a)(3). If the lawyer controls the content of the website or platform where the false, misleading, or unfounded statement resides, the lawyer has an affirmative obligation either to encourage the author to correct the false, misleading, or unfounded statements or to remove the statements entirely. If the lawyer does not control the website or platform and cannot remove the false, misleading, or unfounded statements, the lawyer should address the matter with the author of the review or consider addressing the concern with the administrator of that platform to see if the review can be removed or revised. Alternatively, the lawyer should consider making a curative comment on the website or social media platform. If the lawyer communicates with the platform’s administrator or makes a curative statement, the lawyer must be careful not to breach the lawyer’s duty under Rule 1.05 to maintain the confidentiality of client information. See Opinion 662.
The best response is C.