By David Hricik, Mercer Law School
This month, the Professional Ethics Committee for the State Bar of Texas issued Opinion No. 685, which addressed whether a lawyer could encourage current or former clients to post favorable reviews or comments on social media sites. The Texas opinion stated that, so long as nothing of value was given for the reviews and that the lawyer did not encourage false, misleading, or unfounded statements, this would be appropriate.
On the other hand, while not deciding whether a lawyer has an obligation to monitor posts, the opinion joined the views of other states and explained that “if lawyer becomes aware that a client posted a favorable review that is false, misleading, or unfounded, the lawyer should take reasonable steps to see that the statement is corrected or removed.” The opinion suggested that, if the lawyer controlled the site, the statement should be removed, but even if the lawyer did not, the lawyer should ask the author to address the concern, or “consider” asking the owner of the site to address the concern. Finally, it suggested that if that failed, the lawyer should make a “curative statement” — but one that did not violate client confidences.
Lawyers have been taken to task several times for revealing client confidences, but it has been after someone posts a negative comment and the lawyer, defending herself, revealed client confidences. The Texas opinion, like others, emphasized that revealing confidential information even in response to a negative review is improper, unless the client consents to disclosure.
I’m imagining a former client posting “David got me a better result than any other lawyer could have,” and me having to post something in response! So, below, please only post truthful things and don’t overstate my abilities or I’ll have to cure your kindness.
I think I’ve seen that sort of thing, too. And, obviously, this opinion and others like it apply equally there. Just as obviously, the heightened risk is to less sophisticated consumers of legal services than might be the case with our typical clients (I’m imagining yours). So, LinkedIn concerns me but I’ve looked on more typical-legal-consumer-oriented sites Avvo and, well, there’s some doozies there. (I looked up my own “profile” — which I haven’t claimed — and it’s pretty interest to read: it describes my practice reasonably accurately, but I’ve never provided data to it, and no one has reviewed me!)
On the other hand, why am I responsible if a client on their own initiative — or even with me saying “hey if you were pleased please share your thoughts” — uses their 1st Amendment rights to say things that they’re entitled to say, but I’m not allowed to under ethics rules? Why is that “my problem” and what about their rights?
Has this been seen on LinkedIn (which as I understand, runs fairly rampant with ‘testimonials’ from well-intentioned ‘friends’, who ‘want to help,’ but otherwise badly worded (and often incorrect) laurels.
I know that I have declined having well-meaning family members unfamiliar with what I actually do want to post ‘praise’ for skills they have not witnessed, but ‘sound like’ things I do (and even may do for others – just not the one wanting to give the praise).
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