South Carolina ethics advisory opinion states that lawyers are responsible for insuring that claimed third party website profiles and content comply with Bar Rules

Hello and welcome to this Friday the 13th edition of the Ethics Alert blog which will discuss the South Carolina ethics advisory opinion which states that lawyers who claim their profile on third party websites such as Martindale-Hubbell, SuperLawyers, LinkedIn, Avvo and who solicit peer ratings are responsible for insuring that the content complies with that state’s Bar Rules.  The ethics opinion is South Carolina Ethics Advisory Opinion 09-10 and the 2009 opinion is online here:

The ethics advisory opinion provides a comprehensive discussion of lawyers’ responsibilities regarding business advertising and networking websites such as Martindale-Hubbell, SuperLawyers, LinkedIn, Avvo, and other such websites under South Carolina Bar Rules, which are similar to many other state Bar Rules, including Florida.  According to the opinion, “(i)nformation on (these) business advertising and networking websites are both communications and advertisements; therefore, they are governed by (South Carolina Bar) Rules 7.1 and 7.2.  While mere participation in these websites is not unethical, all content in a claimed listing must conform to the detailed requirements of Rule 7.2(b)-(i) and must not be false, misleading, deceptive, or unfair.”

The opinion also states that “(s)oliciting peer ratings does not violate the Rules of Professional Conduct.  Martindale-Hubbell has employed a lawyer rating system for more than 100 years, and federal courts have held that advertising factual information about such verifiable, independent ratings does not violate state advertising prohibitions against statements likely to mislead or create unjustified expectations about results.  See, e.g., Mason v. Florida Bar, 208 F.2d 952 (11th Cir. 2000).  More recently, advertisements about newer ratings organizations, such as SuperLawyers, have been given the same regulatory berth by state agencies.  See, e.g., In re Opinion 39 of the Committee on Attorney Advertising, 961 A.2d 722 (N.J. 2008)(per curiam)(vacating the court’s own committee’s 2006 advisory opinion prohibiting advertising of “SuperLawyers” and “Best Lawyers in America” designations, on the grounds that the prohibition is likely unconstitutional because such designations are factually verifiable). Therefore, provided that the rating is presented in a non-misleading way and is independently verifiable, including one’s rating in an online listing or elsewhere appears permissible.”

“Lawyers soliciting client comments on web-based business listings are also cautioned to adhere to Rule 8.4(a), which prohibits lawyers from violating the Rules of Professional Conduct through the acts of another. Even absent a specific prohibition against testimonials, several states have concluded that client comments contained in lawyer advertising violate the prohibition against misleading communications if the comments include comparative language such as “the best” or statements about results obtained. See, e.g., Virginia State Bar Lawyer Advertising Opinion A-0113 (2000). Rule 7.1(c) prohibits comparative language in all communications, Rule 7.1(b) prohibits statements that are likely to create unjust expectations about results, and Rule 7.2(f) prohibits self-laudatory language in advertisements. Therefore, a lawyer should monitor a ‘claimed’ listing to keep all comments in conformity with the Rules.  If any part of the listing cannot be conformed to the Rules (e.g., if an improper comment cannot be removed), the lawyer should remove his or her entire listing and discontinue participation in the service.

Bottom line:  As I have said previously, state Bar ethics opinions are not binding on lawyers; however, this ethics opinion is useful for guidance since it addresses many of the issues related to lawyers’ participation in business advertising and networking websites such as Martindale-Hubbell, SuperLawyers, LinkedIn, Avvo.  The opinion concludes that, although a lawyer’s participation in such websites is ethical, the lawyer is required to insure that the content and communications are in compliance with that state’s Bar Rules and the lawyer should monitor a claimed listing to make sure that all comments comply with the Bar Rules.  Florida lawyers should also keep in mind that the recent Florida advertising rule revisions state that the advertising rules apply to “all forms of communication in any print or electronic forum, including but not limited to newspapers, magazines, brochures, flyers, television, radio, direct mail, electronic mail, and Internet, including banners, pop-ups, websites, social networking, and video sharing media.” 

Be careful out there!

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

About jcorsmeier

Joseph A. Corsmeier is an “AV” rated attorney practicing in Clearwater, Florida. He concentrates his practice primarily in the areas of defense of attorney disciplinary matters before The Florida Bar, attorney admission matters before the Florida Board of Bar Examiners, and professional license and disciplinary matters before the Boards of the State of Florida. He provides expert analysis and opinion on conflict of interest and other attorney disqualification and legal malpractice issues and he testified as an expert in the Florida courts. He served as an Assistant State Attorney in the Sixth Judicial Circuit from 1986 to 1990 where he prosecuted felonies exclusively from June 1987, and as Bar Counsel for The Florida Bar’s Department of Lawyer Regulation from 1990 to 1998. He also practices in the areas of estate planning and Medicaid qualification, workers’ compensation, and labor law. Mr. Corsmeier is the author of numerous articles for various bar publications, has spoken at numerous local and statewide seminars on various topics, including ethics and professionalism, and was an instructor of legal ethics for paralegals at Rollins College until the Tampa campus closed. He received his undergraduate degree from Florida State University and his J.D. from Mercer University. He is admitted to practice in all Florida Courts, the Supreme Court of the United States, the United States Court of Appeals for the Eleventh Circuit, and the Middle District of Florida. He is a member of The Florida Bar, American Bar Association, the Association of Professional Responsibility Lawyers, and the Clearwater and St. Petersburg Bar Associations.
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