by Greg Beck
Web startup Avvo.com jumped into the business of rating lawyers this month and almost immediately found itself the defendant in a lawsuit that seeks to certify a class of all lawyers rated by the system. The suit claims that the rating system is arbitrary, noting that the dean of Stanford Law School was rated as “average,” while Lynne Stewart, who was convicted of providing material support to terrorists and disbarred, received a rating of “very good.” According to the complaint, the site engages in unfair and deceptive practices by “encourag[ing] consumer trust in a fallible system.”
As Eric Goldman points out in his Technology & Marketing Law Blog, the design of Avvo's system may take it outside the immunity for website publishers afforded by the Communications Decency Act. But while the site could likely be redesigned in a way that protects it from liability under the CDA, the complaint raises another troubling issue by claiming that running the website is a violation of state attorney ethics rules.
Washington’s Rule 7.1(3) provides:
An advertisement that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if presented so as to lead a reasonable person to form an unjustified expectation that the same results could be obtained for other clients in similar matters without reference to the specific factual and legal circumstances of each client’s case.
According to the complaint, Avvo’s CEO Mark Britton (a licensed attorney) violated this rule by running a website that could lead consumers to believe that certain lawyers are capable of handling certain cases. The complaint also claims that the website violates Rule 7.1(2), which provides:
A truthful statement is misleading if it omits a fact necessary to make a lawyer’s communication considered as a whole not materially misleading. A truthful statement is also misleading if there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyer’s services for which there is no reasonable factual foundation.
The complaint contends that, because the website omits relevant information about lawyers it rates and asks users to fill in the missing information, it is misleading.
The problem with this line of argument is that it means lawyers may be engaging in unethical behavior if they tell consumers that another lawyer is capable of handling a claim, or if they recommend a lawyer without researching and disclosing all information that might be relevant. Under this reasoning, rules designed to protect consumers from false and misleading advertising end up frustrating consumers’ ability to find a qualified lawyer.
Despite the problems with this position, several states have decided in ethics rules or opinions that it is unethical for lawyers to participate in similar online attorney matching services. Washington Opinion 2106, for example, held that it was unethical for an attorney to participate in an online, for-profit referral service that allowed lawyers to "verify" themselves by submitting references and filling out an online profile. Other states, like New Jersey, have come out against publications that recognize lawyers as "Super Lawyers" or the "Best Lawyers in America" (the New Jersey Supreme Court stayed the New Jersey decision until it could decide the issue for itself).
It is easy to criticize Avvo’s ranking methodology, and the site has already changed the way it ranks lawyers in response to the lawsuit. But critics should keep in mind that websites like this have at least the potential to provide consumers valuable and badly needed assistance in selecting a lawyer. Currently, many consumers are forced to choose an attorney, essentially at random, from the phone book. Indeed, the FTC has written to some of the states prohibiting legal matching services to explain how they are good for consumers.
In the ideal world, consumers could rely on a lawyer’s reputation in the community in selecting who to hire. As far back as 1977, however, the Supreme Court noted in Bates v. State Bar of Arizona that this ideal was out of touch with modern reality:
Although the system may have worked when the typical lawyer practiced in a small, homogeneous community in which ascertaining reputational information was easy for a consumer, commentators have seriously questioned its current efficacy. The trends of urbanization and specialization long since have moved the typical practice of law from its smalltown setting. Information as to the qualifications of lawyers is not available to many. And, if available, it may be inaccurate or biased.
433 U.S. 350 (1977) (quotations omitted).
The Internet has the potential to totally change the way
consumers find lawyers. If this lawsuit succeeds in shutting down Avvo, however, it may be a while before anyone is brave enough to create another such service.