ETHICS OPINION
The Supreme Court of Texas appoints the nine members of the Professional Ethics Committee from the bar and the judiciary and designates one of the members as chair. According to section 81.092(c) of the Texas Government Code, “Committee opinions are not binding on the Supreme Court.” The Committee posts drafts of its proposed opinions online at texasbar.com/pec for public comment before the opinions are finalized and printed in the Bar Journal.
Opinion No. 685, January 2020
QUESTION
PRESENTED
Under the Texas Disciplinary Rules
of Professional Conduct, may lawyers encourage current and former
clients to post positive reviews or comments and favorable “star”
ratings of the lawyer through a search engine’s or social media
platform’s review feature?
Statement of Facts
An online search engine includes a feature that allows users to post
reviews of business organizations and professionals, such as law firms
and lawyers. The lawyer has no control over the search engine, which
allows users to post a “star” rating of the lawyer and make comments
that can be seen by other users of the search engine. An aggregate star
rating of the lawyer appears on the search engine when a user searches
the name of the lawyer. Star ratings and comments left by individual
users can also be seen by users of the search engine.
The lawyer desires a favorable star rating on the search engine and
user comments that cast the lawyer in a positive light. To achieve this,
the lawyer asks current and former clients to leave positive comments
and favorable star ratings. The lawyer does not pay or provide anything
of value in exchange for these favorable reviews.
Discussion
This opinion addresses whether lawyers may encourage current and
former clients to leave positive reviews or star ratings online. This
opinion does not address the broader implications of social media on the
practice of law, nor does it address whether vendors, employees, or the
lawyer’s friends and family may be encouraged to post reviews or
favorable star ratings.
Lawyers, their websites, and their social media sites have long been
subject to lawyer advertising and solicitation rules. See State
Bar of Texas Advertising Review Committee Interpretive Comment 17 (March
1996, rev. May 2003, rev. 2010) (applying advertising rules “to
information disseminated digitally via the Internet”). The practice of
encouraging online reviews from clients on third-party websites is a
newer development.
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 Rules 7.03 and 7.05.” 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.”
This committee has not previously addressed whether a lawyer may
encourage current and former clients to post positive reviews. The
committee has examined a lawyer’s publishing a response to a
former client’s negative review on the internet, finding that a
lawyer “may post a proportional and restrained response that does not
reveal any confidential information or otherwise violate the Texas
Disciplinary Rules of Professional Conduct.” Professional Ethics
Committee Opinion 662 (August 2016).
While this committee has not previously addressed whether a lawyer may
encourage current and former clients to post positive reviews, ethics
committees in other jurisdictions have. For example, Connecticut lawyers
may seek positive reviews from clients and direct them to websites.
However, they cannot suggest that clients submit reviews that “contain
any information that would be ‘false or misleading’” and lawyers must
not give something of value to the client in exchange for submitting a
review. Connecticut Informal Opinion 2012-03 (2012). The District of
Columbia Bar Legal Ethics Committee has opined that information
contained on a lawyer’s social media pages must be truthful and not
misleading, especially when the lawyer controls the medium, such as a
firm website or a social media profile. District of Columbia Bar Ethics
Opinion 370 (Nov. 2016). The opinion further concluded that a lawyer has
no affirmative duty to monitor sites where the attorney does not have
editorial control over the postings but noted that, “under certain
circumstances, it may be appropriate for the attorney to request that
the poster remove the content, to request that the social networking
site remove the content, or for the attorney to post a curative
response.” Id.
Similarly, the committee concludes that, under the Rules, a Texas
lawyer may ask current and former clients to post favorable star ratings
and online reviews about the lawyer. The lawyer must not, however,
encourage anyone to make false or misleading statements or statements
that the person has no factual basis for making.
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.
Conclusion
The Texas Disciplinary Rules of Professional Conduct do not prohibit a
lawyer from encouraging current and former clients to leave positive
reviews or ratings online, provided that the lawyer does not encourage
the clients to make statements that are false, misleading, or unfounded.
If a 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.
TBJ
