The Ratings Game

Sites like Avvo that rate lawyers and encourage consumer reviews are evoking reaction positive and negative in the legal community. And they raise ethical challenges, some familiar and some new to the medium.

If you're looking for a handyman, a place to eat, a resort in Mexico, or product ratings, you can visit any number of websites that publish consumer reviews to guide you. How much stock to place in those reviews is increasingly a subject of debate. But for many, websites like Yelp, Angie's List, and Amazon are helpful starting points in the same way the online encyclopedia Wikipedia is a starting point for research.

People who need basic legal service probably rely on a friend's recommendation, or maybe chat up another parent - the one who's a lawyer - at Junior's soccer game. They aren't likely to pour over the lofty volumes of Martindale-Hubble or other national, state, and local publications that routinely publish lists of top-rated lawyers. Those lists seem designed more for referrals and otherwise to keep lawyers in the know about the qualifications of their peers.

But for lawyers who concentrate in basic legal matters, advertising and solicitation rules in many states combined with high advertising costs can be a barrier to reaching prospective clients. And if you're practicing in those areas, you need volume.

Enter Avvo, a Seattle-based company that for the past few years has been compiling information on every lawyer it can find and making their identities available on a website that is both a search engine for consumers and a free or low-cost marketing tool for solo and small firm practitioners. It's not the only such site: Findlaw, for example, provides similar services. But Avvo is one that's evoking a lot of response, positive and negative, from lawyers listed there.

Like it or not, you're on Avvo

Avvo, short for avvocato, the Italian word for lawyer, was founded by Mark Britton. Britton, then a top executive at Expedia, came up with the idea while he was teaching a finance course in Italy and kept getting questions from people looking for lawyer referrals.

Avvo, which has obtained names of lawyers from all 50 states, invites them to "claim" their profile and market themselves on the site. Lawyers may talk about their level of experience in a concentration area or post an article they wrote about custody battles or DUI defense matters. Based on this self-reporting, an algorithm assigns each profiled lawyer a rating. (Every lawyer licensed and in good standing typically starts with a 6.5. The highest possible rating is 10. See the sidebar for more about how Avvo works.) The site also has a place for consumers to ask legal questions and get answers from lawyer members.

For the most part, Avvo makes its money by accepting advertisements from lawyers and by selling premium memberships, which allow attorneys to further customize their profile page and block out advertisements on their page from competitors in the same concentration area. Most recently, Avvo has implemented a "Legal Marketplace" for simple traffic ticket and other cases, which allows lawyers to quote a price to a consumer for handling a legal matter. Each time a potential client contacts an attorney in response to his or her quote, Avvo charges the attorney a minimum of $10, with charges varying based on location and practice area.

Some lawyers have embraced this model and have gotten a fair amount of business from the nearly five million consumers a month who cruise the site looking for someone to help them write a will, defend their kid from a shop-lifting charge, get an order of protection, or enforce a child support order. If a satisfied customer then publishes a glowing review of the lawyer, that can generate more calls from prospective clients.

"I can say I've gotten maybe one or two new clients a month from the site," said Nicole Sartori, who practices mostly criminal defense work in DuPage, Kane, and Kendall Counties. Claiming a basic Avvo profile is free, she added, noting that other marketing vehicles she uses are quite expensive.

Sartori, a member of the ISBA's Standing Committee on Law Office Management and Economics, said she spends time updating her profile and even suggests to satisfied clients that they post a positive review on her profile page. "I put work into it. I do actively seek out reviews and peer endorsements and if I win an award, I'm going to put it out there. I don't think this is any different than someone at the water cooler at work saying 'Hey, you should call my lawyer; he did an excellent job for me.'"

"The key is who contacted who first," she said, noting that ethics rules prohibit an attorney from directly soliciting a client.

Sartori gave a presentation about Avvo to members of the Kane County Bar Association and she said there were audible sighs from the crowd of mostly older attorneys. "It's the same response you get when you ask them if their firm has a Facebook page. People don't like that."

Many lawyers, particularly younger ones, embrace Web 2.0 rating/advertising models while others feel it is cheapening the profession because it cannot possibly be up to date on the information it has about its lawyers, the rating system seems random, and most importantly, such interactive sites could be setting up lawyers to run afoul of state supreme court rules that set limits on advertising, solicitation, and revealing client confidences.

"Attorneys need to get comfortable with the idea that they're not fully in control online and that that's okay," said Josh King, general counsel at Avvo. "Consumers are used to having more and more information in every other business. They're intelligent enough to differentiate between useful and non-useful feedback. Attorneys need to make sure their information is available. The biggest thing attorneys need to get comfortable with is the idea of consumer centricism."

But ISBA General Counsel Charles Northrup said there's another source of lawyer angst - worry that unclaimed profiles might contain incomplete and inaccurate information. He notes that at presstime his own unclaimed Avvo profile indicates he has been practicing for 74 years. And it lists a profile, complete with photo, for his father, who died in 2008 and is identified as still practicing law.

King's comments also highlight an aspect of Avvo that some lawyers have criticized harshly - its conscriptive nature. They're listed whether they want to be or not and, they argue, implicitly pressured to claim their profile to get a higher rating.

One could argue that a lawyer who chooses not to claim his profile will probably not be looking for clients on the site, so a mediocre rating makes no difference. But by the same token, this information is available to consumers who are going to get the impression that an excellent attorney (peer reviewed, published, lots of trial wins, involved in civic engagement, etc.) is really just quite average. Is Avvo, in a sense, forcing lawyers to play or suffer the consequences of a low rating?

"It's not the case that all attorneys are 'stuck' with a 6 or so unless they claim their profile," King said. "We have a data team that is always looking to add biographical details to lawyer profiles, and as a result there are thousands of lawyers with 'superb' Avvo ratings who haven't claimed their profiles. We can't get to all attorneys, and there certainly are plenty of excellent attorneys who have a low profile online, which prevents us from finding details to add to their profiles.

"It's important to keep in mind that Avvo is successful because we provide useful information to consumers," King said. "And the more information we can get, the better. Our ability to gather this information ourselves is limited by our resources and the amount of information available online, but it would be contrary to our mission (and what makes us valuable) to artificially reduce the information in attorney profiles in order to encourage [profile] claims."

Whatever the marketing method, ethics rules apply

King's words don't go down easy for many attorneys. After all, only in 1977 did the U.S. Supreme Court open the door for attorney advertising in its decision in Bates v. State Bar of Arizona, ruling that it was a form of commercial speech entitled to First Amendment protection.

Even so, state supreme courts are permitted to, and do, set guidelines about precisely what form the ad can take and what content it can contain. In Illinois, which has fairly liberal rules, advertisements that present verifiable truths are allowed, no matter how tacky they may seem to some. But superlatives like "best," "most trials won," and "expert" are frowned upon because they cannot typically be proven and might suggest endorsement by the supreme court or other agencies that regulate lawyers.

Lawyers must steer clear of any advertising that might create "unjustifiable expectations" from clients, said James Grogan, deputy administrator and chief counsel for the Illinois Attorney Registration and Disciplinary Commission ("ARDC"). For lawyers who are registered in more than one state, Grogan advises the attorney to behave according to the state with the strictest advertising rules.

Thomas E. Spahn, the ethics attorney at McGuireWoods, LLP in Virginia, noted in a CLE presentation to the American Bar Association that there are some 900 lists of attorneys out there, according to Jaffee. He advised attorneys to be cautious about how and whether they publicize that they've been named among the best. Be specific about the year(s) you were recognized and explain how the ratings publication/website or simple lists of lawyers' names are compiled.

Responding to negative reviews - proceed with extreme caution

Websites like Avvo raise a number of ethics issues that have yet to be fully examined by courts and disciplinary agencies. They also create a temptation for lawyers to fight back against a bad review without being mindful of the ethical rules.

As more sites like Avvo pop up and more of the traditional lawyer ratings groups develop a web-based platform, a number of issues will arise that might cause the supreme courts to tweak certain rules. At the very least, ethics experts caution attorneys to be extremely careful about the information they disseminate and the responses they make to happy or unhappy customers who post reviews online.

Late last year, a Chicago attorney was reprimanded by the Illinois ARDC for revealing client communications, a violation of Illinois Supreme Court Rule 1.6, in response to a former client who posted a negative review of the lawyer on Avvo. (Avvo says it gets a lot of calls from lawyers asking that negative reviews be removed and a lot of anonymous information from lawyers bashing their competitors.)

Betty Tsamis "exceeded what was necessary to respond to [the client's] accusations," according to the parties' stipulated acceptance of the facts. Tsamis was representing a client who worked for American Airlines and was trying to collect unemployment benefits. Tsamis revealed in her response to the negative review that the client had beaten up a coworker.

That disclosure ran afoul of Rule 1.6, which mandates that lawyers keep client communications confidential, according to the ARDC. Avvo recently updated Tsamis's profile to reflect the reprimand. They do not, however, post pending disciplinary action on lawyer profile pages.

"We're going to see more and more cases like this," Grogan said.

Tsamis' attorney, Kathryne Hayes, of Collins Bargione & Vuckovich, agreed and cautioned lawyers to think long and hard before they start typing a response to a negative online review.

"While we believe that Ms. Tsamis' conduct in regard to Rule 1.6 was within the Rule, this matter raises an important issue for all lawyers - especially those who are active on attorney-review websites and have the opportunity to comment on client reviews posted to these types of websites," Hayes said. "Lawyers should be cautious that if they choose to respond, their response does not exceed what is necessary to respond to the review and should be mindful that they do not reveal client confidences in violation of the Rule. Ms. Tsamis recognizes the importance of Rule 1.6 and the need to maintain confidential client information."

The problems associated with unhappy clients and advertising restrictions have not changed, Hayes said. "But the method of spreading information has and review sites are not going away. Clients can now share their views with the world and this can negatively impact a lawyer's business. Keeping our own conduct professional online may be the best way to maintain the standards of the profession when it comes to online reviews."

In Georgia, an attorney faced the same fate as Tsamis after responding to a negative online review, but in that case, the Georgia Supreme Court in a March, 2013 ruling, rejected the State Bar of Georgia's recommendation that a reprimand for attorney Margrett A. Skinner was sufficient punishment. Citing a 2010 disciplinary case from Illinois in which an attorney revealed client communications on a blog post - information that was a matter of public record because of a trial proceeding - and was suspended for 60 days, the Georgia Supreme Court noted that confidentiality is "a fundamental principle in the client-lawyer relationship." The court also cited a case out of Oregon involving an email communication, which resulted in a short suspension for the attorney involved.

Putting consumers first

King, the general counsel at Avvo, said the company gathers its information in each state, although some states, including Illinois, will not hand over its list of licensed attorneys because the judiciary, which regulates the profession, is not subject to open records laws. But Avvo has information from 50 states and conducts routine analysis to keep abreast of changes in the status of the lawyers it profiles and also screens comments from consumers before posting them to a lawyer's profile page.

He said they have consistently cut a third of all reviews that come in. "We'll take them down because they're unduly vitriolic or because there's nothing in the review to indicate the person was a client." And Avvo also has to be careful of "astro-turfing," the practice of lawyers or lawyers' colleagues from the same firm posting a positive review to pump up someone's profile and rating.

"I would say 80 percent of the responses we get are positive," he said of consumer reviews. So far, 150,000 lawyers have claimed their profiles, King said. Before posting a profile, Avvo must know that the attorney is licensed and in good standing, King said. It does its own market research to keep itself updated about the accomplishments of lawyers on its website, but also relies heavily on self reporting to adjust a lawyer's rating. "We have an algorithm that gets run against every lawyer's profile in the same way," King said, adding that they look at resumes, publications, big wins that have been publicized, law firm websites, and years of experience a lawyer has.

"It's completely objective." But it has its limitations: "It's only one way of thin-slicing lawyers. We cannot measure how empathetic a lawyer is or how quickly he will return phone calls."

What gives lawyers angst about Avvo, King said, is that Avvo puts the consumer first and lawyers second. "That consumer centrism is going to be problematic for lawyers who are used to services that always put lawyers first," King said.

But ISBA General Counsel Northrup said that "consumer centrism" is not necessarily the same as consumer protection. "Sites like Avvo are businesses, designed to make money for their owners. I'm not sure facilitating bidding wars for services, for example, is necessarily good for consumers [see below for more about bidding]. The purpose of lawyer advertising regulation is to protect the consumer. That's why there are express prohibitions against running false and misleading advertisements, creating unjustified expectations, and making unsubstantiated lawyer comparisons."

Furthermore, Northup said, it's each lawyer's obligation to comply with those specific rules. "A lawyer does not leave his or her ethical duties at the door just because it may be convenient or advantageous to do so."

Next up - online bidding for legal services?

Grogan, of the ARDC, emphasized that he is not in the business of regulating commercial enterprises. But he said his concern with online, interactive sites is that the information is not in real time. An attorney could be disbarred and an algorithm or a real person combing through records might not find that information. That, he said, would be a disservice to consumers of legal services. In Illinois alone, there are 94,000 licensed attorneys.

Grogan said his advice to consumers who use these websites is to always double check the information they're receiving by running the lawyer's name through their state's regulatory agency to make sure the lawyer is still in good standing. For lawyers, Grogan emphasized the need to always be mindful of Rule 1.6, which governs confidential communications, and rules that govern advertising and client contact (in Illinois, those are rules 7.1, 7.2, 7.3 and 7.4). To those who run online rating services, Grogan advises them to keep lawyer profiles "as up to date as is humanly possible" so as not to steer a prospective client in the wrong direction.

In addition to posting lawyer profiles, Avvo has a relatively new feature called "The Legal Marketplace" where it offers attorneys the opportunity to bid on a consumer's legal needs; typically small cases like resolving traffic tickets, getting an order of protection, and the like. "Why hasn't the legal profession turned into a marketplace?" King said. At Avvo, lawyers can name a price on how much they would charge to handle a matter and it's "been an interesting test so far," King said.

The bidding feature inspired a spirited and negative response on ISBA's criminal-traffic law discussion group. "There's been a lot of fretting about how this would be a race to the bottom, but we haven't seen that," King said. "There can be fixed prices for services, but lawyers are loath to embrace the ambiguity and risk that comes along with that. No lawyer would admit that half the matters they deal with are cookie cutters; that not every legal service needs to be custom."

King said that to a bunch of estate lawyers at a seminar in Denver, and he said: "There was an audible gasp in the room."

Janan Hanna is a Chicago freelance writer and a licensed attorney. A former staff writer for the Chicago Tribune, she writes for numerous news organizations.