February 2017 • Volume 105 • Number 2 • Page 22
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Making the Most of Online Client Reviews
Online reviews are scary - and for most lawyers, inevitable. Attorneys need to promote and defend themselves (without being defensive) in cyberspace. Here's how to respond to negative reviews and otherwise manage your online reputation.
Consumers go online to rate restaurants, hotels, retail businesses, and home services. Specialized sites have sprung up to rate teachers, professors, doctors, and other professionals. So why should lawyers be an exception?
In fact they're not, and for that reason they need to promote - and defend - their reputation online much as they do in physical space, although the specific concerns and methods may differ. To begin with, attorneys need to claim and populate their page on the legal website Avvo, while promoting themselves elsewhere on other social media, says Stephen Fairley, CEO of The Rainmaker Institute.
"It's better to play offense than defense," he says. "It is not a matter of if you will get a negative review, it is a matter of when. Eventually, someone is not going to like what you did. It's better to take a proactive approach. We are in the consumer review economy. You can't get away from it. It is what it is. Let's deal with it."
The consumer review economy can be stressful, especially for smaller firms and people of older generations, says James Grogan, deputy administrator and chief counsel at the Illinois Attorney Registration and Disciplinary Commission (ARDC).
"If you're a sole proprietor, and you're trying to survive out there, it's challenging if a client files a negative review on you," he says. "I'm trying to survive. It's difficult and someone posts a review that I think is false. Is it OK if I say this or say that [in response]?" He adds, "If you're in a certain generation, you think about advertising and marketing, but it's a lot broader. The world is shifting underneath our feet in the way we deliver legal services." (For more from Grogan, see the sidebar for how to access his CLE program on managing your online reputation.)
Accentuate the positive
To build their online reputation, attorneys need to solicit testimonials and reviews from clients, in part because those who have had a positive experience don't necessarily tend to share, Fairley says. "Research has shown us that people are most likely to write reviews online about negative experiences," he says. "That is important to understand. If you just wait around, you're eventually going to get a negative review."
In soliciting positive feedback, don't take it too far, Fairley says. For example, someone recently forwarded him an e-mail from an attorney who was offering a gift card to a client in return for that person writing an online review on a social media site. That's a no-no, he says. (See the sidebar on endorsements.)
Avvo is probably the most important site to target, Fairley says. Second on the list would be LinkedIn, which "provides a great tool to be able to get reciprocal endorsements." If someone endorsed Fairley, for example, "I would turn around and go to your LinkedIn profile and write you a recommendation," and then LinkedIn asks if you want to add that to your profile. "It's perfect because it's often awkward to ask people," he says.
On a site like Avvo, gently persuading clients with whom you've had good experiences to post positive reviews will help boost your overall rating, notes Lea Gutierrez, senior litigation counsel and director of diversity and inclusion at the ARDC. "That way, your negative reviews go down lower" in the list, she says. "Because the positive is going to outweigh the negative, right? Just make sure that they're legitimate, actual posts from actual, happy clients."
Gutierrez gives an example of an Indiana attorney who was disbarred after posting positive reviews of himself - which became apparent when wording across different rating sites was identical - as well as jawboning clients who posted negative reviews by having his office manager inflate their bills. "And then he would refuse to correct the bill unless the client removed the negative reviews," she says.
Fairley also recommends using Facebook and Google reviews; the latter is useful in part because your star rating shows up on Google Maps when people try to locate your office. He does not recommend asking a client to post on Yelp because those reviews disappear if "the person who's giving you a review does not continue to write reviews on a wide variety of businesses," he says. "Yelp sees that as a bad thing, and they put the review you worked so hard to get under the 'not recommended' reviews," essentially hiding it from view.
The best defense - thanking the negative reviewer
What about when negative reviews are sitting out in plain sight? Fairley's usual advice, which he acknowledges sounds counterintuitive, is to thank the reviewer for taking the time to give feedback. "This is really hard to do, and at the same time, feedback is a gift," he says. "Some people mean to do you harm, and I get that. But rise above that."
Next, apologize to the person in a general way, Fairley says. "Don't apologize for what happened or get into the specifics," he says. "Apologize that the service, the quality, that the standards you have for you and your law firm were not lived up to in this case. 'I'm sorry that you had a negative experience. I'm sorry that your divorce took so long.'"
Step 3, invite the person to call you, so that you can set things right for that person - and look classy and respectful to others, Fairley says. "When somebody leaves you a negative review and you respond [on social media], you're not responding to that person," he says. "You're writing the rebuttal, if you want to call it that, for [the benefit of] every other person who reads the review."
Hotels and other travel businesses often take this tack, says Grogan, citing an example of how the Victory Central Park Hotel in New York responded to a negative review on Trip Advisor. "They don't slam the negative review," he says. "They say, 'We're sorry you experienced this. Thank you for voicing your concerns. We have informed the staff as to proper procedures, and we did take action when this occurred. We hope to welcome you in the future.'"
In that same vein, Grogan says, "The lawyer who has a negative review could respond by saying, 'I'm sorry to hear this. I welcome this person to call me because I do want to speak to clients about any concerns they may have.'"
Probably 80 to 90 percent of the time, this process works to defuse a negative review and start a constructive conversation, Fairley says. But there are always exceptions where "somebody responds back to you" after the suggestion to pick up the phone, he says.
The danger in getting defensive
So what if you respond with a suggestion to talk online and the person continues to go negative? "You don't want to get into an online argument with someone. That's just not going to put you in a good position," Fairley says. "Don't respond defensively. That's very, very tempting. 'You're a moron. You're an idiot.' Don't call them names."
Responding defensively can get you in trouble legally and administratively, Grogan cautions. "It's a developing area of case law, where someone fires back at someone who's critical," he says. "Regulatory issues develop because people immediately react. 'I'm going to flame this person!' And it's kind of like, put it away. Do not do anything immediately.
"And really seek some counsel with someone whose judgment you trust - a friend, someone you maybe went to law school with," he adds. "Buy some time and don't react. Most of these [disciplinary] cases happen when people overreact."
If you do respond to a negative review, though, Gutierrez agrees with Fairley's approach. "Be sensitive about responding professionally: 'I'm sorry you had this bad experience. Let's take it offline. Please call my office,'" she says. "Don't have this war online."
When an attorney resolves such an issue offline, it can be helpful to then close the loop online, especially given Fairley's sentiment that the response is truly aimed at third parties reading the review. But unlike, say, the retail business, a lawyer must ask for the client's permission before doing so, Grogan says.
"That's critical," he says. "Much of what we deal with is confidential. 'Would you mind if I posted this?' You've got to be careful that the client knows what is going on."
Another reason not to overreact is that it can call attention to the negative review, Gutierrez says. "Often times, people don't see things," she says. "By responding, you can make matters worse." In many cases, she says, "I don't think responding is in the attorney's best interest at all."
Grogan refers to the "Streisand Rule," based on a case in which Barbra Streisand filed a $50 million invasion of privacy suit against an environmental group that had posted 12,000 aerial photos to demonstrate the degradation of California's coastline - one of which showed, but did not identify, Streisand's house.
"Barbra got upset," Grogan says. "How dare they put my house up without my permission? Because I am a popular figure, and I am always at a security risk. People could do dangerous things to me, and now they know what my house looks like."
But the photo, identified only as "Image 3850," had only been downloaded six times prior to the suit, including twice by Streisand's lawyers, he says. Within 30 days of the suit's filing, it had been accessed 420,000 times.
"So why do you call attention to something?" Grogan says. "A lot of reviews aren't for everybody. By responding to them, do you add fuel to a fire that's totally unnecessary?"
Dealing with the site … or the reviewer
Another option for responding to a negative review: try contacting the site and getting the negative review taken down. This can work, but the frequently-asked-questions sections of most review sites typically say they don't remove negative reviews unless they contain either profanity or threats of violence, Grogan says.
"These sites are protected in ways that are amazing," he says. "It's not like a newspaper. There are federal protections [like the Digital Millennium Copyright Act] that essentially make them immune from suits. They are not republishing defamatory information."
Sites will sometimes invite the attorney to publicly respond to the reviewer, but they have their own reasons for encouraging that, Grogan says. "They want people to engage in a dialogue," he says. "It attracts people to the page, and the Google search engines love it." But ultimately, the attorney might not.
Can you sue the negative reviewer? Those convinced they have been libeled could ask another attorney about filing a Doe subpoena with the site to reveal the reviewer's name, Grogan says. Then, Gutierrez says, you need to file suit, or at least threaten to do so.
"We're starting to see a lot more defamation cases filed against people who post online negative reviews," she says. "False statements of material fact are always going to give rise to a cause of action for defamation. This is becoming a growing niche for attorneys to address cases of defamation. 'Internet removal attorneys' - they are advertised as such."
Respecting client confidentiality
Whether you're responding to a positive or negative review, you must take care to respect client confidentiality, Gutierrez says. That can be more challenging with a negative review because of the tendency to react in real time. She recalls a divorce case involving a dispute over fees, in which the attorney returned $650 out of a $750 refund the client was demanding but refused to turn over the client's file, claiming it was all work product.
After the case ended, the client posted a negative review of the attorney, who responded by posting confidential information such as the name, employer, the county where the divorce action was filed, the amount the client had paid - and even made mention of the fact that the former client had a boyfriend, Gutierrez says. The attorney was disciplined under Illinois Supreme Court Rule 1.6 for revealing confidential information.
In another case, a client posted a negative review on Avvo after losing a hearing to gain unemployment benefits. The attorney asked the client to remove the review, which the client offered to do - if the attorney paid back the entire $1,500 legal fee. The attorney refused, and Avvo ultimately took the review down itself, but the client then posted a second negative review, Gutierrez says.
"This got the attorney, and the attorney responded online," she says. "The attorney stated that the client had beat up a female co-worker, and that's what caused the client not to get the unemployment benefits." The attorney was also disciplined under Rule 1.6.
"We're seeing more and more and more of this around the country, lawyers who try to respond to these negative ratings that they believe attack their reputations online," Grogan says. "We're seeing other states taking a more aggressive posture to lawyers who respond and post confidential information. Even though you're saying to yourself, 'The poor lawyer might have been justified in saying what they said.'"
And yes, there is an exception to Rule 1.6 that says you can disclose confidential information to the extent necessary to address a dispute with a client, Grogan says. "But that does not apply to responding to online negative reviews," he says.
Ed Finkel is an Evanston-based freelance writer.
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Managing Your Online Reputation - More Tips from the ARDC
Interview subjects Jim Grogan and Lea Gutierrez of the ARDC share more tips about responding to online reviews and related issues in Knowing and Protecting Your Online Reputation, which was presented at a Solo & Small Firm Practice Institute Series program in Chicago last October and will soon be available as an ISBA Free CLE offering. Visit www.isba.org/freecle and follow the link to the Free Online CLE site to search the archives.
Endorsements: Handle with Care
It's risky to offer clients anything of value in return for their endorsement, and you should monitor endorsements of you and your services to make sure they aren't misleading.
Though the FTC has no guidelines for endorsements that are directed specifically at lawyers, it does address the issue for businesses generally. The following Q&A appears on the FTC website at http://bit.ly/2ijXVzj:
I'm starting a new Internet business. I don't have any money for advertising, so I need publicity. Can I tell people that if they say good things about my business in online reviews, I'll give them a discount on items they buy through my website?
It's not a good idea. Endorsements must reflect the honest opinions or experiences of the endorser, and your plan could cause people to make up positive reviews even if they've never done business with you. However, it's okay to invite people to post reviews of your business after they've actually used your products or services. If you're offering them something of value in return for these reviews, tell them in advance that they should disclose what they received from you. You should also inform potential reviewers that the discount will be conditioned upon their making the disclosure. That way, other consumers can decide how much stock to put in those reviews.
Here's more from the FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 CFR Part 255 (http://bit.ly/1CikwjJ):
§ 255.1 General considerations.
(d) Advertisers are subject to liability for false or unsubstantiated statements made through endorsements, or for failing to disclose material connections between themselves and their endorsers [see § 255.5]. Endorsers also may be liable for statements made in the course of their endorsements.
§ 255.5 Disclosure of material connections. When there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience), such connection must be fully disclosed. For example, when an endorser who appears in a television commercial is neither represented in the advertisement as an expert nor is known to a significant portion of the viewing public, then the advertiser should clearly and conspicuously disclose either the payment or promise of compensation prior to and in exchange for the endorsement or the fact that the endorser knew or had reason to know or to believe that if the endorsement favored the advertised product some benefit, such as an appearance on television, would be extended to the endorser. Additional guidance, including guidance concerning endorsements made through other media, is provided by the examples below.
New York rules, guidelines, and ethics opinions
The New York State Bar Association social media guidelines. The NYSBA guidelines remind lawyers that they have an obligation not to have any false or misleading statements on their social media sites. They are also obliged to review endorsements posted to their social media pages. The link to the guidelines is at http://www.nysba.org/socialmediaguidelines/.
New York Rules of Professional Conduct. The New York version of Rule 7.1(c)(1) addresses paid endorsements. (http://www.nycourts.gov/rules/jointappellate/ny-rules-prof-conduct-1200.pdf).
New York Rules of Professional Conduct 7.1
(c) An advertisement shall not: (1) include a paid endorsement of, or testimonial about, a lawyer or law firm without disclosing that the person is being compensated therefor;
New York County Lawyers' Association Formal Ethics Opinion 748. An NYCLA ethics opinion mentions New York Rule 7.1 in an ethics opinion at https://www.nycla.org/siteFiles/Publications/Publications1748_0.pdf:
Because LinkedIn gives users control over the entire content of their profiles, including "Endorsements" and "Recommendations" by other users (by allowing an attorney to accept or reject an endorsement or recommendation), we conclude that attorneys are responsible for periodically monitoring the content of their LinkedIn pages at reasonable intervals. To that end, endorsements and recommendations must be truthful, not misleading, and based on actual knowledge pursuant to Rule 7.1.
Other states' ethics opinions
A number of states have rules or ethics opinions similar to the NYCLA's. For example, here is what the Pennsylvania Bar Association said about endorsements in its Formal Opinion 2014-300 (http://bit.ly/2j6BePS):
Rule 7.2 states, in relevant part: (d) No advertisement or public communication shall contain an endorsement by a celebrity or public figure. (e) An advertisement or public communication that contains a paid endorsement shall disclose that the endorser is being paid or otherwise compensated for his or her appearance or endorsement.
- Bailey Cunningham, ISBA Assistant Counsel