This Week in Legal Ethics – New Professional Conduct Ruling

March 21, 2018

By Melanie Hodges Neufeld

The Law Society’s Ethics Committee recently released the following Professional Conduct Ruling as guidance for the profession. For your convenience, I’ve listed the ruling below but it can also be found in our Professional Conduct Rulings Database.

If you have any questions or concerns  regarding this post, please contact the Law Society at (306) 569-8242 or 1-833-733-0133.

Date:   February 9, 2018
Cite as:   2018 SKLSPC  1
Code Chapter:   4.2; 4.2-1
Code Heading:   Marketing
Classification:   Marketing of Professional Services
Practice Area:   General

Facts:

Law Firm XYZ is looking to increase their online presence, so they contacted a PR company. They would like to hold a contest to encourage current and former clients to write a review on Facebook or Google. Out of an abundance of caution, they wanted to be sure that there were not any ethical or other concerns that they were had not considered.

They propose sending the following to past/present clients:

Law Firm XYZ wishes to offer its former and current clients an opportunity to win exciting prizes while providing valuable feedback on their experience with our office at the same time. Until [date], we are offering our clients to rate our services and write a review on Facebook or Google and be entered to win one of the following exciting prizes:

Grand Prize:                 $500 travel voucher;
Runner-up Prizes:       5 – $100 prepaid credit cards;
Consolation Prizes:     1 of 10 $50 gift cards to Restaurant; 1 of 25 $25 gift cards to Clothing Boutique; 1 of 25 $10 gift cards to Coffee Shop

To enter, simply rate our services and leave a review. Although entrants are limited to one prize, multiple entries are permitted by leaving both a Facebook and Google review. The review can be anonymous to the public under a pseudonym but to qualify for entry, you must provide our office with the username the entry was made under.

To assist participants, information on leaving a Google review can be found here: [link]

Information on leaving a Facebook review can be found here: [link]

Please be honest and forthright in your review(s). We take considerable pride in our work and any feedback you can provide would be greatly appreciated.

Decision:

The Ethics Committee discussed the issue and was unable to find anything in the Code that specifically prohibits such a proposal. However, while it is not inherently wrong, there is a significant risk that the results may be unprofessional:

1. The law firm has no control over what is said about the law firm or the individual lawyer.
2. A review could breach the privacy or impugn the reputation of a third party.
3. There is potential for a review to contravene the rules against certain types of marketing as outlined in Commentary [1], Rule 4.2-1:

[1] Examples of marketing that may contravene this rule include:

(a) stating an amount of money that the lawyer has recovered for a client or referring to the lawyer’s degree of success in past cases, unless such statement is accompanied by a further statement that past results are not necessarily indicative of future results and that the amount recovered and other litigation outcomes will vary according to the facts in individual cases;

(b) suggesting qualitative superiority to other lawyers;

(c) raising expectations unjustifiably;

(d) suggesting or implying the lawyer is aggressive;

(e) disparaging or demeaning other persons, groups, organizations or institutions;

(f) taking advantage of a vulnerable person or group; and

(g) using testimonials or endorsements that contain emotional appeals.

4. Clients may believe the firm will select winners on some basis other than a random draw, and reviews could be more positive than if they were truly anonymous or independent.

It is the Committee’s understanding that a business on Facebook or Google cannot alter or delete reviews about them. While consumer’s reviews would not be governed by the Code, as we do not govern the opinions of the public, in this case the law firm is encouraging and eliciting reviews and providing potential compensation. In offering prizes, this becomes a form of marketing.

Lawyer X suggested that the firm could be clear and outline the types of things that cannot or should not be included. It was also suggested that the firm may advise that they may contact any reviewer and ask them to change or remove their review, if it contains something that contravenes the Code.

Any attempt to meddle with the comments would mean they do not accurately reflect the views of the public and would be advertising disguised as a candid review, and without editing problematic reviews, there is a potential for marketing that is offside the Code. Therefore, the Ethics Committee does not endorse this type of promotional activity.