Wisconsin Lawyer: Ethics: The Do's and Don'ts of Client Testimonials and Reviews:

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    April
    07
    2020

    Ethics: The Do's and Don'ts of Client Testimonials and Reviews

    Customer experience can be the basis of powerful testament, but lawyers must comply with ethics rules when using clients’ own words as marketing tools.

    Aviva Meridian Kaiser

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    Online testimonials and reviews are popular, and their popularity suggests that consumers value them. I must admit that I was somewhat skeptical. However, during the week in which I was researching this article, I received emails from my dentist, my hairstylist, and my auto service center asking me to write reviews on Google, Facebook, LinkedIn, and other platforms.

    My first response was to delete the emails. But then I felt guilty. I recalled the extra time my dentist took to explain a new procedure, the special aromatherapy treatment my hair stylist gave me because I seemed tense, and the concern the auto service technician expressed as I struggled to replicate the sound my car was making. I began to think about how my experiences with these service providers distinguished them from my experiences with other service providers. In addition to their knowledge and skill, they made me feel valued as a person and a consumer.

    The Power of Testimonials and Reviews

    Testimonials and reviews can be a powerful marketing tool for businesses. A recent article reveals that “92% of customers read online reviews before buying.”1 Testimonials or reviews can be the next best thing to a personal referral from a trusted friend or relative. In fact, “88% of consumers trust online testimonials and reviews as much as recommendations from friends or family,” and “97% of B2B [business-to-business] customers cited testimonials and peer recommendations as the most reliable type of content.”2 Moreover, 73 percent of consumers read six or fewer reviews before making a decision.3

    Aviva Kaiserorg akaiser wisbar Aviva Meridian Kaiser, Univ. of Buffalo 1979, is ethics counsel with the State Bar of Wisconsin. Ethics question? Call the Ethics Hotline at (608) 229-2017 or (800) 254-9154.

    Client testimonials and reviews also are a popular marketing tool for lawyers. They can be more persuasive than other types of marketing because they capture, through the client’s own words, the experience of working with the lawyer. They can validate the claims that lawyers make about themselves. Moreover, while data and statistics about the lawyer appeal to logic and reason, testimonials and reviews from clients appeal to the emotions.

    Although testimonials and reviews can be a powerful way to attract and retain clients, lawyers should exercise caution to ensure that the testimonials and reviews comply with the Rules of Professional Conduct.4 Not only are lawyers ethically responsible for testimonials and reviews posted on their own websites, they may be ethically responsible for reviews posted about them on social media or other websites over which they have some control, such as by claiming their profile or by paying for marketing or referral services.5

    If you are considering asking your clients to write a testimonial for your website or to write a review for other websites, the following list of dos and don’ts will provide some helpful guidance.

    Do These Things

    Keep in mind the duty of confidentiality owed to current and former clients when considering using testimonials and reviews. Lawyers owe the same ethical duty of confidentiality to former clients as to current clients,6 and that duty is extremely broad. It protects all information relating to the representation of the client or former client, including the identity of the client or former client. It protects information irrespective of whether that information is privileged, or if the lawyer believes that disclosure would be “harmless.” It protects information that is known to others or may be available from public sources.7 Lawyers must be aware of the duty of confidentiality owed to current and former clients when considering the use of such information for marketing purposes.8

    Obtain the client’s or former client’s informed consent to posting testimonials or reviews. SCR 20:1.6 prohibits the disclosure of information for marketing purposes unless the client or former client gives informed consent. Some marketing consultants recommend getting the client’s “permission.”

    Permission is not, however, the same as informed consent. Informed consent requires the lawyer to communicate “adequate information and explanation about the material risks of and reasonably available alternatives.”9 For example, in obtaining informed consent to include the amount of a judgment or settlement in a testimonial or review, the client should be advised about the risks of divulging such specific information about the case. Make sure to include in the informed consent how the testimonial or review is to be attributed, such as with the client’s full name, first name, or initials or anonymously.

    Include an appropriate disclaimer when required. “Soft” testimonials do not focus on specific outcomes but focus instead on a lawyer’s positive qualities such as competence, diligence, and values. As a general rule, they do not require a disclaimer.

    A disclaimer is, however, required for “hard” testimonials or endorsements, those that indicate a particular favorable result. A disclaimer can be short and simple: “Our prior successes are not indicative of future results.” Or a disclaimer can provide more information: “Please keep in mind that the outcome of a legal matter depends on its unique circumstances. We cannot predict or guarantee a particular result in a future matter based on our successful results in past matters.” Lawyers should place the disclaimer in a conspicuous place and use a font that does not minimize the disclaimer.10

    Provide clients with guidance for writing testimonials. Lawyers may want to provide clients with some concrete questions to help them think about their experience with the lawyer. Why did you choose me? What were some of the specific ways in which I helped you? What did you value most in working with me? This is also a convenient way to explain to clients the type of information that should be avoided in their testimonials or reviews.

    Need Ethics Advice?

    As a State Bar member, you have access to informal guidance and help in resolving questions regarding Wisconsin’s Rules of Professional Conduct for Attorneys.

    Ethics Hotline: To informally discuss an ethics question, contact State Bar ethics counselors org tpierce wisbar Timothy Pierce or org akaiser wisbar Aviva Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m to 4 p.m.

    Don’t Do These Things

    Don’t create an unjustified expectation about results that can be achieved. Marketing consultants encourage lawyers to post result-based testimonials and reviews. Even though a testimonial can truthfully report the result of a particular case, it might be misleading in violation of SCR 20:7.1. A statement is misleading under SCR 20:7.1(b) “if it is likely to create an unjustified expectation about results the lawyer can achieve.”

    Lawyers must take care that testimonials or reviews of a specific case do not create an unjustified expectation that the same results could be obtained for others in similar matters without reference to the factual and legal circumstances of the specific case. The inclusion of an appropriate disclaimer or qualifying language might preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public.11

    Don’t compare one lawyer’s services with another lawyer’s services unless that comparison can be factually substantiated. A testimonial or review is false or misleading in violation of SCR 20:7.1(c) if it compares the lawyer’s services with other lawyers’ services when that comparison cannot be substantiated by facts. Keep in mind that a testimonial or review is false or misleading in violation of SCR 20:7.1(a) if it omits facts that are necessary to prevent the testimonial or review from being misunderstood. For example, a court opinion excerpt about a lawyer’s abilities without the full opinion is misleading.12

    Don’t give clients anything of value in exchange for a testimonial or review unless the testimonial or review is identified as a paid endorsement. A testimonial or review is false or misleading in violation of SCR 20:7.1(d) if the lawyer fails to include the fact that payment has been made. Payments include not only cash but also things such as gift cards and credits and discounts to the client’s account.

    Don’t draft testimonials for clients. Keep in mind that a testimonial or review is false or misleading in violation of SCR 20:7.1(a) if it omits facts that are necessary to prevent the testimonial or review from being misunderstood. While the Wisconsin rule does not expressly bar client testimonials or reviews that have been written by the lawyer, the fact that the lawyer has written the testimonial or review should not be omitted. In addition, the value of a client’s testimonial or review is the client’s voice. When the testimonial or review tells the client’s experience in the client’s own voice, it will be genuine, even it if is anonymous.

    Conclusion

    Although testimonials and reviews are a powerful way to attract and retain clients, lawyers should exercise caution to ensure that the testimonials and reviews comply with the Rules of Professional Conduct.

    Endnotes

    1 Sam Stemler, 20 Impactful Statistics About Using Testimonials In Marketing, (Feb. 17, 2020).

    2 Id.

    3 Id.

    4 Client testimonials and reviews also are regulated by other types of laws, such as those dealing with truth in advertising.

    5 See, e.g, Conn. Informal Ethics Op. 2012-03; N.C. Ethics Op. 2012-8; Philadelphia Ethics Op. 2012-8.

    6 SCR 20:1.6, SCR 20:1.9(c)(2); Wis. Formal Ethics Op. EF-17-02.

    7 Wis. Formal Ethics Op. EF-17-02.

    8 Id.

    9 SCR 20:1.0(f).

    10 ABA Formal Ethics Op. 2010-457 (2010).

    11 SCR 20:7.1 ABA cmt. 3.

    12 Dwyer v. Cappell, Civ. No. 12-3146 (FSH) (D.N.J. June 26, 2013).




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