“…and so do our own employees!”

Is it professional misconduct for members of a law firm or the non-lawyer assistants for which they are responsible to post fake reviews of their work to a consumer website? I would argue that could be: it is almost certainly deceptive advertising, which is prohibited to a greater or lesser degree in all state ethics codes, and it is dishonest and misleading communications of the sort that has drawn discipline for some attorneys in other circumstances. Whether or not such a slimy, if common practice (at least among other professions, like wrtiting) is sufficient to raise “a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects” will be determined by lawyers themselves, and you would be amazed at what many of them  don’t consider sufficient to do this. I am admittedly extreme on this issue: I don’t think lawyers should lie, and take a dimmer version of even harmless deception than most in my field. This is profession that depends on trust, and the more someone lies—I don’t care about what—the less trustworthy they are.

These issues arise because the online consumer site Yelp appears to have caught employees of the law firm The MacMillan Group posting fake positive reviews about itself, on behalf of fictional clients.

According to the lawsuit Yelp has filed, McMillan Law Group employees created accounts on the site, and immediately posted positive reviews of the firm’s services, posing as clients of the firm that didn’t exist. Yelp checked bankruptcy filings for the individuals’ names, and none were found; the McMillan Groups is bankruptcy firm. Yelp’s investigation, it says, shows that many of the reviews were created from McMillan’s IP address, and by clumsy fakers at that, since several of the reviews use the identical phrasing, including typos.

I don’t really care about the lawsuit: whether Yelp has grounds to claim damages is interesting but has little to do with ethics. Based on statements from the firm’s management, its argument seems to be that 1) the lawsuit has no merit and 2) its employees, who  it sure seems were caught red-handed, did their dirty work on their own. Hmmmmm. Two ethics provisions are in play here. Rule 5.3  requires the management of a firm and individual supervisory attorneys to “make reasonable efforts to ensure” that the non-lawyers employed by the firm, lawyers do not engage in conduct that would violate the professional obligations of the lawyer, and makes a lawyer responsible for the unethical conduct of employees if he or she orders it, ratifies it, or learns about it soon enough to stop it or mitigate it and doesn’t.Rule 8.4 says that a lawyer can’t do through the acts of others what he is prohibited by the rules from doing directly. Thus, if it looks as if the Yelping employees pretended to be satisfied clients without any inspiration, nudging, encouragement, oversight, willful neglect or negligent training from the lawyers in the firm, and just woke up one morning with the diabolical plan, the McMillan Group may not have done anything unethical, but merely had bad luck in hiring.

What do you think are the chances of this being the case?__________________________________Pointer: Legal Ethics ForumSources:ABA Journal, ABC, Tech DirtGraphic: Business InsiderEthics Alarms attempts to give proper attribution and credit to all sources of facts, analysis and other assistance that go into its blog posts. If you are aware of one I missed, or believe your own work or property was used in any way without proper attribution, please contact me, Jack Marshall, at  jamproethics@verizon.net.