Wednesday, November 18, 2009

Ignorance of 230 is bliss for lawyer ad regulation

A recent opinion of the South Carolina Ethics Bar reveals a not uncommon failure to appreciate the scope of §230. State bars have been struggling to deal with lawyers’ internet advertising, which can reach potential clients in new ways; anything on the internet, not just a banner ad, might in theory count as advertising. And new intermediaries have sprung up to help potential clients navigate, including lawyer rating services that offer profiles of lawyers. Sometimes for a fee, lawyers can “claim” their profiles and add extra information to make themselves more attractive. The South Carolina ethics body ruled that, when a lawyer claims a profile on such a service, she becomes responsible for its content under the ethics rules, including peer endorsements, the service’s own ratings, and client comments. But §230 was written to prevent states from such attributions unless the user herself—here, the lawyer—provides the content at issue, and the ethics body specifically stated that it was relying on the opposite rule, holding the lawyer responsible for statements of others. Section 230 precludes any liability for the parts of the profile lawyers did not create, including the three features highlighted by the ethics body: peer endorsements, the service’s ratings, and client comments.

1 comment:

  1. This is a GREAT point - not that state bar regulators consider the First Amendment limitations on their rules, let alone CDA 230.

    Josh King
    Vice President
    Business Development & General Counsel
    Avvo, Inc.