Why Attorneys Dislike Consumer Reviews (Reviewing an Article by Cassandra Burke Robertson)
I recently read an article by Prof. Cassandra Burke Robertson (Case Law) entitled “Online Reputation Management in Attorney Regulation.” This article discusses two of my favorite topics: (1) why do professional service providers struggle with online reviews more than other marketplace vendors?, and (2) can we build a well-functioning ODR to extra-judicially redress problematic online reviews? If you’re interested in online reviews, Section 230, the regulation of lawyers or ODR–and let’s face it, if you read this blog, you probably are–I recommend this article to you.
Professional Service Providers and Online Reviews
I’ve repeatedly written and spoken about the medical community’s battles against patient reviews, such as this essay that inventories some factors explaining why doctors seem uniquely opposed to patient reviews. Prof. Robertson addresses the same basic question, except for lawyers instead of doctors, and she provides a psychology-based explanation. She points to three main factors:
* reviews change the power balance between attorney and client, i.e., clients have new-found leverage over attorneys
* challenge to the attorney’s identity, i.e., attorneys always think they do a great job for their clients, so negative reviews are shocking. However, because of the changing power balance, even positive reviews undercut the lawyer’s self-assessment of their power over clients. The article concludes “This threat to the attorney’s identity structure makes it nearly impossible for the attorney to respond rationally to the client’s criticism.”
* ego threat and cognitive distortion. “[A]ttorneys facing online reviews are more likely to engage in a ‘defensive cognitive distortion’ that refuses to acknowledge any merit to the review, and instead lays blame entirely with the client, who may be seen as vengeful or unethical; essentially, the lawyer is unconsciously ‘seek[ing] an external perpetrator to buffer a potential blow to the ego.'” Plus, a negative review threatens the attorney’s finances.
She also discusses in some detail the confidentiality restrictions on attorneys responding to client reviews. I’ve always viewed this as a red herring, because confidentiality obligations do not prohibit professional service providers from discussing their general protocols without disclosing or discussing a client’s specific facts (or even acknowledging they were a client); and that’s assuming the professional makes the risky and often ill-advised choice to respond to client reviews substantively, which can easily exacerbate the situation.
So what should we do about false client reviews of lawyers? Approaching the topic from her legal ethics background, Prof. Robertson suggests:
I recommend that state regulatory bodies work with online intermediaries to weed out reviews that can be proven to be false and misleading. Such a process would protect attorneys by removing reviews that unjustifiably harm their reputation online, and it would also protect clients—both former clients, by preserving their right to offer critical‐but‐truthful evaluations, and potential clients, by improving the overall accuracy of the review sites.
I have a draft paper I wrote in 2011, and revised in 2013, that extolled the virtues ODR for consumer reviews, so I’m 100% on board with this approach (maybe someday I’ll even finish the paper). At the time, I was doing some consulting work for Modria, and I became convinced that ODR has a lot to offer review websites and the review ecosystem. However, ODR has several structural challenges, and ODR by bar organizations may have difficulties overcoming those. Most obviously, who will foot the bill for the ODR? Running a proper ODR requires expertise and money. Someone has to pay, and it seems unlikely bar associations have enough surplus funds to do this right. Also, there’s an institutional competence question. Bar organizations are in the business of disciplining attorneys, so will their prosecutorial mindset affect how they assess critical reviews? At the same time, bar organizations are captured by the lawyers they regulate, so will an ODR by bar associations swing wildly pro-attorney? I don’t know which way these forces cut, but these conflicting dynamics make me wonder if bar associations are the best ODR providers. An independent service like Modria would have some advantages as the ODR provider, but then the cost issue becomes even more of a barrier.
I’ve written numerous papers that overlap with the topics addressed in Prof. Robertson’s paper. A few highlights:
* Patients’ Online Reviews of Physicians
* The Regulation of Reputational Information
* Regulation of Lawyers’ Use of Competitive Keyword Advertising
* Online Word of Mouth and its Implications for Trademark Law