December 2007
Featured Disciplinary Case
Topic
The First Amendment Absolutely Protects Subjective-Based Lawyer Rating Systems.
Summary
Avvo is a web-based information provider that claims to be able to furnish the consuming public with “Rating. Guidance. The Right Lawyer.” The Avvo homepage, http://www.Avvo.com/, extols:
Avvo is a website that rates and profiles every lawyer, so you can choose the right lawyer. Avvo delivers the information and guidance you need to help you make this important decision, even if you’ve never worked with a lawyer before. Here’s what you’ll find on Avvo…Profiles for every attorney in the state, with information including experience practicing law, disciplinary sanctions, professional achievements, and client ratings…The Avvo Rating: Based on information we have collected about a lawyer, the Avvo Rating is our effort to evaluate a lawyer's background, based on the information we know about the lawyer, using a mathematical model that considers the information shown in a lawyer's profile - information that, in our opinion, is relevant to assessing a lawyer's qualifications…
Notwithstanding such expansive representations,
Avvo fails to profile every lawyer. In addition, information that is actually contained on the website is somewhat idiosyncratic. For example, an
Avvo search reveals that it has been “119 years since Clarence S. Darrow was first licensed to practice law in Illinois.” Fortunately for his legacy, in reviewing Mr. Darrow’s career,
Avvo reports: “We have not found any disciplinary sanctions for this lawyer.” Although
Avvo was unable to determine Mr. Darrow’s “current area of practice”, it did manage to list him as either “Inactive or deceased”. In fact, Darrow died in 1938, a period long before inactive status was recognized as an available registration category for members of the Illinois bar. Thankfully,
Avvo was able to confirm, most unambiguously, that another Illinois lawyer, Abraham Lincoln, is dead. As to Lincoln, the
Avvo site curiously lists the former Springfield Illinois lawyer as having had only one speaking engagement in his career, a presentation where he talked about “Freedom and democracy” at a “Conference”. This conference is further described by
Avvo as the “Gettysburg Address.”
Avvo lists the year of the Gettysburg Conference as “Unknown”. In fact, Lincoln's famous speech was made at the dedication of the Gettysburg National Cemetery on November 19, 1863. History does not record the event as ever being referred to as a conference.
Distressingly, Avvo data may also not be as accurate or timely so as to protect an unassuming public. For example, one Angayurkanni Annamalai was licensed to practice law in Illinois in 1993 and in Missouri the following year. On May 1, 2007, Missouri suspended her with no opportunity for reinstatement for two years because she neglected an immigration matter, lied to her clients about the status of that matter, and then made misrepresentations to the disciplinary authority in order to impede an investigation. Illinois imposed reciprocal discipline on November 20, 2007, and suspended her for two years and until she is reinstated in Missouri. In re Angayurkanni Annamalai, M.R. 21910, 07 RC 1516. A search of the Avvo website on January 10, 2008 for a lawyer with the last name “Annamalai”, however, only reveals the following information: “14 years since Angayurkanni Annamalai was first licensed to practice law in IL. We have not found any disciplinary sanctions for this lawyer.” The page is silent as to her Missouri law license, information about her Missouri discipline, or her Illinois reciprocal disciplinary sanction. See http://www.Avvo.com/attorneys/angayurkanni-annamalai-1099049.html. Buried in another page is a note that Avvo last updated information about Annamalai on “03/27/2007.” So much for Avvo’s claim that it “delivers the information and guidance you need.”
Neither Abraham Lincoln, Clarence Darrow, nor Angayurkanni Annamalai ever received an “Avvo Rating.” Other practitioners have. For example, Washington State lawyer John Henry Browne found himself rated a 5.5. He and fellow lawyer Alan J. Wenokur believed that Avvo’s comparative rating system violated Washington’s Consumer Protection Act. The men filed a federal class action suit seeking injunctive relief. Browne also filed an individual claim seeking an award of monetary damages. Avvo moved to dismiss the suit. The primary challenge was to the accuracy and validity of the numerical rating system used by Avvo to compare attorneys. Avvo asserted that the opinions expressed through it’s rating system, (e.g., that attorney X is a 3.5 and/or that an attorney with a higher rating is better able to handle a particular case than an attorney with a lower rating), were absolutely protected by the First Amendment and could not serve as the basis for liability under state law. District Court Judge Robert S. Lasnik agreed with Avvo and dismissed the suit. He noted that Avvo's website contained numerous reminders that the Avvo rating system is subjective. The ratings were described on the site as an “assessment” or “judgment,” two words that implied some sort of evaluative process. The underlying data was weighted based on Avvo's subjective opinions regarding the relative importance of various attributes, such as experience, disciplinary proceedings, client evaluations, and self-promotion. How an attribute was scored and how it was weighed in comparison with other attributes was not disclosed, but a reasonable person, according to the Court, would understand that two people looking at the same underlying data could come up with vastly different ratings depending on their subjective views of what is relevant and what is important. A potential client would expect that a system designed to rate the professional abilities of attorneys would incorporate the expertise and reflect the subjective opinions of the reviewer. Neither the nature of the information provided nor the language used on the website would lead a reasonable person to believe that the ratings were statements of actual fact. The Court further noted:
This conclusion is bolstered by the fact that the Avvo rating system is an abstraction. A certain level of experience, for example, is assigned a value which is then crunched with the values assigned to the attorney's disciplinary history, references, awards, etc. The product of this calculation is a number between one and ten, which consumers are invited to use to compare attorneys in the same field. No reasonable consumer would believe that Avvo is asserting that plaintiff Browne is a “5.5.” The rating is figurative: it represents in an abstracted form some panoply of attributes and the values Avvo has assigned them. A user of the Avvo site would understand that “5.5” is not a statement of fact. To the extent the numbers are tied to fuzzy descriptive phrases like “superb,” “good,” and “strong caution,” a reasonable reader would understand that these phrases and their application to a particular attorney are subjective and…not sufficiently factual to be proved or disproved.
Browne maintained that he was not a 5.5 as rated at
Avvo.com. In so arguing, he relied, in relevant part, on his designation as a
“Super Lawyer” by
Washington Law & Politics magazine (coincidently another subjective-based lawyer rating system), as evidence that he could not possibly warrant
Avvo’s “average” rating. Further, he questioned the overall validity of the site because Supreme Court Justice Ruth Bader Ginsburg somehow earned a lower ranking than
Avvo's Chief Executive Officer, an individual named Britton. The Court opined that one may disagree with
Avvo’s evaluation of the underlying objective facts, but the rating dichotomy itself could not be proved true or false. The Court found that, “[t]he comparison of two ratings may provide additional fodder for the debate, but even surprising results like the fact that a Supreme Court Justice had a lower rating than defendant Britton do not prove that the ratings are true or false. Consumers and the attorneys profiled have access to the underlying information and, while they may disagree with a particular rating and/or the implied comparisons drawn therefrom, ‘[t]here is no objective standard by which one can measure an advocate's abilities with any certitude or determine conclusively the truth or falsity of [
Avvo's] statements...’ ” Therefore, to the extent that the plaintiffs sought to prevent the dissemination of opinions regarding attorneys and judges, the First Amendment precluded their cause of action. Further, as to the consumer protection laws, the Court ruled that consumers who might be misled by the information and ratings provided by
Avvo are the direct victims of the alleged wrongdoing, not the plaintiffs. If, for example, a consumer hired a disbarred attorney based on inaccurate
Avvo information, the consumer would be in the best position to seek redress for payments made to the attorney and/or any losses resulting from the attorney's inability to provide legal services. The damages alleged by plaintiff Browne were simply too remote to be proximately caused by
Avvo’s conduct.
The decision of the Court is John Henry Browne, et al., v Avvo, Inc., et al., ___ F.Supp.2d ___, 2007 WL 4510312 (W.D.Wash. December 18, 2007).
As an aside, Judge Lasnik described the subjective ranking process as “ludicrous.” Further, in a footnote, he remarked that “[c]omparisons and comparative ratings are often based as much on the biases of the reviewer as on the merits of the reviewed: they should, therefore, be relied upon with caution. For example, in 2006, a new magazine called Lawdragon purported to identify the 500 leading judges in the United States. The undersigned was chosen to be one of the privileged 500 and was described as follows: “Seattle's judicial star cites Bob Dylan in opinions while providing contraceptives and protecting orca whales.” The Leading Judges in America, Lawdragon, Winter 2006, at 72. What can one say about such nonsense? As my parents would tell me when I informed them of some of my amazing achievements as a child in Staten Island, NY, ‘that and five cents will get you a ride on the ferry.’ ”
