Yelp v. McMillan

This article is also available at The Student Appeal.

Since its founding in 2004, the San Francisco-based company, Yelp, has flourished internationally – boasting a monthly average of 86 million visitors in 2012’s fourth quarter. Self-described as “the best way to find great local businesses,” Yelp’s success is driven by its user-generated reviews, which topped 36 million in 2012. Through the website and mobile app, Yelpers can find word-of-mouth reviews on everything from restaurants to dentists, mechanics to lawyers.

In other words, Yelp is a big deal.

There are, however, unique problems associated with user-generated content sites and businesses. One form of this problem, which has notoriously plagued sites like Amazon and Yelp, is the “fake review.” Fake reviews hurt the integrity of a site and the user-experience by forcing the user to determine which reviews are real or fake. So Yelp is fighting back.

On August 20, 2013, Yelp filed a complaint against a California law firm, The McMillan Group in a San Francisco court claiming breach of contract, intentional interference of contractual relations, and two violations of CA’s business code. The thrust of these claims stem from the McMillan Group’s alleged planting of fake Yelp reviews in praise of the firm. For instance:

“The entire firm staff was very helpful. I never felt uncomfortable asking questions throughout the process, and the staff was very informative. I was kept in the loop throughout my filing. I certainly recommend McMillan Law Group for a quick, efficient and pain-free bankruptcy experience. I am now back on my feet again financially thanks to the firm.”

According to Yelp, McMillan attorneys and staff, virtually “disguised” as clients, wrote several, fake, five star reviews like the one above. Unfortunately for the McMillan Group, Yelp has sophisticated systems in place to weed out fake reviews, even in cases where the fake reviewers are not so sophisticated themselves. For example, the complaint states that the alleged fake reviewer used the same email account or IP address for multiple reviews (read: amateur hour).

In any event, this will be an interesting case to keep an eye on. The legal issues, which are a unique product of our rapidly developing internet/mobile-based society, will certainly provide important considerations for both businesses and users of sites like Yelp. But the trouble shouldn’t stop there. For lawyers and law students alike, the facts of this case should also raise another red flag . . . the ethical kind.

It only takes a few Professional Responsibility classes to realize that what this law firm is accused of doing is probably against the Model Rules of Professional Conduct. For instance, if an attorney for the firm wrote these reviews, it clearly seems to fall within Rule 7.1:

“A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”

I’d say that disguising yourself as a “fake client” and writing glowing reviews qualifies as a misleading communication. But say an attorney from the firm didn’t write the fake review. Say it was the summer associate/social media intern. Would a fake review violate 7.1? Perhaps not, but it may violate Rule 5.3, which requires that attorneys supervising take reasonable efforts to make sure non-lawyers’ conduct within the firm complies with a lawyer’s ethical obligations. This goes for administrative personnel, paralegals, etc.

Regardless of which rule is violated, under a plain reading of the Rules, it seems clear that a law firm posting fake reviews on Yelp or any other user-generated content site flies in the face of an attorney’s ethical obligations. It will be interesting to see how Bar Associations handle problems like this in the coming years, as they will surely become (if they are not already) a serious problem facing lawyers, and more importantly clients.

So, if you are a lawyer and your extracurricular activities include trolling sites like Amazon or Yelp, make sure you avoid writing fake reviews for your firm. You could not only end up facing a law suit, but you may wind up losing your bar card.

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