Thinking about social-media muzzling your clients?
Wouldn’t it be great if, in your fee agreement, your clients agreed not to air any grievances about you on social media?
Yeah, it would be great to prohibit negative reviews. But it’s illegal.
I’ve written about how lawyers can’t ask a client or an opposing counsel not to file a complaint with the State Bar. Now, as the Federal Trade Commission’s Business Blog puts it, it’s also “illegal to ban honest reviews.”
If you’ve ever attended a seminar at which I’ve talked about fees, or if you have a copy of the State Bar’s Arizona Attorney’s Fees Manual, you may remember that I like to break fee arrangements down into what you must, may and may not put in your fee agreement.
Add no-review contract provisions to the cannot list.
As described by the FTC blog, the Consumer Review Fairness Act of 2016 makes it illegal for a company to use a contract provision that:
bars or restricts the ability of a person who is a party to that contract to review a company’s products, services, or conduct;
imposes a penalty or fee against someone who gives a review; or
requires people to give up their intellectual property rights in the content of their reviews.
“But I’m a lawyer,” you might indignantly retort. “I don’t have to comply with laws that apply to pizza parlors and nail salons.”
Yes, you do. Nothing in the Consumer Review Fairness Act, 15 U.S.C. § 45b, exempts lawyers.
The Electronic Frontier Foundation applauded the act for “standing up to the use of abusive form contracts to stifle freedom of expression.”
Some may argue that the act only restricts provisions in “form contracts,” and that lawyers’ fee agreements are not “form contracts.” To that I say: Do you want to be the test case?
The statute defines a “form contract” as one with “standardized terms (i) used by a person in the course of selling or leasing the person's goods or services; and (ii) imposed on an individual without a meaningful opportunity for such individual to negotiate the standardized terms.” 15 U.S.C. § 45b(2)(a)(3)(A). Are you selling your services? Do you use a fill-in-the-blanks fee agreement in which the only issues up for negotiation are the amount of your fee and the scope of representation? Do you negotiate all of your standardized terms with potential clients?
Decide for yourself whether your fee agreement is a form contract. I think fee agreements generally are but, hey, maybe I'm wrong.
As of March 2017, no-review provisions in a form contract were deemed void. By next year, other provisions in the act will take effect and give the FTC and states authority to take enforcement action for violations as deceptive or unfair trade practices.
Even if you decide the Consumer Review Fairness Act of 2016 doesn’t apply to you, think about the public-relations nightmare you might have on your hands if you include a no-review provision in your fee agreement and a former client decides to make a big deal out of it on Yelp or on a neighborhood listserv.