May 23, 2019 / 8:34 PM / a month ago

Can law firms be liable for fake reviews? Pennsylvania firm says no

(Reuters) - In December 2016, after she was allegedly assaulted by a coworker, a Pennsylvania woman named Tabatha Wolfe was looking for a law firm to represent her in a potential sexual harassment suit against her former employer. She visited the website of the employment firm Kraemer Manes & Associates. At the time, according to Wolfe, the firm's website included links to its stellar reviews at Facebook and Google. Based on the firm’s five-star rating, according to Wolfe, she contacted Kraemer Manes and signed a retainer agreement.

The engagement did not end well, according to an amended complaint Wolfe filed against Kraemer Manes in March in the Court of Common Pleas in Allegheny County, Pennsylvania. Wolfe is suing the firm for malpractice, alleging that it failed to act on her harassment claim before time ran out. The firm, in a motion to dismiss Wolfe’s suit, denies that Wolfe’s harassment claim is even subject to the time limit that she alleges that it failed to meet.

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But the malpractice dispute has become the vehicle for a much broader inquiry, with consequences beyond the narrow question of the viability of Wolfe’s claim against her former employer. She alleges that many of those glowing reviews – the purported client postings that she says she relied upon in deciding to retain the firm - were fakes.

According to Wolfe’s lawyers, Christine Elzer of the Elzer Firm and Gregory Paul of Morgan & Paul, Kraemer Manes directed non-lawyer employees to solicit their friends and relatives to post five-star reviews of the firm, allegedly rewarding employees with paid time off when they secured positive reviews.

Wolfe’s complaint, a prospective class action, details “blitzes” in which Kraemer Manes allegedly orchestrated flurries of positive reviews to boost its ratings on Google, Facebook and other review sites. The reviews were allegedly written by Kraemer Manes paralegals, clerks, office managers and other employees, as well as their friends, spouses and even the mother of one paralegal. “Although some of KM&A’s online reviews are from legitimate clients, enough five-star reviews are from non-clients to make KM&A’s aggregate scores materially higher than they would be if all reviews were from clients,” Wolfe’s complaint said.

Kraemer Manes, which is represented by Michael Betts, denied in its motion to dismiss Wolfe’s claims that any of its lawyers solicited false reviews of the firm. “Defendants wish to emphasize that the material factual allegations made in the complaint are groundless and completely false,” the firm said. It contends that Wolfe is attempting to smear its reputation with “scurrilous and vexatious allegations” in coordination with a disgruntled former employee.

“As we have told the court, the case is at most a garden-variety legal malpractice claim with add-on claims that should not survive the pleadings stage,” said Kraemer Manes counsel Betts in an email. The firm, he said, believes that it “acted appropriately in all respects” and that its favorable ratings at review sites were “entirely justified.”

The litigation between the firm and its onetime client raises really interesting and apparently novel legal questions about business’ exposure for allegedly deceptive online reviews. Allegheny County Judge Christine Ward heard arguments Wednesday from both sides at an hour-long hearing. According to Wolfe’s lawyers, she did not ask substantive questions or provide a timeframe for a ruling on Kraemer Manes’ dismissal motion.

Reviews have become a critical marketing tool for law firms. A 2016 Avvo white paper asserted that 95% of consumers said they considered online reviews in selecting a law firms - and nearly half of those consumers, according to Avvo, reported that online reviews were a “very important” factor. In a January 2019 article citing the Avvo study, the American Bar Association Journal posited that for many law firms, online reviews “can be the difference between success or failure.”

The ABA article advised law firms to be on the lookout for the “serious problem” of fake reviews, noting that the New York state AG’s office has gone after companies that provided businesses with fake reviews. The Federal Trade Commission also frowns on deceptive online reviews. In February, the commission brought its first case challenging fake reviews on an independent website, suing a marketer that generated and posted fake endorsements at Amazon.

But according to Kraemer Manes’ filings in the Wolfe case, business cannot be held responsible for what other people say about them online. The law firm argued in its reply brief seeking dismissal that Wolfe’s theory would open a Pandora’s box of liability for any business that failed to police online reviews for accuracy.

“Not surprisingly, the law does not recognize such claims,” the firm argued. “Most fundamentally, allegedly misleading reviews by third parties cannot be regarded as representations made by the firm that is the subject of the review.”

Kraemer Manes said that is especially true for law firms, which, it argued, are not subject to state consumer protection laws but only to discipline by the Pennsylvania Supreme Court when they’re engaged in the practice of law. (Wolfe responded that legal marketing does not fall into that category.) And even assuming the truth of Wolfe’s allegation that she was deceived by the firm’s online reviews, Kraemer Manes argued, she can’t show she was harmed as a result. There’s no cause of action for fraud, the firm argued, unless a plaintiff can establish that the fraud led directly to an injury.

In an interview, Wolfe counsel Elzer told me Kraemer Manes’ primary argument – that it is not responsible for posts by other people – is “frankly ridiculous.” The theory of Wolfe’s case is that Kraemer Manes actively solicited the false reviews, she said. The firm knew whether people purporting in online reviews to have been clients had truly received legal services, Elzer and co-counsel Paul said. It should have noticed that some online reviewers shared surnames with firm employees.

The firm certainly noticed when Wolfe posted a negative review on Google after she hired new lawyers in her employment dispute, according to Wolfe’s amended complaint. In a letter sent within weeks of her one-star review, an associate at the firm threatened litigation over her allegedly defamatory post. (The letter is attached to Wolfe’s complaint.) Kraemer Manes said it would drop all of its claims against its ex-client if she deleted the negative post “in its entirety.”

It’s worth pointing out that Kraemer Manes made a change to its website after Wolfe filed her suit. The firm used to have a banner highlighting its five-star ratings at various review sites. That banner no longer appears. (Wolfe does not allege that she relied on the banner, which first appeared in 2018, after she and the firm parted ways.) And though the firm’s 125 Facebook reviews are universally glowing, Yelp posted an alert to go along with its four posted reviews of Kraemer Manes: “A number of positive reviews for this business originated from the same IP address. Our automated recommendation software has taken this into account in choosing which reviews to display, but we wanted to call this to your attention because someone may be trying to artificially inflate the rating for this business.”

Kraemer Manes counsel Betts said the firm was not aware of the Yelp notice and is looking into it.

The views expressed in this article are not those of Reuters News.

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