The Washington State Court of Appeals rejected a subpoena from a lawyer seeking to discover the identity of an anonymous reviewer who smeared her on Avvo, an online lawyer directory.
The ruling is a cautionary tale for lawyers who are already leery of anonymous online reviews.
It is the latest case in a long history of litigation between Avvo and the legal profession. After the ruling, Avvo said it needed to protect anonymous reviewers from lawsuits from “a disgruntled attorney.” The statement is curious, because lawyers are the customer base for Avvo. It sells profile upgrades, advertising and a marketing dashboard to attorneys.
Avvo also said it needed “to deliver consumers the transparency they've come to expect,” while its business model is actually to obscure the identity of reviewers.
No prima facie showing
Deborah Thomson, a divorce lawyer in Tampa, Florida, failed to make a prima facie showing of defamation, according to the court, because she didn't submit a declaration, affidavit or any other evidence in support of her motion.
The review, posted by "Divorce client," stated:
I am still in court five years after Ms. Thomson represented me during my divorce proceedings. Her lack of basic business skills and detachment from her fiduciary responsibilities has cost me everything. She failed to show up for a nine hour mediation because she had vacation days. She failed to subpoena documents that are critical to the division of assets in any divorce proceeding. In fact, she did not subpoena any documents at all. My interests were simply not protected in any meaningful way.
This statement is clearly defamatory, and it is perplexing how the court failed to see this.
In response, Thomson responded on Avvo:
“The writer of this review was not an actual client of mine. This is a personal attack from someone that I know. ... Unfortunately, AVVO does not verify the information contained in a negative client review, nor does it verify that a person was, in fact, an actual client, before allowing it to post on an attorney's profile.”
Thomson has an “Avvo Rating” of 8.6 out of 10, and all the other reviews are favorable, saying Thomson is an “Excellent attorney, “ “Experienced Grade A+ Lawyer” and “Very caring.”
1st Amendment protection
Avvo refused to identify the reviewer, and Joshua King, Avvo's vice president of business development and general counsel, told Thomson he believed the reviewer was a client.
Thomson subpoenaed Avvo seeking the identity of the anonymous detractor. The trial court denied her and the appellate court affirmed. Thomson v. Jane Doe, No. 72321-9-I, filed July 6, 2015.
“The First Amendment protects the right to speak anonymously,” the court said, saying Doe's speech is entitled to an intermediate level of protection.
“Considering the speech at issue here, we agree that supporting evidence should be required before the speaker is unmasked,” it said. “But, because Thomson did not produce any supporting evidence, her claim fails whether we review it as a direct appeal or discretionary review, de novo or for abuse of discretion.”
King said, "Whether they're leaving reviews on Amazon or commenting on an op-ed in their local paper, consumers have a right to protect their anonymity online, and to freely express their opinions on the products and services provided by businesses."
He added: "At Avvo, in order for us to deliver consumers the transparency they've come to expect, we need to protect and provide the ability to comment on the quality and delivery of professional services without fear of a lawsuit from a disgruntled attorney."
Avvo says its lawyer directory provides Avvo-rated profiles, client reviews and peer endorsements for 97% of all lawyers in the U.S.
For more information and opinions about Avvo and legal directories in general, see the following excellent posts from LawLytics.