New York Legal Update

Commentary: Questionable Class Action Suit Commenced Against Avvo Attorney Rating Website

New York Legal Update is interested in not only providing the latest legal news in New York, but also following developments in how technology is transforming legal services, journalism, and how people can access legal services and information. Important events occurred last week in the development of technology to assist the public in selecting legal services, and unfortunately speaks volumes as to the arrogance of lawyers in their belief that consumers should not have access to information to help them select an attorney.

How do most people select their attorney? Probably by word of mouth. Or maybe they have a family member or friend who practices law. This may be a good method in some instances. But what if you don't know anyone who has used a lawyer, and can you really have confidence in the qualifications of your cousin Vinnie? What if there was a rating system that gave lawyers a numerical rating computed on various factors? Well on June 5th a company just launched a website service that does just that. The company is called Avvo and their service compiles data from state bar associations and other sources and tries to compute a numeric score between 1 and 10 for nearly every attorney in the country. Avvo was co-founded by Mark Britton, an attorney for 15 years and formerly the top lawyer at Expedia.com. He partnered with Paul Bloom, a veteran of Microsoft’s Consumer Division, and they assembled a team with expertise in law, consumer products, and technology to develop their product.

From the Avvo website, the company's principles are set forth as follows:

At Avvo, our mission is to help people navigate the complex and confusing legal industry. Choosing a lawyer is an incredibly important decision—yet most people have no idea how to go about doing it, and resources to guide them are scarce.

Avvo is guided by two basic principles:

1. Focus on the needs of regular people.

Many of the resources available today were developed for people who are already legal industry “insiders”—but Avvo was created specifically to help people who know very little about the law and may have no experience choosing a lawyer.

2. Provide information, as well as guidance. 

We believe that providing open access to information about lawyers, coupled with guidance on how to use that information, is the best way to help people choose the right lawyer. Information is empowering: the more people learn more about attorneys and how to select an attorney, the more comfortable and confident they’ll feel seeking legal help—and we think this will benefit both clients and lawyers.

I find these principles to be laudable. Just how does Avvo compute its 10 point rating assessment? That information is proprietary and not disclosed. Their website simply explains:

The Avvo Rating is our assessment of how well a lawyer could handle your legal issue. It is based on data we have collected about hundreds of thousands of lawyers - including their number of years in practice, disciplinary sanctions, and professional achievements. The data comes from multiple sources, including state bar associations, court records, lawyer websites, and information lawyers provide to Avvo. We have created a mathematical model that considers this information and calculates a score on a ten-point scale. The result is called the Avvo Rating.

What has been lawyers' reaction to the Avvo rating system? Well, you might have guessed it - a class action suit. Last Thursday a Seattle attorney by the name of Steve W. Berman, a managing partner at Hagens, Berman, Sobol, Shapiro in Seattle, filed a class action lawsuit challenging the Avvo rating system. Apparently some lawyers have complained that their Avvo rating is arbitrary, and that the Avvo system in some instances gave convicted felons higher numeric scores than law school deans (see story at News.com). Berman's firm has a history of filing class action lawsuits against technology companies. It's gone after Apple for its iPod (allegedly too loud), eBay (allegedly a monopoly), Expedia (allegedly too expensive), and Apple, again, for the iPod Nano (allegedly too scratch-prone).

The mathematical model used to compute the Avvo rating may or may not be flawed. And in some instances some lawyers may object to their rating. But I can't think for the life of me what the plaintiffs' theory of recovery in the class action would be. I suppose it would be something along the following:

I am a lawyer, and because I am a lawyer I and am not allowed to be rated by any service whether that service is based on a mathematical model of available data or otherwise. Lawyers cannot be rated on a numerical basis, and consumers are incapable in evaluating whether a particular rating system provides them with meaningful information. Such a rating system inherently provides consumers with misleading information, and since I am a lawyer, if I don't like my rating I am irreparably harmed, and I can recovery monetary damages from whomever created the rating.

It's an interesting theory of recovery. But nearly every category of product or service that I can think of I receives ratings in one form or another. Should Zagat's be careful when it provides numerical ratings for a restaurant's food, service and decor? Should movie critics be concerned when they give a movie 1 and half stars rather than 5 stars? Should the Automobile Association of America - AAA - worry about a class action suit when it gives a group of lodgings two diamonds as opposed to three. Rating systems give consumers valuable information in comparing two different products or services when they lack first hand information about those products or services. Rating services also provide an incentive for firms to provide the highest quality of services possibly. Do lawyers honestly believe that they are so unique, so different, that the services they provide are so different, that they simply cannot be evaluated on a numerical basis? If they do, they are probably not concerned with providing their clients with quality services in the first place. Wouldn't a good lawyer want to be rated?

I believe that what is needed is not less services which rate lawyers, but more. What if there were four or five numerical systems which rated attorneys. Then consumers who don't have a great lawyer in the family would be able to take information from the variety such services, as well as other information, and make the best possible choice. In addition, rating services are particularly important for legal services because lawyers have a monopoly in providing legal services. There is not a totally free market in legal services as the number of those who can provide legal services is restricted by the licensing requirement for lawyers. Only when there is a completely free market are consumers presented with all the information needed to make rational decisions as competing firms have the most incentive to provide that information.

Again, Avvo's rating system may not be perfect, but they should be commended in attempting to provide consumers with an additional method in selecting an attorney. And Mr. Berman's class action suit should be condemned by all lawyers. It should be noted that Mr. Berman's personal rating on the Avvo system achieved a 9.2. I wonder if in the eyes of the public Mr. Berman's rating will increase or decrease by commencing this questionable class action suit.

Commentary: Executive Power Gone Wild

Alfred Hitchcock reputedly said, "I'm not against the police, I'm just afraid of them." He was not afraid of them in the horror and gore sense. Nor was it the friendly street cop on patrol which raised the hairs on the back of his neck. Rather, I believe his sentiment was that there is something inherently scary and bone chilling surrounding those with official authority, those who watch us, those having some power over us, and those who have the ability to use that power to interrupt, throw obstacles before, harass, or in some cases destroy the lives of the rest of us. Three instances recently in the news remind us that indeed it may be wise to be afraid, very afraid of those with authority over us. The problem with authority can arise under three general types: (1) abuse of authority, (2) those in power being above authority, and (3) exercise of power without authority.

A recent example of the first, abuse of authority, can be found in the Duke rape case and District Attorney Mike Nifong. Here a local district attorney almost destroyed the lives of several young men where there was no evidence of guilt, and in fact there was much exculpatory evidence. He didn't investigate the case at all, and he used the power of his office for what? - political gain, the advancement of his own career, to gain favor with a particular segment of the community? Whatever the reason, don't you look at local district attorneys in a new light? Are you confident that you would be able to withstand unfounded charges being brought against you?

An example of those in power being above authority is the case of New Jersey Governor John Corzine, who was almost fatally injured because he failed to obey seat belt laws while also exceeding the legal speed limit. Here we have the highest executive officer in the state failing to comply with perhaps two of the easiest regulations to obey. What does this say? To me it is clear - the regulations meant for the rest of us are too uncomfortable or inconvenient for him. He, after all, was too important and too much in a hurry to be bothered with what everyone else in the state is expected to do. How many rules and regulations are you expected to obey on a daily basis? Maybe it would be a good idea to take a personal inventory and count them. After doing so, would the example of Mr. Corzine give you confidence that they apply to everyone equally?

The third type of problem, exercise of power of without authority, is suggested by the Appellate Division's decision Tuesday in People of the State of New York, by Eliot Spitzer, the Attorney Gen. of the State of New York v Grasso, 2007 NY Slip Op 03990. In that case, Attorney General Spitzer decided to bring certain charges against New York Stock Exchange chairman Richard Grasso because he received $187 million in compensation because - well . . . basically because Mr. Spitzer didn't like it. He thought it was too much. The problem, as the Appellate Division pointed out, was that Mr. Spitzer simply lacked the authority to bring most of the charges against Grasso. Mr. Spitzer was in effect trying to enforce his personal dislikes, and to make policy determinations which was the business of the legislature or the Stock Exchange itself. What other executive officers are out there with agendas seeking to make crimes out of things simply because they don't like them?

Are these isolate incidents? Probably. But maybe there is something happening out there wherein executive powers have somehow come to believe that they alone are above the law, and in effect the law itself. If so, Hitchcock's fear is truly justified. After all how likely is it that the local motel clerk will stab you to death in the shower? Isn't it more likely that there are more examples, that don't make it into the press, likes the ones above where executive officers have - to use a phrase - simply gone wild. Such examples give us pause to think how important it is that we constantly watch those in power, restrict the reach of their powers, and be very careful in the people we select to govern our lives.

Commentary: The Criminalization of America

Though not related specifically to New York, I found the following article interesting: Justice? What a Joke. The article is by Professor Jonathan Turley and describes how the current rage among legislators is to criminalize minor, essentially offensive behavior from such activities as using cell phones while driving, parents not appearing at meetings with teachers, growing hedges too tall, and children playing with toy guns. As an oft-times critic of always using the law to control people's behavior, I agree with Professor Turley's notion that a crime means nothing if anyone can be a criminal. The article is submitted for your perusal.

Commentary: "Wager of Battle" - Have We Advanced That Far?

For those legal history buffs out there, I recommend the Court of Appeals recent decision in Thyroff v Nationwide Mut. Ins. Co., 2007 NY Slip Op 02442, which I blogged about in my March 23rd post. The Court reviewed the history of the common law tort of conversion. As the Court reviewed, before the English royal government undertook the prosecution of crime, the rightful ownership of property was determined by a form of action known as "Wager of Battle" (unless the thief was caught in the act, in which case the thief was summarily put to death). The "Wager of Battle" was a physical altercation or duel between the victim and the thief, with the victor taking title to the goods. Overtime, the practice of trial by jury was instituted and repalced "Wager of Battle" as the later became "widely detested" by the populace. I asked myself while reading Thyoff - have we really advance that far? Physical alteraction has its obvious demerits. But it was probably over pretty quickly, the righteous party was probably victorious around 50% of the time, and most physical injuries heal. Today we have replaced physical altercation with a no less combative verbal and procedural altercation, these battles can last years, and is our current system of litigation any less "widely detested" by the populace? In Thyoff, the plaintiff's property (computer data) was allegedly taken in September 2000.  Mr. Thyoff's action was commenced in the federal courts, which proceeded to the Second Circuit, and then to the Court of Appeals on a certified question. It is now March 2007, and a jury trial has yet to be held. I wonder - if given a choice would Mr. Thyoff have chosen today's jury trial system or the more primitive "Wager of Battle?"