Lawyer gets reprimand for responding to negative online review with embarrassing client information
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A lawyer who revealed a client’s criminal record and name when countering a negative online review violated an ethics rule that bans revelation of information relating to a representation, the Oregon Supreme Court has ruled.
But the state supreme court said lawyer Brian Conry should receive a public reprimand, rather than the 30-day suspension recommended by a trial panel of the state’s disciplinary board. The July 15 opinion is here.
The dissatisfied client had posted negative reviews on Yelp, Google and Avvo. The client posts included either the client’s first name, “Yarik,” or his first name and first initial of his last name. The client complained in one review that he paid Conry more than $20,000 for work on his immigration case (the others claimed about $30,000). Yet the government ordered him deported. When he hired a new firm, the client said, he won his case on appeal.
In the reviews, the client called Conry a “horrible attorney” and a “very crooked attorney.” The client said Conry made a lot of mistakes, “and the biggest one was that I was not deportable with the charges I had. And he still lost my case. I mean how bad of a lawyer do you have to be to lose something that can’t be lost?”
Conry did not specify the charges that he had faced or that he had been convicted.
In his online responses in June 2016, Conry said the client has been convicted of theft and burglary in the second degree. Conry said his work on the case delayed deportation, allowing the client to remain in the country until the law changed, and the client could argue that his burglary conviction was not a crime of moral turpitude requiring deportation. Conry also said the client conflated dollars paid for attorney fees with dollars paid for costs, such as filing fees and investigative services.
Conry used the client’s full name in his response to the Avvo review but removed it about a month later. He removed all his responses in October 2016.
The Oregon Supreme Court said the ban on revealing information relating to the representation of a client is defined broadly, and it is not limited to privileged information. The ban also includes information that would be embarrassing or detrimental to the client, the court said. Although the criminal convictions were a matter of public record, their revelation was embarrassing, the court concluded.
Conry had claimed that he was entitled to reveal the information under a self-defense exception. The exception allows a lawyer to reveal information relating to the representation of a client to the extent that the lawyer reasonably thinks is necessary to establish a claim or defense in a controversy between the lawyer and the client.
The Oregon Supreme Court said Conry couldn’t rely on the exception because he revealed information—the client’s name—that he didn’t reasonably think was necessary for his defense.
“By posting client’s name together with the details of client’s criminal history,” the Oregon Supreme Court said, Conry “revealed client’s identity and his convictions, not just to those persons who sought out these particular reviews but also to other members of the public, as well. Internet search engines would make client’s identity available to a much larger audience. Now, anyone who searched for client’s name in an internet search engine, for any reason whatsoever, could uncover the details of client’s criminal convictions.”
The Oregon Supreme Court noted three mitigating factors favoring a lesser punishment. Conry had no history of prior discipline, he made a full disclosure to the disciplinary board, and he had a cooperative attitude.
Aggravating factors included substantial experience in law practice and acting with a selfish motive.
The court said a public reprimand is appropriate “in light of the difficult issues presented in this case—one of first impression before this court—and the aggravating and mitigating factors.”
Conry did not immediately respond to an ABA Journal email seeking comment.
Conry’s lawyer, David J. Elkanich, told Law360 that the opinion sets a precedent with its holding that lawyers can respond to negative client reviews, as long as the response is within reason, and the lawyer thinks it is reasonably necessary.
“Although we are disappointed that the court imposed discipline, Mr. Conry is thankful that the court reduced the sanction to a reprimand” while noting the difficult issues and the fact that the case is one of first impression, Elkanich told Law360.