Lawyers must use caution when responding to negative online reviews, new ethics opinion says
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Lawyers are frequent targets of criticism and sometimes that criticism takes place in the form of negative reviews online. As such, lawyers must be careful not to violate the duty of confidentiality when responding to negative online reviews. The ABA’s Standing Committee on Ethics and Professional Responsibility advises that the best response is often no response at all.
Formal Opinion 496, released Wednesday, identifies “the main ethical concern” of any response a lawyer makes to a negative online review as ensuring the “confidentiality of client information.” ABA Model Rule of Professional Conduct 1.6(a) generally provides that a lawyer shall not reveal information related to a client’s case unless the client gives informed consent, the disclosure is authorized by law, or if an exception applies.
An ABA press release is here.
The only exception to an attorney responding to online reviews is stated in Rule 1.6(b)(5), providing that a lawyer may reveal information:
To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.
The opinion notes that an online review is not a “proceeding,” and responding online is not necessary to establish a defense to a criminal or civil charge. Thus, the only part of the rule that even possibly would allow disclosure is establishing a claim or defense for the lawyer in a controversy between the lawyer and the client.
However, the Committee reasoned that “a negative online review, because of its informal nature, is not a ‘controversy between the lawyer and the client’ within the meaning of Rule 1.6(b)(5), and therefore does not allow disclosure of confidential information relating to a client’s matter.” The opinion further states that even if a negative online review rose to the level of a controversy, “a public response is not reasonably necessary … in order for the lawyer to establish a claim or defense.”
The opinion says the majority of state ethics opinions that have addressed the issue have determined that “the posting of criticism does not rise to the level of a controversy that would allow a lawyer to disclose confidential information in responding.”
The opinion also identifies what it calls “best practices” for lawyers when confronted with negative online reviews. A lawyer can ask the website host or search engine to remove the post. The lawyer cannot relay confidential client information but can tell the website host that the post is not accurate.
“Lawyers should give serious consideration to not responding to negative online reviews in all situations,” the opinion reads. Such a response may lead to a flurry of further posts by the original poster. Lawyers also could request to take the conversation offline with the generic response: “Please contact me by telephone so that we can discuss your concerns.”
If the poster is not a client or former client, the lawyer must use care in not disclosing any information “related to the client or former client’s representation without the client or former client’s informed consent.” The opinion cautions: “Even a general disclaimer that the events are not accurately portrayed may reveal that the lawyer was involved in the events mentioned, which could disclose confidential client information.”
If the criticism comes directly from a client or former client, the lawyer may not respond online. One permissible response, even to a negative post by a client or former client, is: “Professional obligations do not allow me to respond as I would wish.”