On January 13, 2021, the ABA’s Standing Committee on Ethics and Professionalism (“the Committee”) released an ethics opinion addressing responses to on-line criticism. The primary concern is protecting client confidentiality. ABA Model Rule 1.6 provides that “(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).” “Confidential information” is construed broadly to include any information gained during the professional relationship that the client has requested to keep private or the disclosure of which would be potentially damaging or embarrassing to the client. Thus, the definition could include public information and information known to third parties. Most states have adopted some version of Rule 1.6.[1] In short, responding to a negative online review presents an ethical minefield.
The Committee examined whether responding to an online review fell within the exception contained in Rule 1.6(b)(5), which provides that disclosure is permitted “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 Committee concluded that it did not. Because of its “informal nature,” a negative online review is not “a controversy” between lawyer and client. An “‘[u]nflattering but less formal comments on the skills of lawyers, whether in hallway chatter, a newspaper account, or a website, are an inevitable incident of the practice of a public profession, and may even contribute to the body of knowledge available about lawyers for prospective clients seeking legal advice.’” (Quoting New York State Bar Association Ethics Opinion 1032 (2014)). The Committee also reasoned that even if online criticism rose to the level of a “controversy” responding to it is not reasonably necessary or contemplated by Rule 1.6 to establish a “claim or defense.”
The Committee offered several best practices, including:
- Even if a lawyer is careful not to include confidential information, a public response may still be inadvisable because it may shine light on the dispute, invite further criticism, and keep the client’s negative commentary at the top of search engine results.
- Lawyers could respond by offering to discuss the dispute offline: “Please contact me by telephone so that we can discuss your concerns.” The Committee noted, however, that “[a]s a practical matter, this approach is not effective unless the lawyer has the intent and ability to try to satisfy the person’s concerns. A lawyer who makes such a post but does nothing to attempt to assuage the person’s concerns risks additional negative posts.”
- If the post is by a nonclient, the lawyer may consider responding that the person is not a client or former client. However, the Committee cautioned that if the nonclient is a friend or relative of a client or former client, even a general disclaimer could reveal confidential information. Of course, the lawyer is free to seek informed consent from the client to respond to the post.
- The lawyer may simply state he or she cannot respond: “Professional obligations do not allow me to respond as I would wish.”
In general, keep in mind the first rule of good risk management is to never make a problem worse. Any substantive response a lawyer makes to online criticism has the potential for making things much worse for the lawyer.
Read the full opinion here: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba-formal-opinion-496.pdf
[1] Note: California’s version is the strictest in the nation, prohibiting disclosure of confidential information unless it is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in death or substantial bodily harm. In other words, California’s rule does not contain an “implied authorization” exception, and does contain a “self-defense” exception similar to ABA Model Rule 1.6(b)(5), discussed in the Opinion. California Evidence Code Section 958 provides a “self-defense” exception to the attorney-client privilege, however it would not apply to a lawyer’s response to online criticism because, among other reasons, the statute is an evidentiary exception that applies in formal proceedings and not to informal public commentary.