In this day and age, voicing an opinion is as easy as opening a social media site or an internet platform and typing away. Lawyers can be frequent targets of criticism. You have a target on your back if a case goes sideways. An unhappy former client may want to vent a little bit and you may be the target.
This kind of criticism sometimes comes in the form of a negative online review, with Facebook, Twitter, Avvo or any number of other sites. But lawyers have to be cautious 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.
ABA Formal Opinion 496 was released just a couple weeks ago. It identifies “the main ethical concern” of any response a lawyer makes to a negative online review as ensuring the “confidentiality of client information.”
SCR 20:1.6, the duty of confidentiality, protects all information relating to the representation of a client, including client identity, as well as information that could reasonably lead to the discovery of that information. Wisconsin Formal Ethics Opinion EF-17-02.
Aviva Kaiser, Ethics Counsel at the State Bar of Wisconsin, says in determining whether to respond to a negative review online, you have to start with the duty of confidentiality. “The protection afforded by the duty of confidentiality,” she says, “is not forfeited even when the information is available from other sources or is publicly filed.”
Kaiser goes on to say, “A lawyer is prohibited from disclosing information relating to the representation of the client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or the disclosure falls within one of the exceptions. Among these exceptions is the self-defense exception, SCR 20:1.6(c)(4). That exception permits, but does not require, a lawyer to reveal information to the extent reasonably necessary in the following circumstances:
- 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.”
“Defending one’s professional reputation is not among the permitted exceptions to the confidentiality rule.” In the Matter of Disciplinary Proceedings Against Peter J. Thompson, 2014 WI 25 at ¶ 44.
Kaiser cites ABA Comment 10: “Although a lawyer may genuinely disagree with statements that a client has made online about the lawyer’s conduct or representation of the client, that disagreement does not constitute a controversy within the meaning of SCR 20:1.6(c)(4) and does not authorize the lawyer to disclose information relating to the representation of the client in response to the negative online review.”
Kaiser adds, “The same conclusion was reached by several ethics opinions, including a Pennsylvania opinion that recognizes the increasing importance of online rating services. But it concludes that a lawyer cannot disclose information relating to the representation of the client in response to a negative online review without the client’s consent.
What does all of this mean?
A Los Angeles County Bar Association ethics opinion concluded, however, that “a lawyer may respond online to the negative review as long as the response does not disclose any information relating to the representation of the client, does not injure the client in any matter involving the prior representation, and is proportionate and restrained.”
ABA Formal Opinion 496 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 post is not accurate.
The opinion says, “Lawyers should give serious consideration to not responding to negative online reviews in all situations.” Such a response, of course, may lead to a flurry of further posts by the original poster.
But Kaiser says there are a couple other options. “Lawyers may post an invitation to contact the lawyer privately to resolve the matter. Another permissible online response would be to indicate that professional considerations preclude a response. If you want to invite a private conversation with the poster, I would do so cautiously. If the lawyer has been unsuccessful in attempts to resolve the client’s concerns before the negative review was posted, then inviting further attempts could result in additional negative comments. If the lawyer has not attempted to resolve the client’s concerns before the negative review was posted, the lawyer should evaluate whether any such attempt would be helpful before inviting the client to do so. For example, it may be that the particular client was not willing to discuss the concerns or was dissatisfied even though the lawyer was helpful and competent. Inviting such a client to discuss the matter privately would not be helpful and could result in additional negative comments.”
Kaiser says a Pennsylvania ethics opinion offered the following sample language if a lawyer feels compelled to write some kind of response online: “A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution, I do not feel at liberty to respond in a point-by-point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.”