Alert01.29.2021

ABA Weighs in on Lawyer Responses to Negative Online Reviews

by David P. Atkins and Marcy Tench Stovall

In an ethics opinion issued on January 13, 2021, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility  has provided guidance to practitioners on responding to negative online reviews while meeting the ethical obligation to maintain the confidentiality of any “information relating to the representation of a client” within the meaning of Rule 1.6(a) of the Model Rules of Professional Conduct.  ABA Formal Opinion 496.

The Committee first reminds us that Rule 1.6 “prohibits a lawyer’s voluntarily disclosure of any information that relates to a client’s representation, whatever its source, without the client’s informed consent, [the client’s] implied authorization to disclose,” or unless permitted under one of the narrow exceptions in the rule itself.  The exception that arguably extends to lawyers attempting to respond to public criticism is the so-called “self-defense” exception in Model Rule 1.6(b)(5).  (In Connecticut, that exception is in Rule 1.6(d).)  The Committee rejected the theory that a lawyer’s public response to online criticism amounted to “respond[ing] to allegations in any proceeding” within the meaning of the self-defense exception. 

The Committee then turned to the portion of the self-defense exception that has been the subject of most debate since the advent of online consumer reviews and social media trolling: the provision that frees a lawyer from the bar on revealing client “information” if done “to establish a claim or defense…in a controversy” with the client.  The Committee concluded that even if an unflattering public screed against the lawyer “rose to the level of a controversy,” a lawyer’s public riposte may not properly be deemed as “establish[ing]” a “defense” within the meaning of the self-defense exception.  The Committee bolstered its conclusion by noting the introductory language to the list of exceptions to client confidentiality:  even if  “a lawyer may reveal…information” permitted under one of the exceptions in Rule 1.6, he or she may do so only “to the extent the lawyer reasonably believes necessary to” strictly accomplish the purpose for which a particular exception was designed.  (Unlike ABA Model Rule 1.6, Connecticut’s version of the Rule does not expressly incorporate that restriction into the self-defense exception).  Connecticut Rule 1.6(e) (identical to Model Rule 1.6(c)), however, commands that lawyers  “make reasonable efforts to prevent…unauthorized disclosure of” any information relating to the representation of a client.

Risk Management Lessons

Online consumer commentary and Yelp-like reviews directed at all forms of service providers have become ubiquitous. Lawyers stung by negative online reviews by former or current clients need to navigate between two often contradictory goals:  protecting their online reputations without violating the strict obligation to protect the confidentiality of client information.  Some  lawyers have attempted to meet both goals by narrowly limiting the extent of disclosure.  The ABA Committee now has unequivocally rejected this approach.  Nevertheless, as those who provide risk management advice to lawyers and law firms previously have observed, the lawyer who is a target of an online critique (or worse) is not left defenseless.  Atkins and Stovall, “Negative Online Reviews: Pause and Think Before You Respond,” Connecticut Lawyer (March-April 2020).  As  the Committee notes, lawyers “who are the subject of online criticism may request that the website or search engine host remove the information” so long as the lawyer does not disclose protected information about the client.  Similarly, if the disparaging online comments have been posted by an individual falsely pretending to be a client or a former client the lawyer also is permitted to report that fact to the website host.

Finally, the ABA Committee gives the same advice that  public relations professionals frequently give:   publicly acknowledging, with restraint, the online criticism while explaining why the lawyer won’t, or cannot ethically, provide a substantive response.  The Committee suggested this wording:  “‘professional obligations do not allow me to respond as I would wish.’”  (A 2018 advisory opinion from Massachusetts Bar Counsel gave this recommended phrasing:  “‘I am sorry the reviewer feels this way.  Although I disagree with the reviewer’s comments about my representation, the Rules of Professional Conduct prevent me from discussing the facts of the engagement in a public forum such as this.  I have, however, reached out to the reviewer directly to discuss her concerns.’”)  Similarly, online review sites themselves, such as Yelp and Google, as well customer relations consultants for e-businesses such as Hubspot, provide businesses with sample responses to online comments from dissatisfied customers, many of which would not run afoul of Rule 1.6 or the ABA Committee’s interpretation of the rule.  See, https://blog.hubspot.com/service/respond-to-google

 

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