Ubiquitous access to the internet has made leaving a review easier than ever. A few keystrokes allow a disgruntled client, former client, or stranger to post a negative review on any number of sites: Martindale Hubbell, Avvo, Yelp, Google, etc. Many of these sites lack safeguards to ensure the truthfulness of the review and the seemingly consequence-free environment provided by the internet may encourage more negativity than warranted. Attorneys must keep in mind ethical obligations when deciding how and whether to respond to such reviews, even if the reviews may be of questionable veracity.
At the start of 2021, the American Bar Association (“ABA”) penned ABA Formal Opinion 496 (the “Opinion”) to guide attorneys in dealing with negative online reviews by clients or former clients. The Opinion focuses on Model Rule of Professional Conduct (“MRPC”) 1.6. Section (a) of MRPC 1.6 prohibits a lawyer from disclosing information relating to a client’s representation or information that could reasonably lead to the discovery of confidential information without the client’s informed consent. Although MRPC 1.6(b) permits disclosure of confidential information in certain circumstances, a negative online review alone does not constitute a controversy that would meet the exceptions listed in MRPC 1.6(b)(5). Further, any response that discloses information relating to the client’s representation or that would lead to the discovery of confidential information would exceed the disclosure permitted under the MRPC.
Most state bar organizations have analyzed this issue and provided opinions on the topic. The New York State Bar Association Ethics Opinion 1032 (2014) follows the MRPC 1.6 and calls informal comments on the skills of lawyers “an inevitable incident of the practice” and notes that such commentary may “contribute to the body of knowledge about lawyers for prospective clients.” Most states follow the MRPC and prohibit disclosure of any confidential information or anything that would lead to the discovery of confidential information. The State Bar of Arizona Formal Opinion 93-02 (1993) (“Arizona Opinion”) diverges from the general rule. The Arizona Opinion failed to address online criticism but allowed an attorney to participate in an interview and disclose confidential information to defend against accusations made by a former client that the lawyer was incompetent and involved in a conspiracy against the client. Discrepancies regarding allowable responses among states make a careful review of your state’s rules necessary prior to responding to a negative online review.
As a threshold matter, client confidences remain sacrosanct and any response that comes close to disclosing client confidences is likely prohibited. Thus, if a response is allowable, understand the limits in responding. If the direct response to the assertions might disclose client confidences, responding with the benign “the statements made in this post do not accurately reflect the matter” or “professional obligations prohibit me from responding fully to this” could work. If it’s possible to rectify the matter, perhaps “please call me so that we can discuss your concerns” opens that door. Remember though, that failure to meet expectations could cause additional negative press.
If no response is the response, consider asking the host of the website or search engine to remove the post. Generally, even when making such a request, an attorney needs to exercise caution and refrain from disclosing any information relating to the client’s representation or that could reasonably lead to the discovery of confidential information. If the post was made by someone who is neither a client nor a former client, then it may be possible to respond indicating that the individual who made the post is neither a client nor a former client and thus, no ethical duties are owed to the critic. However, even in this situation, the attorney still must be mindful not to disclose information about clients and matters.
Most attorneys desire to keep clients happy. Happy clients make good referral sources; likewise, unhappy ones represent missed opportunities. As with most relationships, increased communication goes a long way in preventing misunderstandings. Making a quick call or sending a concise e-mail providing a status update may help prevent a negative review. Our increased reliance on the internet coupled with the ease of access means that negative reviews have become an unfortunate by-product of the practice of law. When you are faced with this situation, take a breath, review the rules, and respond accordingly.
Tereina Stidd, J.D., LL.M. (Tax)
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (858) 453-2128
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