Negative Review? What NOT to do.

As online reviews of services increase, more & more service providers are grappling with how to respond to negative reviews.  Lawyers are no different.

I’ve blogged and taught on Online Reputation Management.  The general rule for lawyers is that it is okay to respond to a negative review, so long as the response does not disclose information relating to the representation.  The fact that the client posted the review does not invoke the “self-defense” exception in Rule 1.6(c)(3).

I’ve included a digest of cases and advisory ethics opinions at the end of this post. For now, here’s an example of what not to do in response to a negative online review.

Many companies will not scrub (“take down”) a negative online review absent a court order. So, if Customer posts a negative online review about Restaurant on Yelp, Yelp might not take it down unless Restaurant secures a court order directing Yelp to do so.  Seems simple so far, right?

Well, here’s what’s happening: plaintiffs are suing “stooge defendants” to obtain fraudulent orders.  What’s that mean? It means this: Mike Kennedy posts a negative online review about Lawyer on Site.  Lawyer files suit against Mike Kennedy asking for an order directing removal of the post (or hires a reputation management company that offers “lawsuit removal services.”)  Then, Lawyer finds someone who pretends to be Mike Kennedy, accepts service, and stipulates to the judgment.  Lawyer delivers the order to Site, and Site removes the post.

It seems this has come to light as a result of the fact that most sites notify the real reviewer that his or her post is being scrubbed in response to the court order.  The real reviewer’s response: “what court order? I haven’t heard anything about that.” For more on the scheme, go HERE.

Anyhow, for you lawyers, if someone posts a negative online review about you, don’t respond by filing a lawsuit against a stooge defendant.  Don’t do it for clients who are the subject of negative reviews either.

Frankly, I think any lawyer who knowingly files lawsuits of this type effectively applies for induction into the Was That Wrong Hall of Fame. 

stooges

DIGEST

Disciplinary Cases

In re the Matter of David J. Steele, Ind. Supreme Court No. 49S00-1509-DI-527 (Ind. 2015) (among other violations, Indiana lawyer disbarred for, by his own description, “actively manipulate[ing his] Avvo reviews by monetarily incentivizing positive reviews, and punishing clients who wr[o]te negative reviews by publicly exposing confidential information about them.” Responses to the negative reviews included numerous false statements)

• People v. James C. Underhill Jr., 2015 WL 4944102 (Colo. 2015) (Colorado lawyer suspended for 18 months for, among other violations, disclosing confidential information in response to internet complaints about his fees and services)

• In the Matter of Tsamis, Ill. Att’y Registration and Disciplinary Comm’n, Comm’n No. 2013PR00095 (Ill. 2014) (Chicago lawyer reprimanded for revealing confidential information when responding to a negative review on the legal information website Avvo)

• In the Matter of Margrett A. Skinner, 295 Ga. 217, 758 S.E.2d 788 (Ga. 2014) (Georgia lawyer publicly reprimanded for improper disclosures in response to negative online review)

• In re Petition for Disciplinary Action Against Allison Wiles Maxim Carlson, Supreme Court A13-1091 (Minn. 2013) (Minnesota lawyer reprimanded for falsely posing as a former client of opposing counsel and posting a negative review about opposing counsel on a website. See also Petition for Disciplinary Action)

• In re Quillian, 20 DB Rptr 288 (Or. 2006) (Oregon lawyer suspended for 90 days for publishing confidential information about former client in listserv post)

Ethics Opinions

• Wash. St. B. Ass’n, Advisory Op. 2014-02 (2014) (lawyer who claims information on a website listing becomes responsible for ensuring that info in the list conforms to the RPC; lawyer must delete false or misleading comments or endorsements attached to lawyer’s profile; and lawyer may endorse another lawyer only if the endorsement is accurate)

• B. Ass’n of San Francisco, Ethics Op. 2014-1 (2014) (stating that while lawyers may respond to an online review, the duty of confidentiality still prevents any disclosure of confidential information without the client’s consent)

• Pa. B. Ass’n, Formal Op. 2014-200 (2014) (lawyer’s response to negative online must be proportional & constrained, and  must not reveal confidential information absent client consent. Negative review doesn’t trigger self-defense exception in Rule 1.6)

• N.Y. St. B. Ass’n, Op. 1032 (2014) (lawyer may not disclose confidential client information solely to respond to former client’s criticism of the lawyer posted on a lawyer-rating website)

  • New Hampshire Bar Association Ethics Committee, NH Bar News, February 2014 (Lawyer may make limited response, but not so detailed as to divulge confidential information).

• Los Angeles County B. Ass’n, Ethics Op. No. 525 (2012) (lawyer may publicly respond to comments published by a former client if (1) no confidential information is disclosed, (2) the response does not injure the former client in any matter involving the prior representation, and (3) the response is proportionate and restrained)

• S.C. B, Ethics Advisory Op. 09-10 (2010) (once lawyer claims website listing, information contained therein are subject to rules governing communication and advertising; lawyer may invite peer reviews and comments but such comments are governed by the RPC and the lawyer is responsible for the content)

Other Sources

• Joseph A. Corsmeier, Colorado Lawyer Suspended for 18 Months for Disclosing Confidential Information in Response to Client Internet Criticism, LAWYER ETHICS ALERT BLOGS (Aug. 28, 2015 4:02 PM), https://jcorsmeier.wordpress.com/category/lawyer-revealing-client-confidential-information-on-internet/

• Cassandra Burke Robertson, Online Reputation Management in Attorney Regulation, Social Science Research Network (May 1, 2015), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2611326## (forthcoming in the Georgetown J. of Legal Ethics)

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