Negative Online Review? Restrain Yourself.

A few weeks ago, a lawyer called me for guidance on how to respond to a negative online review.  It’s not an inquiry I receive often, but it’s a topic that warrants a reminder. Also, the call was timely in that the North Carolina State Bar recently issued an advisory opinion that’s on point.

More on the nuts & bolts of the legal ethics issues in a moment.  I’ll start with a practical observation.

I was struck by how upset the lawyer was to have discovered the negative online review. I get it: none of us enjoys having our work trashed, especially by someone who we feel omitted key information in trashing it.  But remember: a negative online review is not the end of the world.

Most everyone reading this post has shopped online.  Did the product you bought have only positive reviews?  Since the new year, and before the coronavirus pandemic, many of you likely went out to eat.  Odds are that the restaurants you frequented had more than one negative review on Yelp.  Finally, I’m willing to bet that, before the internet, every single lawyer had at least one unhappy client who bad-mouthed their services afterwards.  While the ease with which lawyers now learn about negative online reviews is a function of modern technology, unhappy clients are nothing new.

My point is that you can’t make all clients happy all the time.  However, while you can’t control the unhappy clients, you can certainly control your response to their unhappiness.

Personally, when reviewing hotels or restaurants, I appreciate the proprietor who responds with a simple “we regret your experience, please contact us.”  I do not appreciate the “the food wouldn’t have been cold if you’d have eaten it as soon it was served instead of having 3 more beers.”

Enough of my soapbox.

Generally, Rule 1.9(c) prohibits lawyers from revealing or disclosing information relating to the representation of a former client. There’s an exception for any revelation or disclosure otherwise authorized by Rule 1.6, the confidentiality rule for current clients.  Rule 1.6 includes the so-called “self-defense” exception to confidentiality.

The self-defense exception permits a lawyer to disclose otherwise confidential information:

1. “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client;” or,
2. “to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved;” or,
3. “to respond to allegations in any proceeding concerning the lawyer’s representation of the client.”

I’ll give it to you straight, no chaser: a negative online review doesn’t fall within any of the exceptions.  For those of you that need more than my word, I don’t blame you.

In January, the North Carolina State Bar proposed this advisory opinion.  Citing the NC rule that is the same as Vermont’s, the opinion concludes:

• “Thus, the self-defense exception applies to legal claims and disciplinary charges arising in civil, criminal, disciplinary or other proceedings. A negative online review does not fall within these categories and, therefore, does not trigger the self-defense exception.”

As far as I’m aware, no bar association or court has concluded otherwise.

The North Carolina opinion includes a helpful summary of opinions from other bar associations. I won’t regurgitate them here.  However, harkening back to my earlier point, I will share two sentences from New York State Bar Association Ethics Opinion 1032:

• “Unflattering 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.  We do not believe that [the rule] should be interpreted in a manner that could chill such discussion.”

In short, a negative online review does not operate as a client’s waiver or consent that the lawyer may disclose otherwise confidential information.

So, what can a lawyer post in response? Again, being risk averse and appreciating politeness, I’d not post much, if anything.  But some people can’t help themselves.  So, let’s look again at the NC opinion.

It concludes that an attorney “may post an online response to the former client’s negative online review provided the response is proportional and restrained and does not contain any confidential client information.”   As an example, it cites Pennsylvania Bar Association Ethics Opinion 2014-200 which suggests the following response:

• “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.”

Even that gives me pause.  But, as the North Carolina opinion points out, most to address the issue have concluded that a lawyer does not violate the rules by denying the merit of the client’s assertions.

Okay.  This post is officially too long.  So, I’ll leave you with this.

Catherine Sanders Reach is the Director of the Center for Practice Management at the North Carolina State Bar Association.  Last month, Catherine posted Responding to Negative Online Reviews.  It’s a fantastic resource that I highly recommend.

Or, you can remember a lesson my dad taught me (via Thomas Edison) that I’ve often used on client confidences:

• “You will have many opportunities in life to keep your mouth shut: You should take advantage of every one of them.”

 

Blogger’s Note: this picture is more than a year old.  As I blog today, I’m at home, doing my part. I am not at my office and I’m not touching my face.