Whether here or at CLEs, I’ve often mentioned the perils of responding to a former client’s negative online review. As reported by the ABA Journal and Legal Profession Blog, here’s another example of what not to do.
Last week, the New Jersey Supreme Court suspended a lawyer for 1-year for violating several rules, including the Garden State’s rule that prohibits a lawyer from using information relating to the representation to a former client’s disadvantage unless the information has become “generally known.” The underlying decision of the Disciplinary Review Board is here.
Now, the sanction resulted from multiple violations committed while representing multiple clients. In other words, the lawyer’s response to the negative online review wasn’t the sole basis for the 1-year suspension. Still, the opinion serves as important reminder that, whether you agree with the rule or the interpretation thereof, it is well-established that information that is “public record” is not necessarily “generally known.”
Before I share the facts of the NJ case, let’s look at Vermont’s rule. It’s V.R.Pr.C. 1.9(c)(1):
“(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client, or when the information has become generally known.” (emphasis added).
As reported by the ABA Journal, the New Jersey lawyer “had won unsupervised visitation for the client after she took her children to another state without authorization, ‘seemingly, a good result,’ according to the review board.” Nevertheless, the client posted a negative online review regarding the lawyer’s services.
The client owns a massage therapy business. Miffed at the review the client had left for him, the lawyer posted the following Yelp review of the client’s business:
- “Well, [client] is a convicted felon for fleeing the state with children. A wonderful parent. Additionally, she has been convicted of shoplifting from a supermarket. Hide your wallets well during a massage. Oops, almost forgot about the DWI conviction. Well, maybe a couple of beers during the massage would be nice.”
In response to the subsequent ethics complaint, the lawyer wrote:
- “As to the Yelp rating about [client’s] massage therapy business, I admit to same. I was very upset by [her] Yelp rating of my practice. This rating was made more
than a year and a half after the conclusion of my representation. My disclosures, i.e. her arrests, were public information and I did not violate attorney client
privilege. My position was that what was good for the goose was good for the gander. I do concede that I do not believe that the rating was my finest moment.
However, it was not unethical. That posting has subsequently been taken down.”
Long story short, the Disciplinary Review Board disagreed that it wasn’t a violation. Citing to ABA Formal Opinion 479 and a few court decisions, the Board concluded that the lawyer’s review of the former client’s business violated the rules because the information, “although publicly available, was not generally known.”
As I’ve said before, and as my dad told me as a kid, when it comes to client confidences, lawyers would be well-served to remember this quote:
“You will have many opportunities
to keep your mouth shut.
You should take advantage
of every one of them.”
- Negative Online Review? Restrain Yourself
- Hey Lawyers: STFU!!
- ABA & Client Confidences: It’s Deja Vu All Over Again
- Can’t Keep Quiet? Try Harder