Negative Online Reviews: it’s the story, not the law.

Technically, this post isn’t about a lawyer’s response to a former client’s negative online review.  I don’t want to spoil the ending, so, for now, I won’t explain the technicality.

Instead, I’ll get business out of the way and remind lawyers about the rules to consider when responding to negative online reviews.

Rule 1.9(c)(2) prohibits a lawyer from revealing information relating to the representation of a former client except as permitted by other rules.  The key “other rule” is Rule 1.6, the rule that prohibits a lawyer from disclosing information relating the representation of a current client.  While the rule contains several exceptions, none of them is “unless the client gives you a bad review.”

Yes, Rule 1.6(c)(3) allows a lawyer to disclose otherwise confidential information “to establish a claim or defense in a controversy between the lawyer and client . . . or to respond to allegations in any proceedings concerning the lawyer’s representation of the client.”  However, the case law and numerous ethics opinions make clear that a negative review is not a “controversy” or “proceeding” that triggers the so called “self-defense exception” in Rule 1.6(c)(3).

For more on the business end, I recommend this great piece by Cynthia Sharp that ran in the ABA Journal earlier this year.

So, with business out of the way, I’m reminded of my first day of law school.

It was August 1990, orientation at the George Washington University’s National Law Center.  Speaking to the 1Ls, the then dean, Jack Friedenthal, urged us never to lose the facts for the law.  Meaning, when reading the assigned cases, yes, learn the legal lessons, but not at the expense of missing the stories – whether dramatic, tragic, comic, or truly incredible — that landed the parties to court.  I don’t remember many legal lessons from my law school days, but I’ve never forgotten, and always been thankful for, Dean Friedenthal’s suggestion to focus on the stories.

Today, I came across this post by Professor Frisch on the Legal Profession Blog. It’s the story of the lawyer whose response to a negative online review resulted in the Oklahoma Supreme Court suspending the lawyer’s license for two years and a day.

In posts like this one, I typically just link to the disciplinary opinion.  Not today.  The story is too incredible.  Here goes!

Lawyer practiced law with his Brother.  They feuded, and the partnership dissolved.  Litigation followed, with the result including an order that the brothers disable their firm’s website, and each create their own.  So, Lawyer hired Consultant to build a website. Worried that Brother would post bad things about him online, Lawyer also agreed to pay Consultant to provide online reputation management services.

A few days later, Consultant suggested that Lawyer should conduct an internet search of himself.  Lawyer did.  Lo’ and behold, Lawyer found a post on Website that described Lawyer as a “criminal.”  Lawyer asked Consultant how to get the post taken down.  Consultant replied that he knew someone who could “de-index” the post, essentially shoving it further down the list of results of a search of Lawyer.  Lawyer agreed to pay for the de-indexing.

  • aside: if I’ve learned anything watching tv and movies, the “I know a guy” solution is rarely the best option.

Then, unbeknownst to Lawyer, Consultant commenced a form of DOS attack against Website and Website’s Attorneys. Consultant included emails indicating that the attack would stop only when Website took down the article that referred to Lawyer as a criminal. Consultant also threatened to launch a DOS attack against Website’s advertisers that would continue until the article was removed or the advertisers pulled their ads from Website.

Not wanting their client’s or their own servers to shut down, and not knowing who was behind the DOS attack, but realizing that it involved an article about Lawyer, Website’s Attorneys called Lawyer. Lawyer denied having any information that might help, and specifically denied having hired anyone for assistance with online reputation management. Then, when Website’s Attorneys told him they were turning the matter over to the FBI, Lawyer offered up a potential culprit.

Any guesses?

If you guessed “Consultant,”

The correct answer?

Brother!

That’s right, citing the partnership’s bitter breakup and ensuing litigation, Lawyer pinned Brother with motive. Then, when the conversation ended, Lawyer called Consultant and told to cease the DOS attack.  Nevertheless, Lawyer paid Consultant’s invoice for the, umm, service.

That’s not the end of the story.

A few months later, Lawyer made a startling discovery: it was Consultant who’d posted the article!  Consultant did so as part of a scheme to extort Lawyer.  So, Lawyer reported Consultant to the FBI.

That’s not the end of the story either.

The FBI investigation eventually revealed that Lawyer had withheld incriminating emails when making his report to the FBI.  In the end, Consultant and Lawyer were charged with federal crimes.  Lawyer pled guilty to being an accessory after the fact. Lawyer was sentenced to pay $430,500 in fines, restitution, and costs.  And, as I indicated above, Lawyer’s law license was suspended for 2 years and a day.  The opinion from the Oklahoma Supreme Court is here.

That’s the story.

Oh, and the legal lesson, be careful when responding to an online review.

Sometimes the story is far more interesting than the law.

Dean Friedenthal, you were right.  This one’s for you.

Additional Resources

My Blog Posts

Negative Online Review? How Not to Respond

Negative Online Review? Restrain Yourself!

Other Blog Posts

ABA Journal, How to ethically respond to negative reviews from clients, Cynthia Sharp

Responding to Negative Online Reviews, Catherine Reach, North Carolina Bar Association Center for Practice Management

Advisory Opinions

 North Carolina State Bar, Proposed Opinion 2020-1

New York State Bar Association Ethics Opinion 1032

The Bar Association of San Francisco, Ethics Opinion 2014-1

Los Angeles County Bar Association Ethics Opinion 525

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