Negative Online Reviews

ABA Issues Guidance on Responding to Online Criticism

Michael 1 Comment

I haven’t blogged since before Christmas. Alas, like tragic ancient romances, all good things must come to an end.

I’m going to ease back into it with a topic familiar to regular readers: a lawyer’s duties when responding to online criticism.  It’s an issue I’ve discussed often.  Links to my prior posts are below.  Here’s the nutshell version:

  • when considering if or how to respond to a negative review, a lawyer should be as careful as Elmer Fudd was quiet when hunting rabbits: very, very.

Yesterday, the ABA’s Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 496: Responding to Online Criticism.  I like the opinion and urge you to read it.  Here are my thoughts.

In Vermont, Rule 1.6 prohibits a lawyer from disclosing information relating to the representation of client.  Our rule on former clients, Rule 1.9, incorporates Rule 1.6 by reference.

There are exceptions to the general prohibition. Of the exceptions, the so-called “self-defense” exception is most often cited as permitting a lawyer to disclose other confidential information in response to a negative review.  As I’ve long pointed out, it doesn’t.

In Vermont, the “self-defense” exception appears in Rule 1.6(c)(3).  It permits a lawyer to disclose information relating to the representation:

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

As ABA Opinion 496 further makes clear, a negative review is not “a controversy” or “proceeding” that triggers the “self-defense” exception.

In short, “my client criticized me online” does not fall within the exceptions to the general prohibition on disclosure.

Finally, while I haven’t received many inquires about how to respond to online reviews, those I’ve received consistently include the lawyer saying something like “the client’s post waives the privilege, so I can respond, right?”

Hold up!!

Your ethical obligation is not to disclose information relating to the representation of a client or former client.  The obligation encompasses all information relating to the representation, no matter the source.  As such, it is much broader than the attorney-client privilege.

In addition, the privilege is asserted in response to demands that compel production of confidential information.  For example, discovery requests or a request to testify under oath.  Whether a client’s online review constitutes a waiver of an evidentiary privilege is for a court to decide. It is not for the lawyer to decide in posting a reply.  Or, as the committee notes at the very beginning of its analysis in Formal Opinion 496:

  • “[t]he scope of the attorney-client privilege, as opposed to confidentiality, is a legal question that this Committee will not address in this opinion.”

So, what can a lawyer do when criticized online? Opinion 496 includes guidance.  From the summary:

  • “As a best practice, lawyers should consider not responding to a negative post or review, because doing so may draw more attention to it and invite further response from an already unhappy critic. Lawyers may request that the website or search engine host remove the information. Lawyers who choose to respond online must not disclose information that relates to a client matter, or that could reasonably lead to the discovery of confidential information by another, in the response. Lawyers may post an invitation to contact the lawyer privately to resolve the matter. Another permissible online response would be to indicate that professional considerations preclude a response.”

Negative online reviews will happen.  Fight the urge! Think and long & hard before you respond.

1.6

RELATED MATERIAL

 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 (friend of this blog)

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

 

 

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

Michael 1 Comment

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

Negative Online Review? How not to respond.

Michael 2 Comments

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.”
—Thomas Edison—

Be Quiet

Related Posts

 

 

 

 

 

 

 

Tips for Online Reputation Management

Michael

Online Reputation Management is a thing.  An important thing.  But not so important that the Rules of Professional Conduct go out the window when a lawyer manages her online reputation.

Rule 1.6 prohibits a lawyer from disclosing information relating to the representation of client.  The rule is much broader than the attorney-client privilege and applies to all information relating to the representation no matter the source.

There are exceptions to the rule.  They are:

  • the client’s gives informed consent to the disclosure;
  • disclosure is impliedly necessary to carry out the representation;
  • disclosure is mandated by Rule 1.6(b);
  • disclosure is permitted by Rule 1.6(c).

Rule 1.6(c)(3) permits a lawyer to disclose information related to the representation of client:

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

As I’ve previously blogged, a negative online review is not a “controversy between the lawyer and the client” that triggers the exception.  Neither is a negative online review a “proceeding” in which allegations have been made against the lawyer. My blog posts, which includes advisory opinions & disciplinary decisions, are here:

As the headlines suggest, the posts focus on what not to do.  For instance, don’t reveal client confidences in response to an online review.  Don’t post fake positive reviews.  Don’t create a fictitious lawsuit in order to get a court to order a website provider to take down a negative review.

Today’s ABA Journal has some great tips related to online clients reviews.  They appear in Kelly Newcomb’s post How lawyers can make positive – and negative – online reviews work for them.  

Whether on AirBnB, Yelp, Amazon, or myriad other sites, I suspect many lawyers have read through the reviews before making a purchase or reservation.  Odds are, potential clients are doing the same before hiring you.  Today’s post in the ABA Journal helps to frame not only a lawyer’s professional obligations when dealing with online reviews, but the marketing benefits that come with knowing how best to manage an online reputation.

See the source image    Image result for images of yelp     Image result for images of amazon

Monday Morning Answers: #119

Michael

Welcome to Monday!

Friday’s questions are here.  The answers follow today’s honor roll.

Honor Roll

Answers

Question 1

Lawyer used to represent Client.   Per the Rules of Professional Conduct, which situation is different from the others?

  • A.  Client files disciplinary complaint against Lawyer.
  • B.  Client sues Lawyer for malpractice.
  • C.  Client posts negative online review about Lawyer.
  • D.  Client files petition for post-conviction relief alleging that Lawyer failed to provide effective assistance of counsel.

Rule 1.6(c)(3) permits but does not require lawyers to disclose otherwise confidential information “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client . . . [or] to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” Per Comment [12], the rule can “arise in a civil, criminal, disciplinary, or other proceeding.”

A, B, and D are “controversies” or “proceedings” that trigger the rule. At the end of this post you’ll see a digest of cases & opinions that make clear that a negative online review is not a “controversy” or “proceeding” for the purposes of the rule.  

Caveat: any disclosure made pursuant to the rule should be limited to respond only to the specific controversy or allegation, and, if made in court, should include reasonable efforts to limit access to the information to people who need to know. Comment [14].

Finally, as noted by ABA Formal Opinion 10-456, a criminal defense lawyer should raise, or give the former client an opportunity to raise, all non-frivolous arguments against waiving the attorney-client privilege.

Question 2

Lawyer called me with an inquiry. I listened, then replied:  “I disagree. I wouldn’t call without permission. The rule applies to ‘matters’  Litigation doesn’t have to be pending for there to be a ‘matter.’ ”

What rule? (the topic of the rule is fine)

Communicating with a represented person.  See, Rule 4.2.

Question 3

Per the rule, an attorney shall not “prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless __________”

  • A.    The attorney or recipient is related to the client.  Rule 1.8(c).  Comment [7] suggests that a non-relative cannot waive the protection of this rule.
  • B.     The client gives informed consent
  • C.     The client gives informed consent, confirmed in writing
  • D.    The client is given a reasonable opportunity to seek independent legal advice

Question 4

If you go to one of my seminars and hear me babbling about stuff that’s “onsite, online, and air-gap,” it’s most likely that I’m talking about:

  • A.  Trust accounting software
  • B.  The duty to safeguard electronically stored client information.  See: Ransomware & Cybersecurity Insurance
  • C.  Software that assists with conflict checks
  • D.  The duty of competence insofar as it relates to online legal research

Question 5

Speaking of frivolous claims . . .

Lionel Hutz is a fictional lawyer.  On behalf of a client, he sued The Frying Dutchman restaurant over its “All You Can Eat” offer.  Hutz referred to the offer as “the most blatant case of fraudulent advertising since my suit against the film The Never Ending Story.”

In another episode, the same client retains Hutz as a result of Hutz’s slogan “Cases won in 30 minutes or your pizza is free.”  Thinking he lost the case, Hutz gave the client and the client’s family a box of pizza.  The client’s wife pointed out that they won the case. Hutz responded that the pizza box was empty anyway.

How’d Hutz get a law license? I don’t know. But I do know that he claimed “I’ve attended Harvard, Yale, MIT, Oxford, the Sorbonne, and the Louvre.”

You might know the actor who voiced Hutz better for his roles on Saturday Night Liveand NewsRadio.

Name the client.

Homer Simpson

See the source image

 

Opening Day & Monday Morning Answers

Michael

Yes, it’s Monday.

But, the sun is shining, most of the snow has melted, and it’s Opening Day at Fenway.  I’m curious: are any of you Sox fans mildly surprised that Porcello gets the start over Sale?

Two more housekeeping matters before I get to the Honor Roll & Answers.  First, in case you missed it Saturday morning, here’s my post on the new rule in North Carolina that extends the duty to disclose exculpatory information to all lawyers.  Second, if you want to read Friday’s questions before you see the answers, they’re here.

Oh – a third thing.  In the bracket-style pool that I entered, I have Gonzaga defeating North Carolina in the title game. Unfortunately, the other two teams I had in the Final Four were Lousiville & Wisconsin.

HONOR ROLL

Question 1

The Vermont Supreme Court has described a particular rule as “prophylactic.”  The Court used the word, in part, due to what it termed as the “Hobson’s Choice” that would arise if:

  • A. A client had to disclose a confidence in order to protect it
  • B. A criminal defendant had to take a plea to avoid going to trial with ineffective& incompetent counsel
  • C. A client had to pay an unreasonable fee in order for disciplinary counsel to have grounds to prosecute the lawyer for charging  an unreasonable fee

In the context of former-client conflicts that arise under Rule 1.9, lawyers often say “but I don’t remember anything about the case.” It doesn’t matter. If the old case is the same as or substantially related to the new case, the Court will presume that confidences were shared. Otherwise, former clients will face of Hobson’s Choice of having to disclose confidences in order to protect them.

Question 2

Lawyer represents Client. Lawyer reasonably believes that Client will offer false testimony. However, the rules prohibits Lawyer from refusing to offer the evidence.

Question 3

What do these rules have in common?

  • A. The rule requiring zealous representation
  • B. The rule requiring lawyers to maintain copies of ads for 2 years
  • C. The rule prohibiting the appearance of impropriety
  • D. The rule prohibiting conduct that adversely reflects on a lawyer’s fitness to practice law

They no longer exist.  Each has been repealed or replaced.

Question 4

The “self-defense” exception to Rule 1.6 is often discussed with respect to:

  • A.    Disclosing a client’s intent to commit a crime
  • B.    Disclosing a misrepresentation that a client made to the court
  • C.    Responding to a client’s negative online review
  • D.    Withdrawing upon discovery of a conflict that was not apparent at the outset of the representation

The so-called “self-defense” exception is Rule 1.6(c)(3). It allows a lawyer to disclose otherwise protected information:

  • to establish a claim or defense in a controversy between the lawyer & client; or
  • to establish a defense to a criminal charge or civil claim regarding the lawyer’s conduct in which the client was involved; or
  • to respond to allegations in any proceeding involving the lawyer’s representation of the client.

Numerous authorities have held that the exception DOES NOT apply to negative online reviews.  

  • 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)

Question 5

Name the iconic musician/songwriter whose lyrics are cited more often in U.S. judicial opinions than any other musician.  Chief Justice Roberts and former Justice Scalia are among the scores of judges who have cited to the songwriter.

I never got into him, but found it to be an interesting bit of trivia. The answer is Bob Dylan.  The ABA Journal has it in this post.

Red Sox

Negative Online Review? More of What NOT to do.

Michael 1 Comment

Many of you have heard at least one of the four versions of Adam Sandler’s The Chanukah Song.  In a way, the ethics issues associated with negative online reviews remind me of some of the lyrics in versions 2, 3, and 4.

I first blogged on the topic here: Negative Online Review? What NOT to do.  I followed it up with Negative Online Review? Update!

Well, there’s more to pass on.  So, channeling my inner Sandler, here’s how I’ll start:

“When you feel like the only kid in town, with a bad online review,  here’s a NEW thing, that . . . you . . . should . . . .not doooooo……… ”

The story comes courtesy of the ABA Journal and is here.

In short, a law firm’s former client posted negative online reviews to Yelp and Facebook.  The firm sued the client for libel. A judge dismissed the suit and ordered the firm to pay $27,000 in legal fees to the former client.

By the way, my favorite is the live version of Part 2.

sandler