Aug. 20, 2014 – This month’s Ethical Dilemmas question focuses on what lawyers can do when negative comments, true or untrue, are posted to electronic review sites, like Avvo.
Have an Ethical Dilemma?
Ethical dilemmas affect every lawyer’s practice. This series of questions and answers appears each month in InsideTrack. The answers, offered by the State Bar’s ethics counsel Timothy Pierce and assistant ethics counsel Aviva Kaiser, are intended to provide guidance only and are not legal authority. Each situation will depend on the facts and circumstances involved.
Question
A former client just posted a scathing review about me on the lawyer review site, Avvo. The former client claimed that I failed to appear at a crucial hearing and that I charged her more than twice the fee we agreed upon. Both of these claims are untrue, and I have the documentation to prove it. A review like this could ruin my reputation. Can I defend myself?
Answer
“Defending one’s professional reputation is not among the permitted exceptions to the confidentiality rule.”1 SCR 20:1.6 prohibits lawyers who do not have the client’s informed consent from revealing “information relating to the representation of a client”2 with certain limited exceptions. Among these exceptions is the self-defense exception, SCR 20:1.6(c)(4). That exception permits, but does not require, a lawyer to reveal information to the extent reasonably necessary in the following circumstances:
- 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.
ABA Comment [10] to SCR 20:1.6 makes clear that the self-defense exception is limited to “a civil, criminal, disciplinary or other proceeding.”3 Although a lawyer may genuinely disagree with statements that a client has made online about the lawyer’s conduct or representation of the client, that disagreement does not constitute a controversy within the meaning of SCR 20:1.6(c)(4) and does not authorize the lawyer to disclose information relating to the representation of the client in response to the negative online review.
“A lawyer may, however, respond online to the negative review as long as the response does not disclose any information relating to the representation of the client, does not injure the client in any matter involving the prior representation, and is proportionate and restrained.” – Los Angeles County Bar Association Ethics Opinion 525 (December 2012)
The same conclusion was reached by the Pennsylvania Bar Association Legal Ethics and Professional Responsibility Committee in Formal Ethics Opinion 2014-200 (July 8, 2014). Although the opinion recognized the increasing importance of online rating services, it concluded that a lawyer cannot disclose information relating to the representation of the client in response to a negative online review without the client’s consent. Moreover, both the Georgia Supreme Court and the Illinois Lawyer Registration and Disciplinary Commission have publicly reprimanded lawyers for posting information about former clients on the Internet in response to negative reviews.4
A lawyer may, however, respond online to the negative review as long as the response does not disclose any information relating to the representation of the client, does not injure the client in any matter involving the prior representation, and is proportionate and restrained.5
The Pennsylvania Ethics Opinion offered the following sample language: “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.” The lawyer should also consider, as a practical matter, whether a response calls more attention to the review.
Endnotes
1 In the Matter of Disciplinary Proceedings Against Peter J. Thompson, 2014 WI 25 at ¶ 44.
2 “Information relating to the representation of a client” is very broad and extends to all information regardless of its source. It also includes client identity. The duty of confidentiality owed to former clients under SCR 20:1.9(c)(2) is the same as the duty owned to current clients under SCR 20:1.6.
3 ABA Comment [10] states:
Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client's conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person, for example, a person claiming to have been defrauded by the lawyer and client acting together. The lawyer's right to respond arises when an assertion of such complicity has been made. Paragraph (b)(5) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion. The right to defend also applies, of course, where a proceeding has been commenced.
4 In re Skinner, 295 Ga. 217, 785 S.E.2d 788 (2014); In re Tsamis, Commission File No. 2013PR00095 (Ill. 2013). While no Wisconsin case addresses responding to negative online reviews, the Wisconsin Supreme Court suspended a lawyer who wrote and published an internet blog in which the lawyer revealed information relating to the representation of current and former clients that was sufficiently detailed to permit readers to identify the clients by using public sources. In re Disciplinary Proceedings Against Peshek, 2011 WI 47, 334 Wis. 2d 373, 798 N.W.2d 879 (2011).
5 Los Angeles County Bar Association Ethics Opinion 525 (December 2012).
