July 19, 2023 – Social media is now a prevalent means for people to comment about goods and services they have purchased. Lawyers, just as with other professionals, can be the target of online criticism. So​ how may a lawyer respond, especially when a reviewer’s claims are not true?

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

This was the question addressed in a previous column, and the reason it is being posed again in today’s column is that Wisconsin has now joined the states that have issued ethics opinions outlining lawyer’s responsibilities when responding to online criticism.

Wisconsin Formal Ethics Opinion EF-23-01 reaches the same conclusion that other jurisdictions have reached, in noting that Wisconsin’s disciplinary rules, like the ABA Model Rules on which they are based, do not permit lawyers to disclose information relating to the representation of a current or former client in response to online criticism.

The opinion begins by discussing the scope of the duty of confidentiality found in SCR 20:1.6 and noting several exceptions to that duty.

The most relevant exception is the “self-defense” exception found in SCR 20:1.6(c)(4). As in other states whose Rule 1.6 is based on the ABA Model Rule 1.6, the self-defense exception does not permit a response that discloses any information that relates to the representation of a current or former client because online criticism is not a “controversy” as that term is used in the rule:

For several reasons, the committee believes the term “controversy” should not be interpreted to include informal disagreements reflected in online criticisms. First, lawyers’ relationships with clients are often contentious and involve disagreements about matters large and small. This is not surprising; lawyers frequently deal with the most difficult of human experiences. To view any disagreement between a lawyer and client as a “controversy” which makes it necessary for the lawyer to disclose protected information would significantly diminish client protections. Such a view cannot be reconciled with the important role of confidentiality in the representation of clients.

Second, lawyer responses to online criticism are likely to be critical of the author. If that person is or was a client, as is often the case, allowing disclosure of negative information about the client would violate SCR 20:1.8(b), which cautions without exception that “[a] lawyer shall not use information relating to representation of a client to the disadvantage of the client …”

Third, a response in kind to online criticism is unlikely to be necessary to serve any of the purposes underlying the exceptions to the duty of confidentiality. ABA Rule 1.6 cmt [16]. If the lawyer is faced with formal accusations their response will typically be a written answer or denial, not an online posting. And, if the criticism is not connected to any type of formal complaint the lawyer will have a variety of options that do not require public disclosure of protected information on social media.

Fourth, limiting the interpretation of controversies to formal disagreements is consistent with the other exceptions outlined in SCR 20:1.6(c)(4).

(footnote omitted)

Because neither the self-defense nor any other exception applies, a lawyer is not free to disclose information relating to the representation in response to online criticism.

Also, the fact that the online criticism may disclose information relating to the representation of a current or former client does not mean that a lawyer may respond by using information already disclosed by the poster. This is because, as detailed in the opinion, there is no waiver of the protections of SCR 20:1.6, and the fact that information has been publicly disclosed does not mean the information loses its protected status.

This applies whether the criticism is posted by a current or former client or a third party.

You Do Have Options

The fact that a lawyer is prohibited from disclosing information relating to the representation of a current or former client greatly limits what a lawyer may do in response to online criticism, but a lawyer does have options:

ABA Formal Ethics Opinion 496 makes several suggestions as to what a lawyer may do. The lawyer may ask the website or search engine to remove the post. The lawyer may contact the person who posted the criticism and seek to resolve the issue outside public view, including by asking the person to seek to remove or correct the post. The lawyer may also choose to simply ignore the criticism, understanding that most online postings lose their relevance quickly. In addition, experience teaches that one response can result in others, which may only make the parties’ positions more intractable and the dispute more visible.

If the lawyer believes a response is necessary, the committee suggests the following:

I do not believe the [post/comments] are fair or accurate. Professional obligations prevent me from commenting further.

If the criticism is from a person who is not nor has ever been a client of the lawyer, the lawyer may note that fact.

(footnote omitted)

The conclusions reached in this opinion are the same as those reached by the overwhelming majority of ethics opinions and disciplinary decisions on this topic – and EF-23-01 details why the disciplinary rules compel these conclusions.

While the opinion does not, in a way, create new law (as it offers essentially the same guidance as opinions from other states), it does provide clear guidance to Wisconsin lawyers based explicitly on Wisconsin’s rules.