The American Bar Association recently issued a formal opinion providing attorneys with helpful guidance regarding whether, and how, to respond to online criticism: Formal Ethics Opinion 496, Responding to Online Criticism (January 13, 2021).
The ABA opinion suggests that attorneys who are the subject of negative online reviews should think twice before firing off a response. The main ethical risk that an attorney faces in responding to a negative online review is disclosing confidential client information. ABA Model Rule 1.6 generally bars an attorney from disclosing information that relates to the representation of a client. Similarly, attorneys may not make disclosures that could reasonably lead to the discovery of confidential information by a third party.
Rule 1.6(b)(5) provides, in part, that an attorney may disclose 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.” In its recent opinion, the ABA concluded that online criticism does not involve a “proceeding,” and that a negative online review, because of its informal nature, is not a “controversy between the lawyer and the client.” The ABA further determined that an attorney need not make a public response to online criticism in order to “establish a claim or defense,” thereby falling outside of the exception, which applies “only to the extent the lawyer reasonably believes [] is necessary.” In sum, according to the ABA, an attorney is prohibited from revealing confidential information in responding to a negative online review.
Opinion 496 highlights six best practices for attorneys who are the subject of negative online reviews:
- An attorney may request that the host of the website or search engine remove the post. If the post was made by someone pretending to be a client, the attorney may inform the host of the website of that fact. In making a request to remove the post, the attorney may not disclose any information that relates to a client’s representation or that could reasonably lead to the discovery of confidential information by another. However, in making a request for the website to remove the post, the attorney is permitted to state that the post is inaccurate or that the attorney has not represented the poster.
- Not respond. The Committee noted that any response will usually cause further responses from the original poster and add more visibility to the negative review. On the other hand, not responding may reduce the visibility of the post by causing the post to fall further down in the search result rankings.
- An attorney may respond with an invitation to the client to contact the attorney privately to resolve the matter. This approach will not be effective unless the attorney has the intent and ability to make an effort to ameliorate the former client’s concerns.
- If the poster is not a client or former client, the attorney may respond by stating that the person posting is not a client or former client because the attorney owes no ethical duties to the poster in that scenario. However, if the negative online post is by a former opposing party or opposing counsel, or a friend or relative of a current or former client, and relates to an actual representation, the attorney may not disclose any information relating to the client or former client’s representation without the client or former client’s informed consent. In this situation, in addition to receiving the client or former client’s informed consent to respond, the attorney should also discuss the proposed content of the response with the client or former client.
- If the online criticism is by a client or former client, the attorney may respond online directly to the client or former client. However, the attorney may wish to consult with ethics or risk management counsel before doing so, and must remember not to disclose any information relating to the client’s representation online.
- If the online review is by a client or former client, an attorney may respond by acknowledging that the attorney’s professional obligations do not permit the attorney to respond to the post.
Although it may be tempting to respond to an online post when the opinion posted reflects negatively on the attorney’s reputation, is inaccurate, or even completely untrue, attorneys confronted with negative online reviews should consider not responding to the post at all. Or, if the attorney chooses to respond, heed the ABA’s guidance to help ensure that the attorney does not run afoul of their ethical obligations. Attorneys 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 others. Further suggestion on language for such a post can be found in Erin Higgins’ Massachusetts Lawyers Weekly article, “Can lawyers respond to negative online reviews?” which was published on April 8, 2019.
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