The Risk Manager, Fall 2014
The Internet and social media continue to bombard the legal profession with novel ways to run afoul of ethics rules. Former client reviews of lawyer services on the Internet are accelerating at a rapid rate and many of them are just plain nasty. It is tough after doing what you know was a competent and professional job for a client, even though the results were disappointing, to run into what one commentator calls the “Internet Hate Machine.” Should you just leave the review laying out there for all to see – or should you post a spirited defense? In the absence of Kentucky authority, this article provides an overview of how other jurisdictions are dealing with this issue.
The leading ethics opinion on this question is the Pennsylvania Bar Association Legal Ethics and Professional Responsibility Committee Formal Opinion 2014-200, Lawyer’s Response To Client’s Negative Online Review. This opinion provides a comprehensive consideration of the client confidentiality ethics rule with a good review of opinions from other states. It includes these disciplinary actions to demonstrate how lawyers have gotten in trouble over client confidentiality in their online responses:
- In December 2006, the Supreme Court of Oregon approved a stipulation for discipline suspending a lawyer for 90 days for sending an email message to members of a bar listserv in which the lawyer disclosed confidential information about a former client who had fired the lawyer in an effort to warn colleagues that the former client was “attorney shopping.” In re Quillinan, 20 DB Rptr 288 (Or. 2006).
- The Supreme Court of Wisconsin, in June 2011, suspended the license of a lawyer who wrote and published an Internet blog in which the lawyer revealed confidential information about current and former clients that was sufficiently detailed to identify those clients using public sources. Office of Lawyer Regulation v. Peshek, 798 N.W.2d 879 (Wis. 2011).
- The Georgia Supreme Court in a March 2013 ruling rejected as inadequate a recommendation of the Georgia State Bar General Counsel seeking a review panel reprimand for lawyer for violating Rule 1.6. The lawyer admitted to posting on the Internet confidential information about the lawyer’s former client in response to negative reviews about the lawyer the client had posted on consumer websites. In re Skinner, 740 S.E.2d 171 (Ga. 2013).
- A Chicago lawyer was reprimanded by the Illinois Lawyer Registration and Disciplinary Commission for revealing client communications response to a former client who posted a negative review of the lawyer on Avvo. The parties’ stipulated that the lawyer exceeded what was necessary to respond to the client’s accusations by revealing in her response to a negative review that the client had beaten up a co-worker. In re Tsamis, Commission File No. 2013PR00095 (Ill. 2013).
The Committee considered whether lawyer responses to social media criticism fit the self-defense exceptions to Rule 1.6 Confidentiality of Information.
- May a lawyer reveal confidential information in a response based on the need to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client?
- The Committee found that “Although a genuine disagreement might exist between the lawyer and the client, such a disagreement [social media criticism] does not constitute a ‘controversy’ in the sense contemplated by the rules to permit disclosures necessary to establish a ‘claim or defense.’”
- Does the right to defend before an action is commenced exception allow disclosure of confidential information in responding to social media criticism?
- Citing ABA Formal Opinion 10-456 and other authority, the Committee decided that social media criticism does not mean that a proceeding is pending or imminent within the intent of the self-defense exception to Rule 1.6.
The Committee concluded:
- While it is understandable that a lawyer would want to respond to a client’s negative online review about the lawyer’s representation, the lawyer’s responsibilities to keep confidential all information relating to the representation of a client, even an ungrateful client, must constrain the lawyer.
- A lawyer cannot reveal client confidential information in response to a negative online review without the client’s informed consent.
- Any decision to respond should be guided by the practical consideration of whether a response calls more attention to the review.
- Any response should be proportional and restrained. For example, a response could be:
“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.”
We conclude this article with a suggestion. Before you hit the send button on a response to social media criticism think upon this old adage: Never wrestle with a pig You both get dirty Nobody wins, and The pig likes it!