The Risk Manager, Summer 2018
The problem for lawyers receiving vindictive and nasty reviews on Internet sites such as Lawyer Ratingz.com, Yelp.com, and RipoffReport is not new. What is new is the enormous increase in these reviews that once put on the Internet can pop up every time a potential client enters a lawyer’s name in a search request. Since the Internet is now the most used method of finding a lawyer, it is imperative that Kentucky lawyers be well versed on the ethics issues when deciding whether to reply to criticism on the Internet or to bring a defamation suit.
This much is known about responding to online criticism:
Lawyers may respond to criticism on the Internet, but must avoid revealing confidential information in violation of Kentucky Rule of Professional Conduct SCR 3.130 (1.6) Confidentiality of Information. So far the exception to Rule 1.6 permitting the revelation of confidential information to establish a claim or defense in a controversy the lawyer has with a client has not been allowed for online negative comments.
Defamation suits are an option to deal with online criticism, but lawyers are not often successful in these suits.
In the Pennsylvania Bar Association Legal Ethics and Professional Responsibility Committee Formal Opinion 2014-200, Lawyer’s Response To Client’s Negative Online Review, 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.”
In the ABA’s publication Legal Ethics and the Social Media, the authors Jacobowitz and Browning offer this best practice advice for responding to Internet criticism:
“First take a deep breath before lashing out. Then if you feel you must respond online, keep in mind that your reading audience is not just your disgruntled ex-client, but also an online readership of countless potential clients.”
“Do not under any circumstances reveal confidential information about the client or the matter you handled for the client.”
“Consider addressing your former client with a gracious apology or expression of regret for his or her dissatisfaction.”
The authors quote Josh King, the general counsel at Avvo, with this advice:
By posting a professional, meaningful response to negative commentary, an attorney sends a powerful message to any readers of that review. Done correctly, such a message communicates responsiveness, attention to feedback, and strength of character. The trick is to not act defensive, petty, or feel the need to directly refute what you perceive is wrong with the review.