Walking the Tightrope: Responding to a Client's Online Criticism
It happens more and more. A client posts a highly critical online review of legal services you provided. What can you do to protect your reputation and your business? What standards govern your actions?
Two State Bar Association Ethics Opinions, from New York and Pennsylvania, have addressed this precise issue:
- New York State Bar Association Committee on Professional Ethics Opinion 1032, Responding to a former client's critical commentary on a website (October 30, 2014)
- Pa. Bar Assoc. Formal Op. 2014-300, Ethical Obligations for Attorneys Using Social Media, 2014
In the situation presented to the New York State Bar, a disgruntled former client of a New York law firm blasted the firm's representation on a lawyer review website. The former client stated on the website that he/she regretted retaining the firm, the firm provided inadequate services, the firm inadequately communicated with client, and the firm did not achieve the client's goals. The former client's posting did not say anything about the merits of the underlying legal matter and did not reference any particular communications with the firm or other such confidential information. The former client had not filed or threatened to file civil or disciplinary action against the firm.
Not surprisingly, the firm strongly disagreed with the former client's comments about its services and the outcome of the legal matter. The firm wanted to respond to the former client's negative posting "by telling its side of the story." Before doing that, though, the firm contacted the New York State Bar Association Committee on Professional Responsibility to find out if a response would be consistent with its continuing duties to preserve a former client's confidential information.
In Opinion 1032, the committee analyzed the issue under Rules 1.6 and 1.9 of the Rules of Professional Conduct, which generally prohibit a lawyer from revealing confidential information of a former client. There is a "self-defense" exception provided in Rule 1.6 and incorporated into Rule 1.9 for former clients, in many states, including New York (but not California). New York's Rule 1.6(b)(5)(i) states that a lawyer "may reveal or use confidential information to the extent that the lawyer reasonably believes necessary . . . to defend the lawyer or the lawyer's employees and associates against an accusation of wrongful conduct." When applicable, this exception permits disclosure of confidential information to the extent the lawyer reasonably believes is necessary to serve the purpose of self-defense. See New York Rule 1.6, Cmts.  & .
The committee focused on the word "accusation," defined by Black's Law Dictionary as "[a] formal charge against a person, to the effect that he is guilty of a punishable offense[,]" and in Webster's dictionary as a "charge of wrongdoing, delinquency, or fault." The committee also looked to Comment 10 of Rule 1.6, which uses the words "claim" and "charge" and further analyzed New York cases and disciplinary proceedings. It reasoned that the exception does not apply to informal complaints when there is no actual, or even threatened, proceeding such as the website posting at issue. Therefore, the committee concluded that client confidences cannot be disclosed by a lawyer solely to respond to a former client's criticisms of the attorney on a website that includes client reviews of lawyers.
Perhaps to invite further issues, the opinion claims that "it does not unduly restrict the self-defense exception" because the commencement of a formal proceeding is not necessarily required to trigger the authorized disclosure under Rule 1.6(b)(5)(i), stating: "There may be circumstances in which the material threat of a proceeding would give rise to that right." The committee did not more directly address that question because it was not the subject of the inquiry. It further did not consider whether and when a negative website posting may effect a waiver of a client's right to confidentiality under Rule 1.6(a) because this was not the case in the inquiry presented and because waiver of attorney-client privilege turns on questions of law beyond the committee's jurisdiction.
The Pennsylvania Bar Association addressed several social-media-related ethical issues in its Formal Opinion 2014-300, including whether attorneys may comment on or respond to reviews or endorsements. In sum, the opinion concluded that lawyers may comment or respond to online reviews or endorsements, but may not reveal confidential client information without the client's consent in accordance with Rule of Professional Conduct 1.6. This was consistent with the committee's previous conclusion in its Formal Opinion 2014-200 that lawyers may not reveal client confidential information in response to negative online reviews. Like the New York State Bar Ethics Committee, the Pennsylvania committee agreed that certain circumstances would allow a lawyer to reveal confidential information, but "a negative online client review is not a circumstance that invokes the self-defense exception." Overall, "a lawyer's comments on social media must maintain attorney-client confidentiality, regardless of the context, absent the client's informed consent."
So be cautious. Although responding to a client's (or a former client's) online negative review is tempting, and technically allowed under the rules of professional conduct (at least in New York and Pennsylvania), attorney must be careful what they write. Any information posted by a lawyer on social media, whether in response to a review or not, is subject to attorney-client confidentiality rules. Whether or not you practice in New York or Pennsylvania, it is not appropriate for a lawyer to reveal confidential client information or otherwise make prohibited extrajudicial statements on social media.
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