A few weeks ago, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility released Formal Opinion 496 where they discuss how a lawyer can ethically respond to negative online reviews. Prior to this, it was generally understood that a lawyer shall not disclose confidential information under the attorney-client relationship to respond to a negative online review. The committee agreed.
The opinion cites to the relevant ABA Rule stating that a lawyer may reveal confidential information to establish a defense 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.
The committee found that a negative review is not a “proceeding” in any sense of the word. Second, they looked at whether online criticism rises to the level of a “controversy” between a lawyer and a client, and if so, whether responding online to the criticism is reasonably necessary to defend against it. They concluded that because of its informal nature, a negative online review is not a controversy within the meaning of the rule and therefore does not allow the lawyer to disclose confidential information. And even if the criticism were to be considered a controversy between lawyer and client, a public response is not reasonably necessary to establish a defense to the criticism.
The committee warned that some states can impose sanctions against lawyers for disclosing confidential information online and then offered recommendations on responding to negative comments online. They advise contacting the website or search engine to remove the post. This is generally for posts that are truly fraudulent, such as a post from someone who is not a client.
The committee also advises not responding to the complaint at all as it can trigger another response from the original poster. And reviews with more activity generally gets better online search results.
Finally, they recommend contacting the original poster and trying to work something out so that they will remove the post voluntarily.
My guess is that most attorneys will not have nice things to say about this opinion although they will not be surprised.
Let’s take a look at the opinion and start by looking at the committee’s analysis on proceedings. I agree that a negative online review is not a proceeding. But many of the prominent ratings websites have procedures for dispute resolution which includes removing a negative review. Does participating in the dispute resolution process count as a “proceeding”? If it does, it may only allow disclosure of confidential information only to the people involved in the resolution process.
An argument can be made that a negative review can be a controversy between attorney and client. The client is making a statement that can negatively affect an attorney’s reputation and means of making a living. While it may seem informal, it’s not like hallway chatter, locker room gossip where the audience and potential for spread is limited. On the other hand, internet reviews can reach a large audience very quickly. If a review goes viral, it can result in others piling on in a pack mentality, giving multiple negative (mostly unsubstantiated) reviews. Because of its fast and far-reaching effect, criticisms should not be easily dismissed despite their informality.
The committee does not explain why a public response is not reasonably necessary to establish a defense to the criticism if a negative review rises to the level of a controversy between lawyer and client.
Finally, the committee’s “best practices” recommendations are seldom likely to get the results the attorney wants. Or even a fair result. Most websites will rarely remove a negative review — even if it is false — as they generate the most interest. They claim that removing negative reviews will affect the integrity of their ratings, and it’s up to the aggrieved party to respond appropriately. I agree that some negative reviews do not warrant a response, usually the ones where it is obvious that the reviewer’s words are not trustworthy. Reaching out to the former client sometimes works, but usually they will want a full refund and even then that does not guarantee a removal. And the committee’s recommendation to use a canned response stating that “professional obligations do not allow me to respond as I wish” seems dull and analogous to someone saying that they will take the fifth.
Now I understand on a general level why the committee ruled the way it did. The duty of confidentiality is a sacred one in the legal profession. Because violating that duty can result in punishment, clients can feel secure that they can be candid with their attorney. And former clients should be allowed to share their negative experience with a particular attorney as the threat of public criticism should ensure that attorneys treat their clients with the care they deserve.
But the problem is that the rule forbidding the disclosure of information is perceived to be too harsh to attorneys and overwhelmingly gives clients the benefit of the doubt. Why should clients get to tell their side of the story while attorneys have to suck it up to protect the duty of confidentiality? We are no longer members of a gentry where we are above petty criticism.
My recommendation for a future opinion letter is that there should be very clear guidelines as to what topics should be given full confidentiality protections and which ones should not. Not every conversation between an attorney and client should be subject to attorney-client privilege. I’ll give an example: opinions on fees. If a potential client complains online about an attorney not giving free consultations, the attorney should feel free to respond with full details about his or her billing structure as it has no adverse effect on a client’s legal issues. Or if a client complains that his attorney overbilled, he should be allowed to explain (within reason) why he billed the way he did.
This should remind lawyers of a few rules when it comes to dealing with negative internet comments. First, do not take clients that mostly give negative reviews.
Second, the lawyer should give a professional response no matter how insane the review looks. These days, while most people will still gravitate toward the negative reviews, they will also look at the response to it. A professional response has the chance of minimizing or negating the effect of a bad review.
Negative online reviews are the bane of any business, law practices included. But most bar associations’ ethics opinions forbid attorneys from disclosing confidential information, a decision most attorneys thinks is unfair and does not take into account the harsh behavior of an angry internet mob. While the duty of confidentiality is a cornerstone of legal practice, not every communication is entitled to that protection. Hopefully, a future ethics opinion will list what topics can be disclosed without violating the attorney’s duty of confidentiality.
Steven Chung is a tax attorney in Los Angeles, California. He helps people with basic tax planning and resolve tax disputes. He is also sympathetic to people with large student loans. He can be reached via email at sachimalbe@excite.com. Or you can connect with him on Twitter (@stevenchung) and connect with him on LinkedIn.