ABA Chimes In on Responding to Bad Reviews: No Self Defense

The American Bar Association has issued formal ethics opinion 496. The opinion addresses responding to negative online reviews and joins the growing number of ethics opinions opining that lawyers are highly circumscribed in responding to them (see LACBA formal ethics opinion 525, Florida Bar ethics opinion 20-1, proposed North Carolina State Bar formal ethics opinion 2020-1, among others.) The common thread in each of these opinions is that a lawyer’s response may not reveal any confidential information related to the representation and that the lawyer’s response should be “proporionate and restrained”. The gist:

Lawyers are regularly targets of online criticism and negative reviews. Model Rule of
Professional Conduct 1.6(a) prohibits lawyers from disclosing information relating to any
client’s representation or information that could reasonably lead to the discovery of
confidential information by another. A negative online review, alone, does not meet the
requirements of permissible disclosure in self-defense under Model Rule 1.6(b)(5) and, even if
it did, an online response that discloses information relating to a client’s representation or
that would lead to discovery of confidential information would exceed any disclosure permitted
under the Rule. As a best practice, lawyers should consider not responding to a negative post
or review, because doing so may draw more attention to it and invite further response from an
already unhappy critic. Lawyers may request that the website or search engine host remove
the information. Lawyers 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 another, in the response. Lawyers may post an invitation to contact the lawyer
privately to resolve the matter. Another permissible online response would be to indicate that
professional considerations preclude a response.

ABA Formal Ethics Opinion 496

The ABA put to rest any lingering notion that the “self-defense” exception to confidentiality in ABA Model Rule 1.6(b)(5) allows the lawyer any latitude in responding with confidential information, defined broadly in ABA Model Rule 1.6(a) and by California statute, Business and Professions Code section 6068(e). California’s version of Rule 1.6 DOES NOT contain an explicit attorney self-defense exception to confidentiality, although some have argued that an implied self defense exception exists by virtue of the Evidence Code exception to lawyer-client privilege in section 958. Reliance on such “implied exceptions” carries a lot of risk (see California Legal Ethics blog “Pictures of Lily – Implied Exceptions to Confidentiality in California).

Lawyers in California and elsewhere will continue to fume about the unfairness of being attacked and being unable to defend, especially as marketing becomes more and more driven by online reviews. Unfortunately, there is little that can be done. The most useful aspect of the ABA opinion is that responding to the negative on line review by noting that the lawyer is constrained by professional rules might ameliorate the unfairness by suggesting there is more to the story than the lawyer can reveal.

Discipline for DUI: Not All Lies Are Created Equal

In the Matter of Caplin, Review Department, State Bar Court, case no. 17-C-05405, originally filed 11/13/20, publication ordered 12/30/20.

The Review Department, on motion of the Office of Chief Trial Counsel (OCTC), has ordered publication of its previously unpublished decision In the Matter of Caplin. Caplin involves a criminal conviction referral proceeding arising from a conviction for violating Vehicle Code 23152(a), popularly known as DUI, with an enhancement for high BAC. A chief issue in the case was whether the circumstances of the crime involved moral turpitude. After his arrest, the respondent told an elaborate lie to the police:

When questioned by Officer Friedrich at the accident scene, Caplin falsely identified a Michael Fisher as the driver of the vehicle, when in fact Caplin does not know anyone by that name. He repeated the lie to Officer Byrne. Caplin continued to conceal that he was the driver and made five additional statements promoting the false Michael Fisher narrative. Specifically, Caplin was deceitful with Officer Friedrich and Officer Byrne during the following seven interactions, to which he stipulated: (1) Caplin informed Officer Friedrich that his friend Michael Fisher had been driving the vehicle; (2) Caplin described Fisher as a white man wearing a buttoned-up shirt; (3) Caplin told Officer Byrne that his friend Fisher had been driving; (4) Caplin denied having Fisher’s telephone number when Officer Byrne asked Caplin to call Fisher to return to the scene; (5) Caplin advised Officer Byrne that he contacted Fisher and asked him to pick up Caplin; (6) When confronted with his inconsistent statements about not having Fisher’s phone number, Caplin conceded that he did have the number, but it was not a saved contact; and (7) Caplin interrupted Officer Byrne during the FSTs instructions to explain that he was not the driver of the vehicle.

Caplin, slip opinion at page 7

The presence or absence of moral turpitude in the circumstances surrounding crimes that do not inherently involve moral turpitude (like DUI) makes big difference in the level of discipline. The State Bar’s disciplinary standards are only guidelines but they illustrate the point.

Standard 2.15 CRIMINAL CONVICTIONS INVOLVING MORAL TURPITUDE

(b) Disbarment or actual suspension is the presumed sanction for final conviction of a
misdemeanor involving moral turpitude.

Standard 2.16 CRIMINAL CONVICTIONS NOT INVOLVING MORAL TURPITUDE

(b) Suspension or reproval is the presumed sanction for final conviction of a misdemeanor
not involving moral turpitude but involving other misconduct warranting discipline.

“Suspension” in Standard 2.16 is a term of art in disciplinary jurisprudence. It means a period of probation with an actual suspension hanging over the disciplined lawyer is he or she violates probation. “Actual suspension” in Standard 2.15 means exactly that, a period of time where the lawyer is unable to practice law for a minimum of 30 days at the start of the accompanying probation. The Hearing Judge found no moral turpitude and recommended two years probation, with stayed suspension of two years.

OCTC successfully appealed. The Review Department, exercising its de novo review power, found moral turpitude and tacked on a 30 day actual suspension but reduced the probation and stayed suspension to one year.

Ray Milland Contemplates a
Complex Narrative in “The Lost Weekend.

The Hearing Judge cited In re Kelley (1990) 52 Cal.3d 487 and In the Matter of Anderson (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 208, in finding that the respondent’s crime did not involve moral turpitude, yet also found that misrepresentations were made that justified a higher level of discipline the public reproval imposed by the California Supreme Court in Kelley. The Supreme Court in Kelley found that her second DUI did not involve moral turpitude but other misconduct warranting discipline, despite her misrepresentation to the police officer that she had not been drinking.

When the officer asked to see her driver’s license, he smelled alcohol and noticed that petitioner’s movements were labored. He asked whether she had been drinking; she asserted she had not.

Kelley, at 491

This sets up the most remarkable part of the opinion. How to square the Supreme Court’s holding in Kelley that misdemeanor DUI does not involve moral turpitude with Kelley’s misrepresentation to the officer that she had not been drinking? The Review Department in Caplin distinguishes the misrepresentation in Kelley thus

Although Kelley, with a prior DUI conviction, lied to police about not having consumed alcohol when being arrested [citation], In re Kelley is distinguished because the attorney’s lies were generic and limited to not being intoxicated. Here, Caplin’s lies were far more elaborate and numerous, and had the potential for great harm since he shifted blame to a fictitious driver, whom the police attempted to locate, thereby wasting valuable law enforcement resources.

Caplin, slip opinion at page 6.

On its face this may seem dubious. Isn’t a lie a lie? And isn’t dishonesty a foundation stone of the legal professions.

Part of the reason for confusion is the vagueness of the moral turpitude concept. Older discipline cases talked about moral turpitude in harsh terms. “Moral turpitude” is an elusive concept incapable of precise general definition. One dramatic exposition of the term was rendered by this court in 1938, and has since been consistently followed: “an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.” In re Higbie (1972) 6 Cal.3d 562, 569. Yet an attorney can be culpable for moral turpitude for actions, especially misrepresentations, where there was no intent to deceive but merely gross negligence. See In the Matter of Yee (Review Dept. 2014 Cal. State Bar Ct. Rptr. 330, 334, Renke, PJ, dissenting, and cases cited therein.)

Even those cases found that clarity in the vaguely defined realm of moral turpitude depended on some connection with the conduct and the practice of law. In evaluating conduct that may or may not involve moral turpitude, we must recognize the purpose for which we have established the “moral turpitude” standard: to ensure that the public, the courts, and the profession are protected against unsuitable legal practitioners. [citations] The objective is not to impose punishment upon members of the profession. To hold that an act of a practitioner constitutes moral turpitude is to characterize him as unsuitable to practice law. Higbie, at 570.

But lawyers can commit criminal acts in course of practicing law, entirely within their personal lives, and every variation in between. Business and Professions Code section 6106 is explicit in finding acts of moral turpitude worthy of actual suspension or disbarment whether committed in the course of the practice of law or not. For the Review Department, it was the conclusion based on “the totality of the evidence” that respondent “consciously and persistently fabricated a complex narrative involving a phony driver to thwart arrest and place himself above the law” (Caplin, slip opinion at page 8) a narrative with harmful potential consequences because it diverted law enforcement resources in the hunt for the “real driver.” Complex narratives, of course, are what lawyers do. Caplin’s complex narrative directly implicated his fitness to be lawyer; Kelley’s spontaneous and general lie about not drinking did not, although other aspects of her conduct did constitute other misconduct warranting discipline.

Caplin is significant of another reason. The Office of Chief Trial Counsel has recently sought to increase the discipline imposed for DUI. Part of that effort has entailed arguing that precedents like Kelley and Anderson as obsolete because society views DUI much more seriously now than it did when those cases occurred and that all DUIs involve moral turpitude per se because the decision to drive after drinking shows “a serious breach of a duty owed to another or to society, or such a flagrant disrespect for the law or for societal norms, that knowledge of the attorney’s conduct would be likely to undermine public confidence in and respect for the legal profession.” (In Re Lesansky (2001) 25 Cal.4th 11, 16.) OCTC’s chief cudgel in this fight has been In a Matter of Guillory (Review Dept. 2015) 5 Cal. State Bar Ct. Rptr. 402. Guillory involved a deputy district attorney with multiple DUI convictions who attempted (unsuccessfully) to use his status to convince police officers not to arrest him. It has been liberally used to argue for increased discipline in DUIs case with far less egregious facts no where closed the specific acts found to be moral turpitude by the Review Department.

In my view Caplin, despite the moral turpitude finding, stands for the proposition that Kelley and Anderson are not obsolete, still good law and still useful in determining the line between DUI conduct that involves moral turpitude from that which does not. Caplin was an unpublished decision and not citeable as precedent; now thanks to the publication request from OCTC, it is available to help guide the State Bar Court. One wonders if they thought that through before making it.