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.

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