Lawyers Responding to Online Criticism: Can Less Be More?
Online reviews of businesses and services are ubiquitous in today’s marketplace. Attorneys are no stranger to the proliferation of such reviews by current and former clients who post on sites such as Avvo, Google Reviews, Yelp, and social media platforms like Facebook and Twitter. Positive reviews are fine and dandy, but what about the former client who is unhappy and leaves a negative review? Even more frustrating is the situation where a non-client or opposing party files a negative review simply because you represented your client well and defeated the opposing party. What is the best course of action to address a negative review?
Consider the following scenario: Attorney Smith is reviewing his Twitter feed on his phone one morning and comes across the following tweet from a former client:
Attorney Smith charged me an outrageous fee, assured me that I had a good case, but he didn’t work hard enough and we got thrown out of court!!!! Should I file a Bar complaint against him?
Attorney Smith, incensed by his former client’s tweet, hastily types a reply to “set the record straight”.
Mr. Jones signed a representation agreement agreeing to my fee, which is reasonable and in line with other attorneys in this State. I never guarantee results and in fact I explained to Mr. Jones at the outset that there was a potential problem with the statute of limitations in his case, which is why the case was dismissed.
Instead of setting the record straight, Attorney Smith may have violated the Georgia Rules of Professional Conduct, Rule 1.6 (a), which requires attorneys to protect from disclosure client (and former client) confidential information, except in the limited circumstances set forth in Rule 1.6 (b) (1). Attorney Smith’s reply discloses communications regarding the merits of the former client’s case and the terms of the representation, which may be considered privileged and/or confidential.
Rule 1.6 (b) (1) permits disclosure of client confidential information only in limited circumstances which the lawyer reasonably believes necessary:
(i) to avoid or prevent harm or substantial financial loss to another as a result of client criminal conduct or third party criminal conduct clearly in violation of the law;
(ii) to prevent serious injury or death not otherwise covered by subparagraph (i) above;
(iii) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
(iv) to secure legal advice about the lawyer’s compliance with these rules[; and]
(v) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or changes in the composition or ownership or a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
Rule 1.6 (b) (1) (emphasis added).
Attorney Smith’s online reply clearly does not fall within Rule 1.6 (b) (1) (i), (ii), (iv) or (v). The remaining exception, Rule 1.6 (b)(1)(iii) is a closer call, but still does not provide cover because the tweet does not appear to constitute a “controversy” between the lawyer and client, does not constitute a “criminal charge or civil claim,” and similarly is not a “proceeding,” according to a Formal Opinion issued by the American Bar Association earlier this year.
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The American Bar Association Standing Committee on Ethics and Professional Responsibility released Formal Opinion 496 (the “Opinion”– click the color text to download a pdf of this document) in January of this year, which analyzes the ethical obligations for attorneys to be aware of in responding to online criticism, including social media and sites that post reviews.
The Opinion explains that ABA Model Rule of Professional Conduct 1.6 (a), which is very similar to Georgia Rule 1.6 (a), prohibits attorneys from disclosing information relating to any client’s representation or information that could reasonably lead to the discovery of confidential information by another. The Opinion explains that a negative online review does not implicate any of the Georgia Rule 1.6 (b)(1)(iii) exceptions:
There are three exceptions bundled into that provision, the first two of which are clearly inapplicable to online criticism. First, online criticism is not a “proceeding,” in any sense of that word, to allow disclosure under the exception “to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” Second, responding online is not necessary “to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved.” A lawyer may respond directly to a person making such a claim, if necessary, to defend against a criminal charge or civil claim, but making public statements online to defend such a claim is not a permissible response. Thus, the remaining question is whether online criticism rises to the level of a controversy between a lawyer and client and, if so, whether responding online to the criticism is reasonably necessary to defend against it. The Committee concludes that, alone, a negative online review, because of its informal nature, is not a “controversy between the lawyer and the client” within the meaning of [the Rule], and therefore does not allow disclosure of confidential information relating to a client’s matter.
Opinion at 3 (footnotes excluded).
Even if the online criticism were to rise to the level of a “controversy,” the Opinion concludes that a public response is not reasonably necessary because Rule 1.6 permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes stated. In other words, replying online to the criticism is not reasonably necessary to “establish a claim or defense.” Rule 1.6 (b) (1) (iii). In support, the Opinion cites numerous state bar ethics opinions that have analyzed in detail the issues and reached the same conclusion.
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The risk of disciplinary action from responding to online criticism may seem remote, but there are numerous reported cases of bar disciplinary authorities imposing discipline ranging from a public reprimand to suspension. See, e.g., In re Skinner, 295 Ga. 217 (2014) (imposing public reprimand for attorney’s violation of Rule 1.6 stemming from online disclosure of confidential client information in response to client’s negative reviews of attorney); In re Tsamis, Commission No. 2013PR00095 (Ill. 2014) (public reprimand imposed where lawyer disclosed confidential information on Avvo.com lawyer listing service in response to negative reviews: “I dislike it very much when my clients lose, but I cannot invent positive facts for clients when they are not there. I feel badly for him, but his own actions in beating up a female co-worker are what caused the consequences he is now so upset about”); In re Conduct of Conroy, 389 Or. 349 (2021) (imposing public reprimand against attorney responding to criticism by revealing client’s full name and nature of prior criminal charges filed against client); People v. Isaac, No. 15PDJ099, 2016 WL 6124510 (Colo. O.P.D.J. Sept. 22, 2016) (imposing six-month suspension for responding to online reviews by revealing criminal charges made against client).
Accordingly, restraint in posting a response is absolutely necessary when confronted with a negative online review. However, taking other legal action is not out of the question. See e.g., Pampattiwar v. Hinson, 326 Ga.App. 163, 166 (2014) (affirming jury verdict of $405,000 in favor of attorney Hinson on claims of fraud, libel per se, and false light invasion of privacy against former client, Pampattiwar, who reportedly described Hinson as “a crook lawyer[,]” an “Extremely Fraudulent Lady” who “inflates her bills by 10 times[,]” and had “duped 12 people i[n] the last couple of years.”).
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So, back to the hypothetical above, what are Attorney Smith’s options in responding to his former client’s criticism? The Opinion discusses certain best practices:
- Request that the platform remove the comment. Social media platforms enable users to request removal of content that violates the platform’s terms of service, which may include content that promotes violence, targets individuals with hate speech or harassment, promotes self-harm, violates copyright protections, etc. See, e.g., Twitter Terms of Service https://help.twitter.com/en/rules-and-policies/twitter-report-violation#specific-violations. That being said, we have made such request to webmasters on behalf of clients with little success.
- Request that the content be removed from search engine listings. The visibility of a negative comment can be reduced if it does not appear in search engine results. Google, for example, allows individuals to request removal of certain types of personal information. See “Remove your personal information from Google” https://support.google.com/websearch/troubleshooter/3111061?hl=en.
- Do not respond to the comment. Often, the best response is no response, particularly if the former client is trying to pick a fight or engaging in troll-like behavior in order to elicit a negative reaction from you. Further, responding creates additional content that search engines will pick up and amplify.
- Respond to the former client by suggesting that the conversation be taken offline. Sometimes former clients want to complain directly to the lawyer. Inviting them to have an offline conversation with you allows the former client to vent. Further, in some instances providing an offline release can be followed by a request to the former client to remove the negative review or to post a retraction of the negative review.
- If the criticism is from a non-client, it is acceptable to respond and state such fact, but care should be taken to not comment on any factual allegation, as even acknowledging involvement in the matter at issue may reveal client or former client confidential information. Further, it would be prudent to obtain your client’s informed written approval to your proposed response before posting the response.
- It is also permissible to simply state that you disagree with the review but that your professional obligations preclude a response.
In short, responding to online criticism is fraught with risk and should be avoided. Responding in writing to the criticism is unlikely to diffuse an angry former client, but could instead elicit additional criticism. Take the high road by not responding and request that the website or search engine remove the comment. If you feel it necessary to respond, suggest an offline discussion or simply state that professional obligations preclude a response to the substance of the criticism.
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