What You Say Online can be Used Against You – Part 2

Lessons learned from the first GA Supreme Court opinion related to Rule 1.6 and online publications.

While writing my last article about some of the dangers of Facebook posts to both lawyers and clients, I thought about a similar case earlier this year that was decided by the Georgia Supreme Court. The theme is the same – watch what you say about clients online – but this time there may be both a major impact on the involved attorney as well as a major impact on future Bar sanctions.

The GA Supreme Court opinion, rendered on March 18, 2013, is In the Matter of Margrett A. Skinner, Case No. S13Y0105. Here’s a brief synopsis of what happened, plus some ideas to help you avoid this type of issue in your own practice.

How to make a bad online review even worse

A client fired a lawyer and then proceeded to post negative reviews about the lawyer on a number of consumer websites. Responding to those reviews, the lawyer included purported confidential information obtained during the professional relationship with the client. The client filed a GA Bar complaint, and the lawyer was charged with a number of alleged Rules violations, including:

• Rule 1.6 – Confidential information
• Rule 1.3 – Disregarding a legal matter
• Rule 1.4 – Failure to keep client informed, failing to provide an itemized statement
• Rule 1.16 – Refusing to refund unearned fees.

There were conflicting factual accounts of the other Rule violations, so the Special Master appointed by the Supreme Court focused on the Rule 1.6 violations. The lawyer admitted a violation of Rule 1.6 and sought a Review Panel Reprimand. The Bar accepted the lawyer’s voluntary sanction, but the Supreme Court did not – remanding the case back to the Bar for a stronger sanction.

First Rule 1.6 violation decision for internet issue

The GA Supreme Court noted that this was the first time it faced a Rule 1.6 violation “by means of internet publication,” and pointed to other states that handed out harsher penalties, up through 90-day suspensions. The complaint is still pending with the GA Bar, and the ultimate outcome rests with the GA Supreme Court.

Don’t let this happen to you

If you are in a consumer-focused practice, there’s a pretty good chance that you have or will receive a negative online review at some point, or at least the threat of one from a challenging client. Here are some ideas to help you react, respond, and retain your license.

• Admit your mistakes – We all make mistakes at some point. When you do, admit it to your client, your insurance carrier (if required), and the Bar (if a complaint is filed). In this case, the Supreme Court noted Skinner’s expression of remorse, which may still lead to a less severe final sanction.
• Communicate – Meet with the client, preferably face-to-face, and try to work through their perceived concerns. Many people are much harsher on the phone or email, but soften up in person. I’ve heard many times where a client has modified or removed a negative review after being politely asked.
• Respond like a professional – The Rules of Professional Conduct apply online. Take the high road, rather than descending to your client’s level. If there is potentially libelous information, politely ask for a modification or retraction before you threaten legal action.
• Contact the website – While it may be nearly impossible to have a review removed from Google, other sites make their money from advertisers like you. You may find that they are more willing to remove an overly general and harshly worded review.

Having defended lawyers in legal malpractice cases where a condition of resolution was retraction of negative statements made on consumer alert websites, I can attest to the difficulty of such terms. Be proactive and do what you can to avoid negative postings in the first place.

Follow Abraham Lincoln’s advice, even if you don’t follow mine

Abe’s quote applies to these situations and this case in particular. “He who represents himself has a fool for a client.” If you ever receive a Bar complaint, your second call (after your insurance carrier) should be to a neutral source of legal advice who can help you react and respond the right way – like the professional that you are.

I’ll follow up when the final sanction is determined by the Georgia Supreme Court.