As the impact of social media widens, with companies like Yelp, Google and Avvo providing avenues for clients to post reviews about lawyers, we should all strive to protect ourselves from false and negative online reviews. One way to do this may be through your attorney-client retainer agreement in a “non-disparagement” clause.
What is a non-disparagement clause?
It is a provision that a lawyer may wish to include in his or her retainer agreement with a client that prohibits the client from initiating a negative online review about the services of the firm. Some attorneys include a specific damages provision, whereby if the client violates the agreement they automatically owe a specific amount of money in damages.
Current Washington law
Washington law currently has no statutory prohibition to non-disparagement clauses in contracts between businesses and consumers. Other states, such as California, recently passed legislation prohibiting non-disparagement clauses (Civil Code Section 1670.8). The thought is that such clauses may impinge on First Amendment free-speech rights and would violate public policy. However, such clauses are typically upheld in employer-employee dispute settlement agreements. It is undetermined whether the Washington Legislature will address non-disparagement clauses in the future.
Make sure to include a severability clause
Every lawyer should have a severability clause in their retainer agreement with clients. Such a provision states that if any particular provision is held to be unconscionable or otherwise invalid, the remainder of the agreement remains enforceable. This is particularly important if you include a social media, non-disparagement clause in your retainer agreement.
Benefits and drawbacks
The benefit to including such a provision is fairly obvious, in that a current or former disgruntled client may be less inclined to post a negative review about your firm’s services. Negative online review could cost a firm into the tens of thousands of dollars in lost revenue. Recent research indicates that 85% of consumers would not pay for a product or service with negative online reviews. The drawbacks are presently limited, because there is no current legal prohibition to these clauses. However, one potential significant drawback is a potential client may see the non-disparagement clause in your retainer and worry that you typically provide poor service.
For more information about protecting your firm, visit http://clientconflictcheck.com/blog.html. WSBA members receive a lifetime 15% discount. Use promo code WSBA15P at checkout or when you sign up for a free trial.
David Wilkinson. David is an attorney licensed to practice law in California and Massachusetts. He grew up in Washington and attended undergrad at UW. He currently runs five family law offices and is a bar-certified expert in family law. He is also a founding member of www.clientconflictcheck.com, a cloud-based conflict check system for law firms.
John McDonald
I think a Nondisparagement Clause of the type described here would (rightfully) cause most clients to head for the door. Some Clients might interpret the Clause as the Attorney’s acknowledgement that he does not have the skill, diligence, or aptitude for the job, not to mention the self-confidence to take a few verbal punches in public. I remember Bruce Cutler who represented John Gotti years ago getting maligned by Gotti in public before Gotti fired him from representing him in the next of the many prosecutions against him.
The Clause looks like a nullity, unenforceable from the start (probably why the author went out of his way to mention the unrelated matter of including a severability clause). The Clause is a Prior Restraint on Speech and an attempt to exact punitive damages if a Client elects to publicly expressing herself. This part–exacting damages from our own Clients–may add a new dimension to the image of greedy lawyers.
The analogy to the employer-employee settlement, if you think about, is a misapplied simile or analogy. An employer pays a specific sum of money only after a Petition is filed and pays NOT to continue litigation, for reasons we rarely learn about publicly except in the Answer. If an employer uses such a Clause preemptively, it is the Employer who must pay for that silence. If the Employer is defined by the party who pays the money or compensation, I would think the Client becomes the Employer since it is the Client who pays us.
As described by the author, a Client is being told not to speak even before any proof of damages is made showing that the Attorney actually has been injured or actually has sustained losses as a result of a Client’s public comments. I may be offering proof of my own ignorance, but do serious and well intentioned potential clients really look for lawyers on Twitter? Why would the author’s proposed restriction be limited to social media and not applied to print media, which potential clients might actually pay attention to for more than a millisecond?
The author’s proposal seems to me to be a a bad idea and a bad solution looking for a
non-existent problem. Is there evidence that lawyers have lost actual business because of former client’s social media criticisms? The Bar Counsel ought to weigh in, though. I think such a Clause, with damages provisions that look like liquidated and punitive damages at least raise an ethical issue (and perhaps a stupidity issue for lawyers who use them).
The day we as lawyers shy away from criticism from anybody–clients, judges, other lawyers, spouses, friends–is the day we lose our ability to represent anybody effectively.