Do You Have a Social Media Clause in Your Retainer Agreement?

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.

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