The internet and social media are a part of most attorneys’ practices, whether they’ve chosen an aggressive online presence or not. Along with marketing their practice and maintaining their digital presence, attorneys may find themselves facing a negative internet review. Sometimes they call the WSBA Ethics Line (800-945-9722 ext. 8284) asking for guidance on whether and how they can respond. Can attorneys post comments themselves after receiving unfair negative reviews? We’ll do a quick review of this scenario, but be sure to read the rules and their comments in their entirety.
Confidentiality is Key
No matter what and how anyone posts a review, remember confidentiality is an attorney’s paramount ethical responsibility. With limited exceptions, a lawyer shall not reveal information relating to the representation of a client. RPC 1.6. Comment 21 clarifies that “information relating to the representation” should be interpreted broadly, and is not limited to confidences and secrets but to all information relating to the representation, whatever its source. Even if the client opens the door and spews information, the attorney may not reveal information themselves unless the client gives informed consent or one of the other limited exceptions in RPC 1.6(b) is triggered. There is no RPC 1.6 exception that clearly applies in this situation.
Several state bar ethics opinions have recently reviewed this issue. For instance, Texas State Bar Opinion 662 (2016) states that a lawyer may not publish a response to a former client’s negative review on the internet if the response reveals any confidential information, but explains that the lawyer may post a proportional and restrained response that does not reveal any confidential information or otherwise violate the rules of ethics. See also Pennsylvania Bar Association Opinion 2014-200 (2014). Attorneys have been disciplined for responding publicly after an online review. See, for example, People v. James C. Underhill Jr., 2015 WL 4944192 (Colo. 2015) (lawyer suspended for, among other things, disclosing confidential information following internet complaints) and In re the Matter of Tsamis No. 2013PR00095 (Ill. 2014) (attorney reprimanded for revealing information following a negative on line review).
In addition, a negative review does not trigger the “self-defense” exception to RPC 1.6. Under RPC 1.6(b)(5) an attorney may reveal information relating to the representation to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client. Comment 10 states that an attorney does not need to wait for the commencement of an action or proceeding before responding. However, the “self-defense” exception only applies to civil, criminal, disciplinary or other proceedings which can significantly sanction the attorney, and only after the action or proceeding is in contemplation. A negative online review doesn’t meet this test. Pennsylvania Bar Association Opinion 2014-200 (2014).
So What Do You Do?
A reasonable and measured response is key. Blasting people who give you a negative review is not a good business model. You can try contacting the review site and asking for the review’s removal if you can prove the review is false, defamatory or written by a competitor. This, however, may not be successful, especially if the review is anonymous. See Thomson v. Jane Doe, 189 Wn. App. 45, 356 P.3d 727 (2015) , when the court refused to force disclosure of an anonymous online reviewer’s identity.
You can respond directly to the review on the site. Be courteous and explain that due to your duty of confidentiality, you can’t address the facts of the complaint, but that you do not believe it presents a fair and accurate portrayal of the events. Make clear that you are always available to meet with former clients and address any concerns they may have.
If possible, try to contact the reviewer directly and seek to ameliorate the situation or explain to them further why the representation unfolded as it did. If this is successful, don’t hesitate to ask for an updated review.
Try to avoid further negative reviews by soliciting client feedback directly as the representation continues and in exit interviews. Try to give your clients every opportunity to air their grievances with you and your firm directly so they don’t have the need to vent in public.
Lastly, the best antidote to a negative review is positive reviews. Keep your profile updated and facilitate the opportunity for your other clients to post their own satisfied reviews.
If you have concerns, contact the WSBA Ethics Line at (800) 945-9722, ext. 8284.