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.
Sandra Schilling. Sandra is an attorney with the WSBA Office of General Counsel. She supports the WSBA Ethics Line. Attorneys with concerns about legal ethics can call the Ethics Line at 206-727-8284 or 800-945-WSBA (9722), ext. 8284 and receive help analyzing ethical issues. For other issues, Sandra can be reached at sandras@wsba.org or 206-239-2118.
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C. Olivia Irwin, J.D.
Respectfully, the WSBA’s interpretation of RPC 1.6 needs an upgrade to be comprehensive of the realities of the modern age. As the article relates, there is no exception that specifically applies to on-line controversy or other related activity–but there probably should be. As a lawyer is uniquely exposed to online harassment as compared to any other court staff or public officer, a lawyer should be able to defend themselves in online commentary as far as the attorney-client privilege can be construed as waived by the holder. At the very least, there is no logical reason to prohibit a lawyer’s reference to relevant case number(s) if they are public record.
Ultimately, no matter what the rule is, online interactions are treacherous business, and I would tend to agree that just re-stating the rule on confidentiality is generally the wisest, most professional route. Still, it is hard to say on a case-by-case basis, whether that will actually solve the problem. Online interactions can range from the trivial to the life-threatening. They can take place in rooms/platforms where one can’t trace the origin and sometimes have no ability to respond. Maybe because, like most organizations, the WSBA just can’t get its head around the evolving technological challenges–and since it has “no skin in the game” it purports to tell attorneys to just shut up and deal with the consequences, but to leave it at that is a bit irresponsible in my view.
While Attorney-client privilege is statutory (superceding rules), there’s an argument to be had that a client/former client waives that right when s/he intentionally shares (or misrepresents) that confidential information with the universe, rendering the information public. So too, similar to the negative press exception under RPCs on pre-trial publicity–an online trial in the worldwide court of public opinion should count as controversy necessitating defense for the purposes of the rule, even more so than formal or closed proceedings, especially where there are specific written allegations of misconduct-as there are no procedural protections on the web, and the damage done can be immeasurable.
The WSBA’s own online policies with regard to attorney information arguably enable/exacerbate this problem in the interest of “transparency”, by currently publishing globally not only individual attorney information, but detailed disciplinary history as well–which countless private sites around the world can appropriate the information for any purpose. It should be noted also that attorneys are not specifically protected by state statute with regard to harassment or assault by members of the public in association with their duties as other public servants are. The defense exception under the RPC’s is all the protection the Bar offers, and to interpret it so narrowly is to perhaps to fail to recognize the magnitude of issue for lawyers–just one of the MANY we find at the intersection of technology and legal practice–making the continued conversation a very important one to have.