Under those circumstances, the LACBA Committee concluded that a public response would be permissible, as long as (1) the attorney’s response did not disclose confidential information; (2) the attorney did not respond in a manner that would injure the former client in a matter involving the prior representation; and (3) the attorney’s response was proportionate and restrained. The Committee defined a “proportionate and restrained” response as one where the attorney “say[s] no more than is necessary to rebut the public statement made by Former Client,” which is also the standard governing attorneys in fee disputes and malpractice actions.
In putting forth those guidelines, the LACBA Committee explained that attorneys must refrain from conduct that would injure a former client in any matter of prior representation. California, which has not adopted the ABA Model Rules of Professional Conduct, provides no exception to an attorney’s duty of confidentiality or the attorney-client privilege absent a waiver or court order permitting disclosure.
The LACBA Committee suggested that other jurisdictions following Model Rule of Professional Conduct 1.6(b)(5) may recognize a “self-defense” exception to an attorney’s duties of loyalty and confidentiality and reach a different result. That provision allows a lawyer to reveal information relating to the representation of a client to the extent that lawyer reasonably believes necessary to “establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” California does not recognize this exception to an attorney’s duties of loyalty and confidentiality.
Balancing Client Interests and Well-Deserved Professional Reputations
“It’s important to maintain confidential information of clients even if a client was critical of an attorney in a public setting such as the Internet. But with the power of mass media, an attorney could have his or her business and reputation really damaged. The Los Angeles opinion strikes a good balance,” says Stephen T. LaBriola, Atlanta, cochair of the Attorney Advertising Subcommittee of the ABA Section of Litigation’s Ethics and Professionalism Committee.
But LaBriola also observes that the LACBA opinion leaves “a lot of wiggle room” as to what language will fall within the boundaries of compliance. “What is ‘proportionate and restrained’ will be as much art as it is science. There need to be further cases to put more meat on the definition of what goes out of bounds and what is firmly within it. An attorney would be much safer confining his comments to publicly filed pleadings,” he advises.
Others believe the opinion may not adequately protect attorneys from the remarks of a disgruntled client. “Given the restrictions in the ethics opinion about what the lawyer can and cannot do, I am not sure what the lawyer can actually say other than ‘Not so.’ That seems like a toothless remedy,” states Loren Kieve, San Francisco, cochair of the Section of Litigation’s Attorney-Client Privilege Task Force.
“Self-Defense” Exception to the Duty of Loyalty
Whether Model Rule 1.6(b)(5)’s “self-defense” exception to the duty of loyalty applies to Internet postings remains up for debate. The key issue appears to be whether the rule requires a pending judicial or other legal proceeding.
“I don’t think Rule 1.6(b)(5) contemplated a scenario of a former client posting something negative about an attorney in the blogosphere. The rule speaks in terms of an official proceeding where confidentiality has been waived and there is an administrative or judicial body making the decision rather than the body of public opinion,” comments LaBriola.
Others argue that a former client implicitly waives the confidentiality of information disclosed to an attorney by attacking the attorney. “By bringing into question the conduct of the lawyer, the only way that lawyer can defend himself is to say, ‘This is what was happening, and this is what I did.’ Otherwise, a client can smear a lawyer’s good name and reputation with impunity. A lawyer should be permitted to defend himself or herself short of actually filing a lawsuit,” explains Kieve.
Because not all clients will be satisfied with reasonable fees and competent practice, Kieve urges attorneys to choose clients with care.
Renee Choy Ohlendorf is an associate editor for Litigation News.