Lawyers receiving a negative online review now have additional guidance for deciding whether or how to respond. In Formal Opinion 496, the ABA Standing Committee on Ethics and Professional Responsibility sets forth best practices for attorneys to address criticism while fulfilling ethical duties to clients. ABA Litigation Section leaders caution that there is no one-size-fits-all solution, however.
ABA Model Rule of Professional Conduct 1.6 generally prohibits attorneys from disclosing any information relating to a client’s representation or that could lead to the discovery of confidential client information without client consent unless an exception to the rule applies. The committee observed that the only potentially applicable exception for online reviews was the portion of Rule 1.6(b)(5) that allows a lawyer to disclose confidential information in response “to allegations in any proceeding concerning the lawyer's representation of the client.” The committee concluded that a negative online review was not a controversy under Rule 1.6(b)(5) due to its informal nature, and thus, there was no exception that permitted attorneys to respond with confidential information. The committee added that even if an exception applied, “a public response [would] not be reasonably necessary” to establish the lawyer’s claims or defenses under Comment 16 to Rule 1.6(b).
The committee suggested several courses of action that would comply with the duty of confidentiality. First, lawyers “may request the host of the website or search engine to remove the post.” In making the request, the committee advised that attorneys may inform the host of certain facts if applicable, such as that the poster is pretending to be a client, that the post is inaccurate, or that the poster is not a client. However, the committee reiterated that no confidential client information may be disclosed without client consent.
Second, lawyers can simply not respond, as responding may escalate and highlight the negative review.
Third, if an attorney chooses to respond, he or she may “request to take the conversation offline” by stating, “Please contact me by telephone so that we can discuss your concerns.” The committee cautions that the lawyer may risk further negative posts if he or she is unable to assuage the poster’s concerns, however.
Fourth, lawyers may respond to reviews from nonclients by stating that the poster has never been a client, as lawyers owe no duties to nonclients. But if the post is from an opposing counsel or former opposing counsel, or a former client’s friend or family member, and it relates to an actual representation, informed client consent is required before the attorney discloses any confidential information. The committee explained, “Even a general disclaimer that the events are not accurately portrayed may reveal that the lawyer was involved in the events mentioned, which could disclose confidential client information.” Accordingly, the committee advised attorneys “to discuss the proposed content of the response with the client or former client.”
Lastly, if the poster is a current or former client, attorneys “may not respond online” other than “to acknowledge that the lawyer’s professional obligations do not permit a response.” The committee provided the following statement as an example: “Professional obligations do not allow me to respond as I would wish.” Additionally, the committee recommended that lawyers seek the advice of counsel before responding offline.
While Litigation Section leaders agree that Opinion 496 provides good solutions to dealing with negative online reviews, they caution that these recommendations may be limited in some situations.
“I think that the ABA’s recommendations of best practices are excellent—firms and lawyers will be better off if they follow them,” praises Cassandra B. Robertson, Cleveland, OH, chair of the Appellate Subcommittee of the Section’s Civil Rights Litigation Committee. “When lawyers feel hurt or threatened by a negative review, they are not in a good position to be able to neutrally respond,” notes Robertson.
“The ABA’s best practices are absolutely good conflict resolution practice,” agrees David D. Moore, Sylva, NC, cochair of the Civil Rights Litigation Committee. “However, there may arise some issues with applying a broad approach to dealing with negative online reviews—there’s not a one-size-fits-all solution,” Moore observes. “One thing that must be considered is whether the lawyer who is the target of a negative online review is a small-town lawyer whose practice involves domestic spats, or a big-city lawyer who does transactional work. A negative online review could be more damaging to a small-town lawyer’s reputation than a big-city lawyer,” cautions Moore.
Section leaders recommend that lawyers collaborate with their firm to put together an appropriate response that is attuned to the disgruntled poster, if necessary. “It should be up to the firm because the firm acts as a collective. Any issues that the individual attorney may have with how the firm decides to respond can be resolved internally,” advises Moore.
“Prospective clients can be influenced by online reviews, but they don’t care about the specifics of what happened with the former client,” Robertson adds. “Instead, they want to see that the lawyer is caring, responsive, and treats former clients with respect. I recommend responding with empathy and an invitation to discuss the matter privately,” concludes Robertson.
