ETHICS AND PROFESSIONAL RESPONSIBILITY

ABA issues new guidance for responses to online criticism

January 18, 2021

A lawyer involved in a client matter receives a negative online review on a popular lawyer web site. The lawyer believes the criticism is unwarranted and begins to develop a response.

A new formal opinion issued Jan. 13 by the American Bar Association Standing Committee on Ethics and Professional Responsibility suggests the lawyer take a pass. “As a best practice, lawyers should consider not responding to a negative post or review because doing so may draw more attention to it and invite further response from an already unhappy critic,” Formal Opinion 496 said.

The ABA issued Formal Opinion 496 to guide lawyers' responses to a negative post or review online.

The ABA issued Formal Opinion 496 to guide lawyers' responses to a negative post or review online.

Getty Images / damircudic

As a practical matter, the opinion explained that any response “frequently will engender further responses from the original poster … (and) no response may cause the post to move down in search result rankings and eventually disappear into the ether. Further exchanges between the lawyer and the original poster could have the opposite effect,” it said.

If a lawyer decides to respond, the opinion suggested several options while addressing the ethical obligations lawyers should consider under ABA Model Rules of Professional Conduct related to client communications. A negative online review alone, for instance, does not meet the standard for a lawyer to provide confidential information as a defense under ABA model rules, it noted.

The lawyer may request that the website or search engine host remove the post for a specific reason. The lawyer might also reach out to the client or former client to discuss the matter outside of the public arena.

If a lawyer chooses to respond publicly, suggested responses include posting an invitation to contact the lawyer privately to resolve the matter or indicating that professional considerations preclude an online response.

In all cases, however, the lawyer under ABA Rule 1.6 should not disclose any information related to a client’s representation or information that could reasonably lead to the discovery of confidential information by others.

The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior. Recent ABA ethics opinions are available on the ABA Center for Professional Responsibility webpage.

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