You are an associate in a mid-sized firm and are on the partnership track. Recently, you represented a client in a child custody matter who was not truthful with you when discussing the facts of the case. As a result, he came away with a less than optimal outcome. Even though the client was trouble from the beginning, you tried to resolve the custody and support issues in the best way possible. However, the client does not seem to understand how his own failure to tell you all the relevant facts contributed to the outcome when damaging information was revealed to the judge by the other side.
You arrive at the office one morning to find an email alerting you to a negative online review, left by this client. In your opinion it mischaracterizes your handling of the case, misstates what happened and borders on slander. It also could be a big negative in your efforts to make partner. You grind your teeth and feel the need to respond. You sincerely believe that if the true facts were a part of this statement, your conduct would be understandable, if not laudable.
What can you do and how should it be done?
Online review sites like Avvo, Yelp and Martindale Hubbell are popular with consumers and a relatively new twist that lawyers must take into account. Lawyers are trained to see two sides to a story and it can be maddening to have in print just one version, the opposing version, given credence with little option for a rebuttal. However, as much you may want to, do not adopt a “scorched earth” approach. Even though you are alone on your computer in your office, think of your reply as being broadcast on a megaphone and written in indelible ink. In these days of the Internet and social media, remember the “new” adage: Only post materials on the Internet that you wouldn’t mind seeing on the front page of the New York Times. Remember that any reply will live on, past the time when your emotions have cooled down. It will also remain for new clients to see and use to evaluate you. Damage control, not revenge, is the mantra.
Some lawyers have responded to online reviews and in the process have disclosed confidential client information to their own detriment. See, e.g. In re Skinner, 740 S.E.2d 171, (Ga. 2013) (reprimand); In re Tsamis, Comm'n File No. 2013PR00095 (Ill. 2013) (reprimand) (opinion available by searching here for “Tsamis”); (reprimand), In re Peshek, No. M.R. 23794 (Ill. 2010); Office of Lawyer Regulation v. Peshek, 798 N.W.2d 879 (Wis. 2011) (reciprocal discipline); (90-day suspension) and In re Quillinan, 20 DB Rptr. 288 (Or. 2006).
In Formal Opinion 41(2009), the Nevada State Bar Standing Committee on Ethics and Professional Responsibility delineated the reach of Rule 1.6, stating that all information relating to the representation is protected by Rule 1.6, and that unless one of the exceptions to the rule applied, lawyers may not make disclosures without the client’s informed consent. The committee also stated that under a literal reading of Rule 1.6, even a laudatory comment about a client or the client's achievement may violate the letter of the Rule, but that “common sense should be applied when interpreting the rule and that not every disclosure of innocuous information should be considered to be a violation of the Rule.”
No self-defense exception
ABA Model Rule 1.6 Confidentiality of Information contains a self-defense exception in sub-paragraph 5, allowing disclosure of otherwise confidential information:
“(5) 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.”
At first glance, this provision would seem to open the door for a lawyer to respond vigorously to a negative online review. At least one ethics committee has decided that a closer reading of this provision says it does not. In Opinion 2014-200 (2014), the Pennsylvania State Bar ethics committee opined that an online disagreement about the quality of a lawyer's services is not a “controversy” and that no “proceeding” is pending or imminent merely because a client impugns a lawyer in an online review.
Noting that the California ethics rule on confidentiality differs from the ABA Model Rules, the Los Angeles County Ethics Committee in Opinion 525 (2012) similarly found no self-defense exception in the California rules. San Francisco Ethics Op. 2014-1 substantially agrees.
Carefully consider how to reply
Some online commenters may undermine their own credibility with poorly stated arguments, bad grammar and spelling, and lack of logic. In such a situation, a lawyer should think about letting the comment slowly sink into the west, without drawing further attention to it. Some controversies will wither and die of their own accord, and it may be advisable to wait before entering a response. Still, it might be beneficial to have a few well-considered positive comments in place to offset the unpleasant one.
Connecticut Informal Opinion 2012-03 (2012) gave permission for Connecticut lawyers to seek positive reviews from clients and to direct them to applicable websites. The committee urged that lawyers cannot suggest that clients submit reviews that “contain any information that would be ‘false or misleading’” and lawyers must not give something of value to the client in exchange for submitting a review, which would violate Rule 7.2(c).
The above mentioned Pennsylvania Bar Opinion had the following suggestion for a generic response to a negative online review:
A lawyer's duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point-by-point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.
Watch what your employees post on the Web
It goes without saying that issues around online reviews should not be lightly delegated to nonlawyer staffers who may not be sensitive to the ethical constraints that apply to a lawyer’s conduct.
ABA Rule 5.3 requires a supervisory lawyer to “make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer.” See, e.g., Anderson v. Kentucky Bar Association, 262 S.W.3d 636, (Ky. 2008) (inadequate supervision of paralegal who solicited clients); In re Foster, 45 So. 3d 1026, (La. 2010) (law firm's management committee reprimanded for failing to supervise statements that nonlawyer employee put on firm's website).
Lawyers are continually warned not to sue clients for unpaid fees lest they receive a malpractice claim in response (See the July Eye on Ethics column entitled, “Sue and be Sued”). In the context of this article, the possibility or likelihood of a retaliatory angry review is one further unpleasant consequence that should be factored into the equation.
Suing the messenger, no help
Lawsuits brought by lawyers challenging their website ratings have been unsuccessful. In Browne v. Avvo Inc., 525 F. Supp.2d 1249, 24 Law. Man. Prof. Conduct 4 (W.D. Wash. 2007), two Washington State lawyers sued the ratings website Avvo in federal court. The court ruled that Avvo ratings are protected under the First Amendment as opinion, hence protected speech, and that no consumer protection claim was triggered by Avvo. In Davis v. Avvo Inc., 2012 BL 90336, (W.D. Wash. March 28, 2012), another suit against the Avvo ratings website by a Washington State lawyer qualified for anti-SLAPP protection, which allowed the defendants to collect a statutory penalty; a related tort action was dismissed.
In a back-and-forth tussle, the review website Yelp sued some California lawyers for allegedly posting false reviews that cast a positive light on the lawyers involved. (Yelp, Inc. v. McMillan Law Grip. Inc., Cal. Super. Ct., S.F., No. CGC13-533654, filed 8/20/13).
Yelp sued on the grounds of consumer deception and the state's unfair business practices act, California Business and Professions Code Section 17200, as well as Section 17500, the state false advertising law. This lawsuit followed a Feb. 13 small claims filing in San Diego by McMillan Law Group against Yelp. The law firm alleged it was coerced into entering into an advertising contract with Yelp in order to receive favorable views. McMillan was awarded $2,795. Yelp alleges that the McMillan Law Group postings include five-star consumer reviews that actually were submitted by employees at the law firm and that the purported cases referred to in the reviews never took place. Yelp claims that a circle of San Diego lawyers trade positive reviews.
Stay off the AstroTurf
“Astroturfing” is new term of art that refers to the practice of posting fake negative or positive reviews online. According to Wikipedia, astroturfing is the practice of hiding the true authors of a comment online to appear to have grassroots support. The term derives from the synthetic carpeting AstroTurf, which being synthetic has no roots at all. Such conduct has come to the attention of federal regulators. The Federal Trade Commission in August 2010 charged public relations firm Reverb Communications Inc. with violating the FTC act and engaging in deceptive practices by having its employees pose as consumers to post positive reviews of mobile gaming applications sold by the company's clients in the iTunes store. Diane Karpman, a professional responsibility specialist with Karpman & Associates in Beverly Hills, Calif., said that ethics rules prohibiting false and misleading activity may well cover false reviews. See, “Yelp Sues Firm That Sued It for Coercion, Alleging Posting of Fake Favorable Reviews,” 28 Law. Man. Prof. Conduct 206 (2013).
A lawyer who decides to respond to a negative online review should exercise great caution and should be particularly careful to avoid revealing client confidences when doing so. Sometimes, the best action is no action. As always, check your local rules of professional conduct ethics opinions and case law for further guidance. Your state or local bar association may also be able to help.