Proposed Ethics Opinion Addresses Online Reviews

You don’t have to passively accept a negative online review that you think is untrue or unfair – but if you choose to respond, make sure you do so in a “proportional and restrained” manner.

Even more importantly: be careful not to disclose any confidential information.

Those directives are from NC State Bar Proposed 2020 Formal Ethics Opinion 1, which was released in January 2020.

Read Proposed 2020 Formal Ethics Opinion 1 here.

Click here to comment on this proposed opinion.

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Proposed 2020 Formal Ethics Opinion 1 responds to the following inquiry: “Lawyer’s former client posted a negative review of Lawyer’s representation on a consumer rating website. Lawyer believes that the former client’s comments are false. Lawyer believes that certain information in Lawyer’s possession about the representation would rebut the negative allegations. The information in question constitutes confidential information as defined by Rule 1.6(a). In what manner may Lawyer publicly respond to the former client’s negative online review?

Following are highlights from the opinion.

• Proportional and restrained response. “In response to the former client’s negative online review, Lawyer may post a proportional and restrained response that does not reveal any confidential information. The protection of client confidences is one of the most significant responsibilities imposed on a lawyer. Rule 1.6(a) of the Rules of Professional Conduct provides that a lawyer may not reveal information acquired during the professional relationship with a client unless (1) the client gives informed consent, (2) the disclosure is impliedly authorized, or (3) one of the exceptions set out in Rule 1.6(b) applies. Rule 1.6(a) applies to all information acquired during the representation. Under Rule 1.9(c), a lawyer is generally prohibited from using or revealing confidential information of a former client. Therefore, Lawyer may not reveal confidential information in response to the negative online review unless the former client consents or an exception set out in Rule 1.6(b) applies.”
• The “self-defense” exception. “No exception in Rule 1.6(b) allows Lawyer to reveal confidential information in response to a former client’s negative review. The only exception potentially applicable to the facts presented is the ‘self-defense exception’ set out in Rule 1.6(b)(6). Rule 1.6(b)(6) permits a lawyer to reveal information to the extent the lawyer reasonably believes necessary: [T]o 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.”
• When does the self-defense exception apply? “Where a legal claim or disciplinary charge alleges complicity of the lawyer in a client’s conduct or other misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client. Such a charge can arise in a civil, criminal, disciplinary, or other proceeding and can be based on a wrong allegedly committed by the lawyer against the client or on a wrong alleged by a third person ….”
• A negative review does not trigger the self-defense exception. “An online negative review is not a legal claim or disciplinary charge arising in a civil, criminal, disciplinary, or other proceeding.”
• Proposed generic response. “The Pennsylvania State Bar Ethics Committee proposes the following 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.”
• The bottom line. “Lawyer may post an online response to the former client’s negative online review provided the response is proportional and restrained and does not contain any confidential client information.”

Jay Reeves practiced law in North Carolina and South Carolina. Today he helps lawyers and firms succeed through marketing, work-life balance and reclaiming passion for what they do. He is available for consultations, retreats and presentations (www.yourlawlife.com). Contact jay@yourlawlife.com or 919-619-2441 to learn how Jay can help your practice.