We’ve noted before that just because information relating to your representation of a client might be publicly available, your duty of confidentiality means that you can’t disclose it if it is not “generally known.” The two concepts — public availability and being “generally known” — are not the same, as a New Jersey lawyer learned earlier this month when the state supreme court imposed a one-year suspension in a disciplinary case that (among other things) involved a Yelp review.
“Good for the goose…”
According to the disciplinary board’s decision, the lawyer represented a client in a child custody matter and achieved a “seemingly good result” via settlement. Over a year later, however, the client posted “poor reviews” of the lawyer’s services on several websites. In turn, as set out in the board decision, the lawyer posted a review of the client’s massage business on Yelp, where he said that the client
is a convicted felon for fleeing the state with children. A wonderful parent. Additionally, she has been convicted of shoplifting from a supermarket. Hide your wallets well during a massage. Ooops, almost forgot about the DWI conviction. Well maybe a couple of beers during a massage would be nice.
After the client complained, the lawyer sought to explain his actions, according to the board decision. He admitted he was “very upset” by the client’s negative Yelp rating of his practice, and felt that his response was justified because “what was good for the goose was good for the gander.”
The lawyer conceded that his conduct regarding the client “rating was [not] my finest moment,” said the board. The lawyer contended , however, that the conduct was not unethical because his disclosures “were public information and I did not violate attorney client privilege.”
Public information vs. generally known
Model Rule 1.9(c), like its New Jersey analogue, prohibits using “information relating to the representation” to the disadvantage of a former client with only narrow exceptions, “or when the information has become generally known.”
Here, said the board, the information in the Yelp review the lawyer posted related to the former representation, and the information had not become generally known. The board cited New Jersey state and federal case authority and the ABA’s Formal Opinion No. 479 (2017).
As the ABA advised, “the phrase ‘generally known’ means much more than publicly available or accessible. It means that the information has already received widespread publicity.” Merely being “of public record” does not mean that the information is “generally known” when it is not “within the basic understanding and knowledge of the public,” said the New Jersey district court in a 2006 opinion. And in a previous disciplinary opinion, the state supreme court had found that subpoenaed records from police departments had not become “generally known.”
On these bases, the state supreme court adopted the board’s decision finding a violation of Rule 1.9, and suspended the lawyer for a year, based on that plus other misconduct.
Retaliatory reviews on social media seem to be a recurrent ethical trouble spot for lawyers. But you might be tempted to use or disclose client information in other more-benign-seeming settings — like at a social gathering (or Zoom hangout), where talking shop might lead to dishing the dirt on a matter because “after all, it’s ‘of public record.'” In situations like that, the ethics rules should make you think twice.
Dan Bressler’s Risk Blog and The Professional Responsibility Blog also mention this case.