Here’s a newsflash: you can’t defend yourself against a client’s bad online review by revealing client confidential information, as the ABA Ethics Committee reminded us in an opinion last week.
We’ve recently reported on the Oklahoma lawyer who was disciplined for his rogue consultant’s conduct in connection with an online review; a New Jersey lawyer who was disciplined for responding to a client’s online review by posting a bad Yelp review of his own, which revealed client information; and a Massachusetts lawyer who was disciplined for disclosing client information on Facebook.
If these cautionary tales were not enough, the ABA now has removed all doubt, with its guidance that the “self-defense” exception to the duty of confidentiality does not support revealing client information in response to an online review.
Model Rule 1.6(a), adopted in some form in all U.S. jurisdictions, bars disclosing “information relating to the representation of a client.” That’s a very broad prohibition, and of course covers much more territory than just information that would come under the attorney-client privilege.
What the ABA has now made crystal clear is its view that the confidentiality exception expressed in Model Rule 1.6(b)(5) does not apply here. The “self-defense” exception covers three situations that can entitle you to disclose otherwise-confidential information:
- establishing a claim or defense in a lawyer-client controversy;
- establishing a defense to a criminal or civil charge based on conduct in which the client was involved; and
- responding to allegations in “any proceeding concerning the lawyer’s representation of the client.”
In its latest Opinion 496, however, the ABA flatly rules out applying these exceptions to permit any degree of confidential information disclosure in response to online reviews: “A negative online review, alone, does not meet the requirements of permissible disclosure in self-defense under Model Rule 1.6(b)(5) and, even if it did, an online response that discloses information relating to a client’s representation or that would lead to discovery of confidential information would exceed any disclosure permitted under the Rule.”
The ABA specifically shot down any notion that the world of online reviews would fall into the third, catch-all exception for “any proceeding concerning” representing a client, saying that “online criticism is not a ‘proceeding,’ in any sense of that word, to allow disclosure under [that] exception…”
What’s a lawyer to do?
Instead of firing back and risking your license, the ABA has several good recommendations on what you can do:
- consider not responding — after all, doing so “may draw more attention to [the bad review] and invite further response from an already unhappy critic.”
- ask the website or search engine to take down the adverse information;
- if you do choose to respond online, don’t disclose “information that relates to a client matter, or that could reasonably lead to the discovery of confidential information by another.”
- post an invitation for your critic to contact you privately to resolve the matter;
- post a response saying that “professional considerations preclude a response.”
Any of these would be a better alternative than responding in the numerous ways that have gotten lawyers into trouble.
Commentators such as Prof. Alberto Bernabe, over at the Professional Responsibility Blog, have noted that the latest opinion does not break any new ground. Nonetheless, it is a valuable reminder about avoiding risky online behavior, with some good how-tos.