January 18, 2021
With the increasing use of websites to contact lawyers and to provide feedback about their work, lawyers need guidance on how to address online criticism and negative reviews without violating duties in the rules of professional conduct. A number of jurisdictions have issued ethics opinions on the subject already, and now the ABA Standing Committee on Ethics and Professional Responsibility has too.
The Committee's Formal Opinion No. 496 can be found here. As usual it starts with a short summary of the full opinion. It reads:
Lawyers are regularly targets of online criticism and negative reviews. Model Rule of Professional Conduct 1.6(a) prohibits lawyers from disclosing information relating to any client’s representation or information that could reasonably lead to the discovery of confidential information by another. 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. 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. Lawyers may request that the website or search engine host remove the information. Lawyers who choose to respond online must not disclose information that relates to a client matter, or that could reasonably lead to the discovery of confidential information by another, in the response. Lawyers may post an invitation to contact the lawyer privately to resolve the matter. Another permissible online response would be to indicate that professional considerations preclude a response.
As you can see, the opinion simply explains and expands on a general principle that we knew already: a lawyer can disclose confidential information if allowed by one of the exceptions to the rule and only to the extent reasonably necessary to advance the policy behind the exception. What the opinion makes clear is that responding to a negative review is not justified by the exception to the rule that allows a lawyer to disclose confidential information in order to defend him/herself in a legal dispute.