Long time readers of this blog might remember a few posts on whether an attorney can reply to negative online reviews. All sources I have seen agree that lawyers can respond to negative reviews but that they can not disclose confidential information about a client in the process. (Go here for a recent post which includes links to the older ones. Here is link to an ABA Opinion.)
I am writing about this today again because I just found out that at the end of last year, the Supreme Court of Arizona Attorney Ethics Advisory Committee issued an ethics opinion that contradicts what all those sources have opined on the issue.
This new opinion concludes that
In the context of an unfavorable online comment or review by a former client, informed consent is unlikely, meaning that disclosure of confidential information will be improper unless permitted by the only exception potentially applicable to this scenario, which is found under Rule 1.6(d)(4). Under Rule 1.6(d)(4), a lawyer may reveal confidential information relating to the representation of a client to the extent the lawyer reasonably believes necessary "to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client." Comment 12 to Rule 1.6 further provides that, where a legal claim or disciplinary charge alleges complicity of the lawyer in a former client's conduct or other misconduct involving representation of the former client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. Comment 12 also states that the lawyer's right to respond arises when an assertion of such complicity has been made; section (d)(4) does not require the lawyer to wait for an action that charges such complicity to commence. Rather, the defense may be established by responding directly to a third party who has made such an assertion.
The question thus becomes whether negative online comments establish a "controversy," and, if so, whether disclosure of confidential information can ever be considered reasonably necessary to establish a defense. Negative online comments do establish a controversy between a lawyer and client the informality of an online critique is not relevant. Furthermore, disclosure of confidential information may be considered reasonably necessary to establish a defense. A client may not use confidentiality as both a sword and a shield in a formal legal or disciplinary proceeding. Similarly, the client should not be able to make public accusation of serious misconduct against their former lawyer and then invoke the lawyer's duty of confidentiality to prevent the lawyer from making an effective response or to punish the lawyer for having done so. An individual who elects to try their former lawyer in the court of public opinion rather than before a tribunal and makes serious accusations that put confidential information at issue assumes the risk that such information will be disclosed in the lawyer's response. Thus, untrue accusations of misconduct should be countered.
Go here and scroll down to read Supreme Court of Arizona Attorney Ethics Advisory Committee Ethics Opinion File No. EO-19-0010 (December, 2022).
Thank you to Victor Salas for sending me a copy of the opinion!
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