Lawyers whose clients write negative online reviews have few options to defend themselves, even when the unhappy clients lie.
Responding online to a negative review is likely to get a lawyer in trouble with the bar and may even result in suspension from practicing law.
One lawyer was reprimanded when she responded to a former client’s online criticism by writing, “I dislike it very much when my clients lose, but I cannot invent positive facts for clients when they are not there. I feel badly for him, but his own actions in beating up a female co-worker are what caused the consequences he is now so upset about.”
Another lawyer was suspended from practice for six months for disclosing information in response to online reviews, including criminal charges against clients and that a client wrote a check that bounced.
American Bar Association issues opinion on “growing issue”
The American Bar Association’s Standing Committee on Ethics and Professional Responsibility recently issued an opinion advising lawyers that the best response to negative online reviews is not to respond.
“It’s a big and growing issue,” said Brian S. Faughnan, a Memphis lawyer who specializes in attorney ethics. It’s become even more prominent, he added, “over the last five years or so, just with the prevalence of how often people turn online to find lawyers.”
Faughnan said there are “lots of lawyers whose model relies on online advertising and platforms that their ratings really matter.”
“We have become a society that puts a lot of trust in bad reviews,” said another lawyer who represents lawyers accused of ethics breaches, Eric T. Cooperstein of Minnesota. “We trust strangers more than we trust our friends.”
No disclosures without informed consent
The ABA opinion relates to its Model Rule of Professional Conduct 1.6(a) that bars lawyers from disclosing any information about a client’s representation, regardless of the source of the information, unless the client gives informed consent to disclose the information. That includes information contained in publicly filed court documents.
That means, if a client lies about an attorney in an online review, the attorney can’t respond with truthful information from court filings, or from any other source, unless the client consents to the attorney’s response.
“It essentially is a rule that draws a line and says lawyers ought not talk about client matters outside of handling those client matters unless they’ve got some good reason for doing it,” Faughnan said. He noted the rule was created long before the internet, “before it was this easy for information to be disseminated online and go viral.”
The exceptions to the rule allow attorneys to defend themselves in court and against disciplinary charges, Faughnan said. Attorneys are also allowed to disclose necessary information to collect fees.
Lawyers can sue, but probably shouldn’t
Lawyers can file defamation lawsuits against the people who write the reviews, but risk bringing media attention to the reviews, Faughnan said, and creating a bigger audience for the original criticism. And even then, lawyers may have to place the relevant details under seal in the lawsuit.
Unless a negative review is “truly going to bring an end to your practice,” Faughnan said, “it’s not a good idea to sue.”
The ABA opinion suggests just letting it go.
“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,” the opinion said.
States have their own rules
Every state has its own disciplinary system for regulating attorney behavior, and the ABA opinions are not binding. However, they are considered influential and likely to be followed at the state level.
The recent ABA opinion also notes that several states have already weighed in on the issue. “The majority reach the conclusion that, even if the online posting was made by a client, the posting of criticism does not rise to the level of a controversy that would allow a lawyer to disclose confidential information in responding.”
What can lawyers do?
Short of responding online with client information, the opinion said lawyers have some options when confronted with negative online reviews:
- Lawyers may ask the website or search engine to remove the post with the negative review. However, in making such a request, a lawyer may not disclose information about a client’s representation.
- Lawyers should consider not responding. “Any response frequently will engender further responses from the original poster. Frequently, the more activity any individual post receives, the higher the post appears in search results online.”
- Lawyers may suggest the poster and lawyer take the conversation offline. For example, the opinion states, an attorney could respond, “Please contact me by telephone so that we may discuss your concerns.” This only works if the lawyer actually intends to satisfy the poster’s concerns. If not, the lawyer risks more negative posts.
- Lawyers may contact the poster offline to respond to the criticism but may want to consult with counsel before doing so.
- Lawyers may note in an online comment that professional obligations don’t allow the lawyer to respond.
Faughnan said, with certain restrictions, attorneys may solicit reviews from happy clients, as long as the lawyer is clear that he or she is just asking for a truthful review, whether it’s good, bad or neutral. It’s not clear whether lawyers can offer clients incentives, such as fee discounts, in exchange for such reviews.
Faughnan said he would worry that seeking such a review would alert clients how important online reviews were to the lawyer, giving them ideas if they become unhappy with what happens in court.
ABA opinion called “terrible”
Cooperstein said he thinks the ABA opinion is “terrible.” He added, “I think it’s a terrible time for an opinion like this coming out” because of recent events where lies have been rampant.
On one hand, Cooperstein said, he understands and believes in the principle underlying the ABA opinion that “client confidentiality is paramount.” But, he added, “I don’t know what principle we’re protecting when we’re preventing lawyers from correcting false information posted by clients.”
Faughnan said he agrees the restrictions can be unfair. But he also agrees with the larger policy of restricting attorneys’ ability to disclose client information. Any movement to allow attorneys to respond to online reviews with client information would require a change in the underlying rule, he said.
“My struggle is I think the larger point is the correct point,” Faughnan said.
Cooperstein said he’s had attorney clients disciplined, “in part, for imprudent responses to online reviews. It’s a frequent conversation topic among lawyers.”
The details of these kinds of cases, he added, are not elaborate. A client might post an online comment saying the lawyer never returned the client’s calls or never filed a required court document. If the lawyer responds saying that’s not true, here’s what happened, the lawyer could face discipline.
Attorneys’ online reputations, he added, “are becoming more and more important…It’s a pretty sensitive issue for a lot of lawyers.”
While it may not be prudent for a lawyer to get in an online battle with a client or former client, Cooperstein said, he thinks the lawyers should have the choice. “I think lawyers should be able to use their discretion to decide how to respond.”
Contact Elaine Silvestrini at Elaine@legalexaminer.com. Follow her on Twitter at @WriterElaineS.