As with all industries facing increasingly vocal consumers enabled by numerous online outlets to comment on products and services, lawyers regularly find themselves targets of negative reviews or other online criticism. However, lawyers are uniquely constrained in their ability to respond to such criticism by applicable ethical rules. The American Bar Association (“ABA”) recently opined that lawyers responding publicly online “must not disclose information that relates to a client matter, or that could reasonably lead to the discovery of confidential information by another.” This is a step further than a D.C. Legal Ethics Opinion that permits limited revelations of client confidences in response to online allegations. The difference is attributable to a D.C. departure from the ABA Model Rules, yet the strict ABA guidance still serves as a reminder to D.C. lawyers, often barred in multiple jurisdictions, to tread ever carefully online.
ABA Committee Concludes Attorneys May Not Reveal Client Confidences in Response to Online Criticism
In January 2021 the ABA Standing Committee on Ethics and Professional Responsibility (the “Committee”) issued Formal Opinion 496 to address lawyers’ ability to ethically respond to public online negative reviews, opinions, or other comments on their legal services. The Committee identified the primary ethical concern facing lawyers in this situation to be maintaining the confidentiality of client information. ABA Model Rule of Professional Conduct 1.6(a) prohibits a lawyer from revealing information related to a client’s representation without informed consent or implied authorization in order to carry out the representation, unless one of several exceptions set out in subsection 1.6(b) apply. The only potentially applicable exception is 1.6(b)(5), which allows disclosure “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based on conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” Since online criticism is not part of a proceeding, a criminal charge, or a civil claim, the Committee addressed the question of whether online criticism rose to the level of “a controversy between the lawyer and the client.” The Committee found that an online review is not a controversy within the meaning of the rule due to its informal nature, and therefore a lawyer is not permitted to disclose confidential client information in response. The Committee explained further, that even in response to an online posting rising to the level of controversy, a public posting revealing client confidences would still be impermissible. Rather, Rule 1.6’s explanatory comments set forth that “Paragraph (b) permits disclosure only to the extent that the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes stated,” and only allows a response directly to the accuser.
District of Columbia Attorneys are Permitted to Reveal Limited Confidences When Responding to Specific Allegations Online
In November of 2016, the D.C. Bar published Legal Ethics Opinion 370 titled “Social Media I: Marketing and Personal Use,” which included a section: “Attorneys may, with caution, respond to comments or online reviews from clients.” That opinion also focused on the confidentiality requirements of Rule 1.6, and cautioned that while attorneys may respond to negative reviews or comments posted by clients online, the applicable exceptions to Rule 1.6 do not provide a complete safe harbor to disclose client confidences. D.C.’s Rule 1.6(e)(3) permits a lawyer to reveal client confidences or secrets in order to defend against a formal claim or charge, “or to the extent reasonably necessary to respond to specific allegations made by the client concerning the lawyer’s representation of the client.” Thus, unlike the ABA Model Rules, D.C.’s exception to Rule 1.6 is not restricted to defending against allegations as part of a “controversy” between the lawyer and client or in any particular forum. The D.C. Bar opinion noted that the ability to reveal confidences under this exception is limited to “specific” client allegations concerning the representation. It referred to Comment  of the Rule, which explicitly excludes general criticisms from those allegations to which an attorney may respond by revealing confidences. The opinion further stressed the Rule’s language that even when permitted by the exception, disclosures “should be no greater than the lawyer reasonably believes are necessary.” Importantly, this exception only applies to allegations made by the client, thus the D.C. Bar concluded that it does not allow disclosing client confidences in response to any allegation made in an online posting by, for example, opposing counsel, or any other third-party. This Section of D.C. Lethal Ethics Opinion 370 concludes that other jurisdictions have taken more restrictive views on responding to online criticism, and reminds D.C. attorneys admitted elsewhere that they may be subject to the disciplinary authority of their other jurisdictions, in addition to D.C. This caution is well taken by a large number of D.C. attorneys also licensed in other jurisdictions, given the ABA’s more restrictive formal opinion. Notably, neighboring jurisdictions Maryland and Virginia have both substantially adopted the more restrictive language of ABA Model Rule 1.6(b)(5). See Virginia Rule 1.6(b)(2); Maryland Rule 19-301.6(b)(5).
Attorneys Cautioned to Say Little, if Anything, in Response to Online Criticism
Attorneys facing online criticism, particularly from a former client, should carefully consider their response, and whether not responding would be more prudent. The ABA Opinion offers advice on best practices, suggesting that lawyers contact their clients privately, or respond online with a request that the client do the same in order to discuss the concerns. Another permissible response to a negative post by a client or third party would be noting that professional obligations prevent the lawyer from responding. When a third party is the author of the online criticism, the lawyer may indicate that the poster is not a client or former client. However, the Committee cautioned against taking this further, as even a general disclaimer could reveal client confidences about the representation. In such circumstances, the lawyer may wish to seek informed client consent to respond more fully, particularly where a response may also be in the client’s interests. Lawyers should discuss their proposed response with their client or former client. In all instances of online criticism, a lawyer should strongly consider not responding at all. While there may be a strong instinct to rebut statements that are untrue or perceived as unfair, a response could end up drawing more attention to the negative online post, or else further provoke the unhappy client, thus compounding the attention and ensuing ethical dilemma. As the ABA Committee noted, online posts with more activity move higher up in the search results; thus not responding could speed up the aging dormancy of the post, which would ultimately cause it to move down in search result ranking and hide it from immediate view.
Seek Guidance from the Ethics Attorneys at Eccleston & Wolf
Eccleston & Wolf attorneys have extensive experience in ethical matters facing attorneys in the District of Columbia, Maryland, and Virginia. They practice before the D.C. Board on Professional Responsibility, Maryland Attorney Grievance Commission and the Virginia Standing Committee on Lawyer Discipline; and regularly deal with Bar or Disciplinary counsel in all three jurisdictions. If you have been targeted by online criticism relating to a client representation that you believe necessitates a response, consider consulting with an Eccleston & Wolf attorney to develop an effective strategy.