Hilary Gerzhoy, Vice-Chair of the Legal Ethics and Malpractice Group at Harris, Wiltshire & Grannis LLP, discusses the American Bar Associations's Opinion 496 in relation to formal ethics of responses to online criticism...
On January 13, 2021, the American Bar Association (ABA) Standing Committee on Ethics and Professional Responsibility published ABA Opinion 496, “Responding to Online Criticism,” which delineates the ethical restrictions imposed on lawyers who wish to respond to unflattering online reviews. Recognizing the need to adapt to a changing world increasingly characterized by online interactions, the Committee lays out the many limitations on a lawyer hoping to clear her online reputation.?
The critical impediment to responding to online criticism is the need to maintain client confidences consistent with ABA Model Rule 1.6, which “prohibits a lawyer’s voluntary disclosure of any information that relates to a client’s representation, whatever its source, without the client’s informed consent, implied authorization to disclose, or application of an exception to the general rule.” A lawyer’s obligation to maintain the confidentiality of her client’s information extends far beyond the attorney-client privilege—“[t]he confidentiality rule . . . applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.” Maintaining confidentiality in the absence of a client’s informed consent is “[a] fundamental principle in the client-lawyer relationship.”?Without it, the “trust that is the hallmark of the client-lawyer relationship” is eroded and a client may be reluctant to “communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.” ?
Model Rule 1.6(b) lays out the seven instances in which a lawyer is permitted to reveal information relating to her client’s representation without the client’s informed consent or implied authorization. In Opinion 496, the Committee concludes that the only exception that might enable a lawyer to respond to online criticism is part one of Rule 1.6(b)(5) which holds that a lawyer is permitted to reveal information relating to a client representation “to the extent the lawyer reasonably believes necessary to . . . to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client.” ?
Can online criticism “rise to the level of a controversy between a lawyer and client”? And, if it does, is responding to such criticism “reasonably necessary to defend against it”? The Committee answers both questions with a resounding “no,” stating that, “[a] negative online review, alone, does not meet the requirements for permissible disclosure under Model Rule 1.6(b)(5) and, even if it did, an online response would exceed any disclosure permitted under the Rule.” Quoting New York State Bar Association Ethics Opinion 1032, the Committee tells the critiqued lawyer to buck up—online criticism is “an inevitable incident of the practice of a public profession, and may even contribute to the body of knowledge available about lawyers for prospective clients seeking legal advice.”
Opinion 496 calls to mind ABA Formal Ethics Opinion 480, which concluded that lawyers cannot blog about information relating to a client’s representation without client consent because that information is confidential under Rule 1.6(a). That is true even if the lawyer only blogs about the information contained in the public record.?
In Hunter v. Virginia State Bar, the Virginia Supreme Court held the opposite, noting that a lawyer’s duty to maintain client confidences pursuant to Virginia Rule 1.6(a) must give way to his First Amendment right to blog about non-privileged information. The court held, “To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.” However, a lawyer wishing to rely on Hunter as justification for responding to online criticism does so at her peril. The ABA Committee “regards Hunter as limited to its facts” and notes that its holding has been criticized.?
So, what should you do if you are on the receiving end of online criticism? The Committee counsels restraint: a lawyer criticized online should ignore the post. If a lawyer is unable to do that, the lawyer has a limited number of options. First, the lawyer can respond directly to a client or former client, but in doing so cannot disclose any information online that relates to that client’s representation. Instead, the lawyer should invite the client or former client to contact the lawyer privately to resolve the issue (discount on fees, anyone?), or respond publicly indicating that her “professional considerations preclude a response” or her “professional obligations do not allow me to respond as I would wish.”?
If the poster is neither a client nor a former client, the lawyer may publicly respond noting that the poster “is not a client or former client, as the lawyer owes no ethical duties to the person posting in that circumstance.” But take care to ensure the poster is not a former opposing party, opposing counsel, or a former client’s friend or family member, in which case a lawyer cannot disclose any information relating to the client or former client’s representation in the absence of informed consent. Should the poster fall into the aforementioned camp, a lawyer can respond provided she has obtained the client or former client’s informed consent.
But tread lightly. Even something as seemingly innocuous as a general disclaimer that “the events are not accurately portrayed” by the poster “may reveal that the lawyer was involved in the events mentioned, which could disclose confidential client information.” Should your attempt at a rebuttal reveal any confidential client information, you’ll have a much bigger problem than an unflattering Yelp review. Sanctions for doing so have spanned from suspensions of sixty days (as held in Illinois Disciplinary Board v. Peshek 2010) to eighteen months (as held in People v. Underhill 2015).
ABA opinions are not binding authority on states. Instead, each state’s Rules of Professional Conduct and accompanying opinions govern permissible conduct. In Opinion 496, the Committee highlights two jurisdictions—D.C. and Colorado—that provide greater refuge for a lawyer attempting to clear her name online.?
In Colorado Ethics Opinion 136, the Colorado Bar Association found that a lawyer can disclose some limited confidential information related to a representation “if the client’s online criticisms have created a controversy between the lawyer and the client and the lawyer’s disclosures are necessary for the lawyer to assert a claim or mount a defense in that controversy.” In other words, the Opinion assumes, contrary to the ABA’s position, that online criticism alone can create a “controversy.”?
A D.C. lawyer too has greater latitude in responding to online criticism. In D.C. Ethics Opinion 370, the D.C. Bar Legal Ethics Committee stated that a lawyer “may respond to negative online reviews or comments from clients . . . to the extent reasonably necessary to respond to specific allegations by the client concerning the lawyer’s representation of the client.” In contrast to ABA Model Rule 1.6, D.C. Rule 1.6(e)(3) “authorizes lawyers to respond to a client’s ‘specific allegations’ concerning the lawyer’s representation even if those allegations are not made in a ‘proceeding.’” Even in D.C., however, “general” allegations by a client or former client against a lawyer are insufficient to trigger the “only potentially applicable self-defense exception.”.?
If a D.C. lawyer wishes to respond to online criticism that rises to the level of the D.C. Rule 1.6(e)(3) self-defense exception, she should proceed with caution if she is barred in multiple jurisdictions. New York, for example, allows a lawyer to reveal confidential client information in response to online criticism only “to the extent that the lawyer reasonably believes necessary . . .? to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct.” Accordingly, the New York and D.C.-barred lawyer wishing to respond to online criticism must do a choice of law analysis before posting that responsive tweet. For example, if she wished to reveal confidential client information whose “predominant effect” would be felt in New York, that lawyer’s D.C. bar status will not shield her from being subject to New York’s disciplinary authority.?
The takeaway: before posting that response, check your jurisdiction’s Rules of Professional Conduct and accompanying opinions, and when in doubt, don’t.?
Hilary Gerzhoy is Vice-Chair of the Legal Ethics and Malpractice Group at Harris, Wiltshire & Grannis LLP where she represents lawyers and law firms on professional responsibility and ethics matters, including malpractice and disciplinary investigations and prosecutions. She serves on the D.C. Bar Rules of Professional Conduct Review Committee which reviews the Rules of Professional Conduct for possible revisions and amendments.?
Suggested Citation: Hilary Gerzhoy, ABA Opinion 496: How [Not] To Respond to Online Criticism, JURIST – Professional Commentary, January 28, 2021, http://www.itbkb.cn/commentary/2021/01/hilary-gerzhoy-aba-496-criticism/.
This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at firstname.lastname@example.org.
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