R-26
February 25, 2022
SYLLABUS
A lawyer may not disclose client confidences or secrets in responding to negative online reviews as such disclosure would violate MRPC 1.6(b). The exception under MRPC 1.6(c)(5) for responding to an accusation of wrongful conduct does not apply to negative online reviews.
References: MRPC 1.6(a), (b), and (c); RI-77; ABA Formal 496
With the increased use of online reviews, lawyers are more often becoming the target of negative comments, some of which may be unfair, incomplete, or even defamatory. As a result, lawyers are faced with the issue of whether to respond, and, if so, how to respond in a manner consistent with their ethical obligations
MRPC 1.6 is implicated in this situation. Except as permitted by the exceptions under MRPC 1.6(c), MRPC 1.6(b) prohibits the disclosure of a client’s confidences and secrets or using a confidence or secret of a client to the disadvantage of a client.
Virtually any response to online criticism is going to implicate either client confidences or secrets that are protected by MRPC 1.6(b). While confidences referred to under MRPC 1.6 address attorney-client privilege and attorney work product, raising questions of law outside the scope of the jurisdiction of this committee, secrets protected by MRPC 1.6 are considerably broader. In this regard, MRPC 1.6(a) defines “secrets” as information gained through the professional relationship that the client “… has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” In view of MRPC 1.6(a) and the definition of secrets, a response by a lawyer to a negative review that provides more information than an apology or a request to contact the lawyer to communicate in private may instead disclose confidences or secrets in violation of MRPC 1.6.
MRPC 1.6(c)(5) provides no defense to the conduct in question. The Rule permits disclosure of client confidences or secrets in relevant part, “... to defend the lawyer or the lawyer’s employees or associates against an accusation of wrongful conduct.” The commentary to MRPC 1.6 makes clear that the exceptions to the confidentiality rule are intended to be limited. In general, the interests of the lawyer are sacrificed in favor of preserving the client’s confidences, even when the client’s purpose is wrongful. The commentary further suggests a “legal claim or disciplinary charge” should ordinarily be a predicate to the application of this exception. Therefore, the “accusation of wrongful conduct” provision would generally not apply to negative online reviews. To permit a public accusation of wrongful conduct to fall within the exception would broaden the scope to a degree not contemplated in the rules.
The commentary to MRPC 1.6 provides another limiting principle as well. The comment makes clear that even when disclosure is permitted, it should be limited to those persons who need to know it. A public response to a negative comment by its nature will be visible to an audience broader than is reasonably necessary.
This view of the limits on responding to negative reviews is in accordance with the majority of other jurisdictions that have considered the issue. The ABA has reached the same conclusion in Formal Opinion 496, finding that (1) a negative online review is not sufficient to implicate the exception under ABA Rule 1.6 and (2) that the response will not be reasonably necessary to respond to the negative review. The Iowa State Bar Association has favorably noted the ABA opinion and explained that the Iowa Supreme Court has instructed the ISBA to rely on the opinions of the ABA.1 The Missouri Bar Association has reached the same conclusion, noting that the lawyer responding to a negative review is also permitted to acknowledge their professional obligations with regard to disclosure.2 The Pennsylvania Bar Association has reached much the same conclusion.3 The New York State Bar Association has also agreed, finding that online criticism by a client on a rating site was insufficient to trigger the “self-defense" exception to confidentiality where there is no actual or threatened proceeding against the lawyer.4 The New Jersey Bar Association reached a similar conclusion, noting that a lawyer could express their disagreement with facts presented by the client and could respond with information that is “generally known”5 consistent with state ethics rules.6
On the same rationale courts that have examined this issue have found violations of MRPC 1.6. The Oregon Supreme Court recently upheld the reprimand of an attorney who responded to negative online reviews posted by a disgruntled client. In doing so, the Court found the lawyer to have breached Oregon Rule 1.6 and further concluded that the self-defense exception did not apply.7 And in People v. James C. Underhill Jr., the Colorado Supreme Court approved the discipline against an attorney for publicly shaming his clients by disclosing highly sensitive and confidential information through online postings in response to negative online reviews.8
As did ABA Formal Opinion 496, this committee disagrees with Colorado Ethics Committee Opinion 136, which held that if the online criticism rises to the level of a controversy between lawyer and client, the lawyer may ethically disclose limited information. The problem with this analysis is that it does not properly limit the disclosure to the appropriate audience. This committee also finds District of Columbia Ethics Opinion 370 distinguishable because of the unique language in DC’s version of Rule 1.6, which expressly contemplates accusations by a client outside of the formal proceeding context triggering the 1.6(c) exception.9
Notwithstanding these restrictions, there are permissible responses that do not implicate the secrets and confidences disclosure limitations under MRPC 1.6. However, the committee urges lawyers proceed with caution noting that any well intentioned and otherwise permissible response to negative criticism can quickly devolve into an online repartee that could implicate MRPC 1.6. In addition, it should be noted that responding to the criticism itself may draw even more unwanted attention to the original accusations. A lawyer can respond to the criticism by asking the client to contact the lawyer directly to attempt to resolve the concerns raised. A lawyer could state their disagreement with the allegations levied by the client and further respond by stating that their professional ethics obligations prevent them from responding to online criticism in a public forum.10
Some examples of appropriate responses for various scenarios are as follows:11
- All Scenarios:
- If the post is false or defamatory, request that the post be removed by the site.12
- Scenario: An online review by the client criticizing the work of the attorney or firm.
- Acceptable Response: Provide a generic response to take the conversation offline such as “[Law firm name] takes pride in providing our clients with effective representation. We are sorry that you are unhappy. Please contact me or my office by telephone so that we may discuss your concerns.”
- Acceptable Response: “[Law firm name] provides our clients with effective, zealous representation. We are sorry that you are unhappy. Our firm takes our clients’ confidentiality seriously and, therefore, we will not respond to the allegations in this post but encourage the poster to contact us directly.”13
- • Scenario: An opposing party, not the client, reviews the work conducted by the attorney or the firm.14
- Acceptable Response: “[Law firm name] provides our clients with effective, zealous representation. Our duty to our clients is our utmost priority. If you have concerns regarding your case, please contact the attorney who represented you.”
- • Scenario: Random persons who were not part of the case post reviews of the attorney or firm.
- Acceptable Response: “[Law firm name] provides our clients with effective, zealous representation15 and our duty to our clients is our utmost priority. As you were not involved directly in any matters handled by this firm, please contact our office directly so that we may discuss your concerns.”
ABA Opinion 496 advises that a lawyer who leaves these or a similar response, but does not actually intend or “attempt to assuage the person’s concerns, risks additional negative posts.”16 The lawyer must be cautious not to disclose information “related to the client or the former client’s representation without the client or former client’s informed consent[,]”17 even if the individual who posted the negative comment is not a current or former client. This is because “[e]ven a general disclaimer that the events are not accurately portrayed may reveal that the lawyer was involved in the events mentioned, which could disclose confidential information.”18 These examples are not exhaustive but may serve as a framework for lawyers in these situations.
For the reasons expressed, we conclude that a lawyer generally may not disclose client secrets or confidences in responding to negative online reviews pursuant to MRPC 1.6(b), that the exceptions under MRPC 1.6(c) are usually not implicated in these situations, and lawyers should carefully consider the wisdom of responding at all.
1 Zach Zuber, ABA Releases New Ethics Opinion On Responding to Negative Online Reviews, Iowa State Bar Assoc.(Jan. 20, 2021).
2 Mo. Bar Informal Op. 2018-08 (2018).
3 Pa. Bar Ass’n Legal Ethics & Prof’l Responsibility Comm. Op. 2014-200 (2014).
4 N.Y. State Bar Ass’n Comm. on Prof’l Ethics Op. 1032 (2014).
5 N.J. Advisory Comm. on Prof’l Ethics Op. 738 (2020); see footnote 1.
6 N.J. Advisory Comm. on Prof’l Ethics Op. 738 (2020).
7 In re: Conry OSB 18-104 (Or. Sup Ct. 2022)
8 15-PDJ-040 (August 12, 2015).
9 D.C. Rule 1.6(e), which states: “A lawyer may use or reveal client confidences or secrets: (3) to the extent reasonably necessary to establish a defense to a criminal charge, disciplinary charge, or civil claim, formally instituted against the lawyer, based upon conduct in which the client was involved, or to the extent reasonably necessary to respond to specific allegations by the client concerning the lawyer’s representation of the client.”
10 See note 3 supra.
11 No response is always appropriate.
12 If the post is defamatory and not removed from the site, the lawyer must still abide by the restrictions of MRPC 1.6. To address the defamatory post, lawyers may pursue any legal remedies that are available to them. Statements that are defamatory are questions of law and are beyond the scope of the jurisdiction of this committee.
13 Id.
14 “MRPC 1.6 prohibits even the disclosure of a client's identity if the disclosure would be ‘embarrassing’ or would ‘be likely to be detrimental’ to the client." Ethics Opinion RI-77.
15 This is a good place to include your firm’s mission or other language used in your marketing materials.
16 American Bar Assoc., Responding to Online Criticism, Formal Op. 496 (Jan. 13, 2021).
17 Id.
18 Id.