What’s a lawyer to do when someone posts a critical review online? According to ABA Formal Opinion 496, the answer is, “probably nothing.”
In early 2021, the ABA Standing Committee on Ethics and Professional Responsibility addressed this issue and noted that:
“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.”
But negative reviews are often unfair and misleading, and perhaps outright false. So why must we avoid responding?
Model Rule of Professional Conduct 1.6 is similar to the Alabama and Tennessee Rules governing the duty of Confidentiality. Rule 1.6(a) prohibits us from disclosing information relating to any client’s representation or information that could reasonably lead to the discovery of confidential information by another. While Model Rule 1.6(b)(5) provides an exception for permissible disclosure for “self-defense”, a negative online review, alone, does not qualify because it is not a “proceeding” and responding online is not necessary to establish a claim or defense for the lawyer, because a negative review, alone, does not rise to the level of a “controversy” between lawyer and client within the meaning of Rule 1.6(b).
Other than biting your tongue, then, what are your options when someone posts criticism?
1. Request that the website or search engine host remove the post for a specific reason.
For example, the lawyer can state that the information is not accurate or the lawyer hasn’t represented the poster (however, the lawyer is still obligated not to disclose confidential information).
2. Reach out to the client or former client to privately discuss the matter.
3. Respond publicly only to invite the complainer to contact you privately to resolve the matter, or to state that professional considerations preclude an online response.
For example: “Please contact me by telephone so that we can discuss your concerns” or “Professional obligations do not allow me to respond as I would wish.”
Even when the criticism comes from someone who was never a client, use care not to disclose any information “related to the client or former client’s representation without the client or former client’s informed consent.” Why?
Because even a general disclaimer that the events aren’t portrayed accurately may provide too much information – it indicates that the lawyer was, in fact, involved in the events, and thus may disclose confidential information.