Like most ethics lawyers, I get questions about how to respond to online criticism fairly often. Of course, lawyers have always endured criticism, but until relatively recently, the comments were made around water coolers and on the courthouse steps, and maybe in a grievance filing. Newspaper editors generally didn’t publish letters about attorneys who weren’t otherwise public figures. Now, however, everyone has a platform and anyone can post a scathing review about anyone for any reason.
To that end, an interesting discipline case came out of Oregon today. (h/t to my nerd friend Trish Rich for Tweeting about this.) This case involved a lawyer who responded to online criticism by a former client, in part by revealing information considered confidential (including information about a prior criminal conviction) under Oregon’s version of Model Rule 1.6.
These versions of the Rules (as well as Wisconsin’s) permit lawyers to reveal information they reasonably believe is necessary “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 upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client[.]”
Online criticism, of course, is not a “proceeding”—lawyers are free to reveal what they need to reveal to defend themselves in malpractice, grievance, or fee disputes. But is it a “controversy?” Somewhat surprisingly (in my Wisconsin-trained mind, as I will explain below), the Oregon court did not resolve the question, but assumed for the sake of the opinion that it was a “controversy,” but that lawyer did not “reasonably believe” revealing the information was necessary to establish his defense. The court imposed a public reprimand (a step down from the 30-day suspension originally imposed by a disciplinary panel), finding that given this was a case of first impression in a rapidly evolving field, a suspension was too harsh. (The opinion itself is in-the-weeds/wonky and is worth a read, if you like in the weeds/wonky as I do.)
Here in Wisconsin, I don’t think a similar case would result in such an in-depth analysis; the conclusion by our Court (or by the Office of Lawyer Regulation in making a charging decision) would simply be no, it’s not a “controversy” giving rise to any exception, and even if it was, . And here, the fact of the client’s identity is considered confidential under SCR 20:1.6, as a 2017 formal opinion clarified. There may be situations in which the client has impliedly authorized a lawyer to reveal their identity and the fact of representation (filing a notice of retainer in a court, for instance) , but responding to online criticism isn’t one of them. A recent ABA Formal Opinion echoes this view (as do a majority of jurisdictions that have weighed in), and concludes that a response that reveals any client information may run afoul of Rule 1.6.
Note that the analysis for responding to online criticism from a non-client is a little different—lawyers don’t owe a duty of confidentiality to someone who was never a client. It’s fine to point out in response that the poster was never a client; that said, if the poster was an opposing party or concerned member of the public and was commenting about an actual case, you still can’t reveal client information in response, unless your client gives informed consent. Informed consent may be a good option if responding would be in the client’s best interests (for instance, if the client’s character was impugned along with yours, they may want to push back).
This brings me to the question I get most often—should I respond at all? In many cases, I do advise just letting the comments be. Depending on your practice area, this may just come with the territory, and responding might lend itself to a “Streisand effect” where you end up bringing attention to something that wasn’t going to get much otherwise. Letting it go may let the comment age and fall off the top of Yelp or Google and better reviews may appear in their place. (As an aside, you can encourage clients to write a review or testimonial for you, so long as you’re not paying or otherwise providing anything of value for the review or asking the reviewer to make false or misleading representations about you.)
If you do feel compelled to respond, short, sweet, and generic may be the way to go. A Pennsylvania opinion suggested:
A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution, I do not feel at liberty to respond in a point-by-point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.
I like the elegance, but even that, depending on exactly what the poster said, may confirm that the complainer was a client, which by the letter of 1.6 is not permitted. Given Wisconsin’s relatively hardline view on this, it may be better to simply state that professional considerations prohibit you from responding in this forum and leave it at that (though again, that might invite more attention and back-and-forth than would leaving it alone).
I’m not sure I actually like how restrictive 1.6 can be; it’s human nature to push back on criticism you believe is unwarranted and it’s a bit unbalanced that a client can say whatever they want with relative impunity so long as it complies with the site’s terms of service. (Yes, I know you’re saying: “What about defamation, Stacie?” Can’t a lawyer sue their client for defamation?” Maybe, but that opens the door wide open for discovery, and more unwanted publicity, and probably a counterclaim for malpractice or a retaliatory grievance or both, and depending on exactly what the client said, the lawyer may have to try to prove that their online criticism actually caused them financial harm. Good luck?)
As a final comment, the ABA Model Rules, and their state equivalents, always lag behind technological developments—by the time a Rule is revised to reflect new tech and then adopted in the states, that tech may actually be old tech. The Model Rules and comments do mention the Internet, a little, but recent revisions to reflect technological changes seem to extrapolate old rules to new situations. Take a look at the 2018 revisions to the “Sevens”—the advertising rules. The revisions streamline prior versions and the comments explicitly mention Internet chat rooms and text messages as not being “live person-to-person contact” for solicitation purposes while video chat and telephone are (because the former allow time for response and reflection and in the latter the potential client is on the spot), and indicate that a lawyer or law firm can have a distinctive website address or social media username so long as it’s not misleading, but these aren’t revolutionary. It has always been a violation to communicate in a misleading manner; a deceptive URL is just another way.
Will there ever be Rules that more explicit and reflective of the way lawyers and their clients interact online (as well as reflective of human nature and the desire to defend oneself against unfair criticism)? I don’t have the answer, but for now, the Rules are generally interpreted to limit such discourse, and perhaps forbid it altogether when the topic is criticism.