The main ethical concern regarding any response a lawyer may make to an online review is maintaining confidentiality of client information. As advised in Formal Ethics Opinion No. 480, lawyers cannot blog about information relating to a client’s representation without client consent, even if they only use information in the public record, because the information is still confidential. Rule 1.6 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.
“Online criticism is not a ‘proceeding’ in any sense of that word, to allow disclosure under the exception ‘to respond to allegations in any proceeding concerning the lawyer’s representation of the client.’ Second, responding online is not necessary ‘to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved.’ A lawyer may respond directly to a person making such a claim, if necessary, to defend against a criminal charge or civil claim, but making public statements online to defend such a claim is not a permissible response. Thus, the remaining question is whether online criticism rises to the level of a controversy between a lawyer and client and, if so, whether responding online to the criticism is reasonably necessary to defend against it.
“The Committee concludes that, alone, a negative online review, because of its informal nature, is not a ‘controversy between the lawyer and the client’ within the meaning of Rule.”
The Opinion then goes on to provide some Best Practices, which might include one or more of the following:
- Request that the host of the website or search engine remove the post.
- Lawyers should give serious consideration to not responding to negative online reviews at all. Any response may engender further responses from the original poster, and/or other further activity, and/or higher search result rankings.
- Request to take the conversation offline and to attempt to satisfy the person privately.
- If the poster is not a client or former client, the lawyer may respond simply by stating that the person posting is not a client or former client, as the lawyer owes no ethical duties to the person posting in that circumstance. However, a lawyer must use caution in responding to posts from nonclients. If the negative commentary is by a former opposing party or opposing counsel, or a former client’s friend or family member, and relates to an actual representation, the lawyer may not disclose any information relating to the client or former client’s representation without the client or former client’s informed consent. Even 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 client information. The lawyer is free to seek informed consent of the client or former client to respond, particularly where responding might be in the client or former client’s best interests. In doing so, it would be prudent to discuss the proposed content of the response with the client or former client.
- If the criticism is by a client or former client, the lawyer may wish to consult with counsel before responding.
- Acknowledge that the lawyer’s professional obligations do not permit the lawyer to respond.
ABA Formal Opinion No. 496 (Jan. 13, 2021).